Industrial Relations Commission of New South Wales CITATION: Cieron Green and Garden Magic Harrington Park Pty Ltd. [2005] NSWIRComm 1144 APPLICANT Cieron Greene PARTIES: RESPONDENT Garden Magic Harrington Park Pty Ltd FILE NUMBER(S): 74 of 2005 CORAM: Murphy C CATCHWORDS: Applicant dismissed for alleged serious and wilful misconduct in threatening respondent representative with knife. Credibility of all witnesses paramount in determining claim. Independence and reliability of witnesses assessed. Applicant and his witnesses evidence to be preferred over those of respondent. Applicant accordingly found to have been unfairly dismissed for false reason, involving police action against applicant. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Wang v Crestell Industries Pty Ltd HEARING DATES: 05/16/2005; 05/17/2005; 07/05/2005 EXTEMPORE JUDGMENT DATE : 09/20/2005 APPLICANT Cieron Greene represented by Ms T Moriarty of LHMWU LEGAL REPRESENTATIVES: RESPONDENT Mr J Tunks of Marsdens Solicitors DECISION: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Date issued: 20 September, 2005. Matter No IRC 74 of 2005 CIERON GREENE AND GARDEN MAGIC HARRINGTON PARK PTY LTD Application by Cieron Greene re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1144 1 Mr Greene was employed as a chef in the Cafe Rose within the Garden Magic Garden Centre at Narellan from December, 2003 until his dismissal, twelve months later on the 18th December, 2004. 2 The applicant was represented by Ms T Moriarty of the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch, whilst the respondent was represented by Mr J Tunks of Marsdens Solicitors. 3 The matter was the subject of conciliation on the 10th February, followed by a further conference on the 18th March, after which the Commission was required to list the matter for hearing which commenced on the 16th May, and continued on the 17th May. Final submissions were heard on the 5th July, 2005, after which I reserved my decision. BACKGROUND 4 The applicant maintained that his dismissal arose from the respondent's restaurant was a reaction to certain events occurring at the staff Christmas Party on Friday night, 10th December, 2004. Towards the end of that evening, events went awry when a female staff member by the name of Jodie Williamson, employed as the head waitress at the restaurant, known as the Rose Cafe, approached a group of young women talking together, which included the applicant's wife, Mrs Caroline Greene. Miss Williamson invited the young women in the discussion circle to dance. The invitation was declined on the basis that the girls were talking, but Miss Williamson raised her voice in demand, and Mrs Greene said "we don't want to dance", to which Miss Williamson replied, "I'm not talking to you, you Irish cunt". Mrs Greene, according to her husband, replied to this, "I don't want to argue with you". More names were directed at Mrs Greene, according to Mr Greene, with the comment, which included, "that she should not have been in this country" (being from Ireland). This drew the final comment from Mrs Greene, "go away, you're only a slut, leave me alone". 5 At this point Miss Williamson picked up a wine glass, and according to the applicant's uncontested evidence, smashed it on the head of Mrs Greene. 6 According to the applicant, the respondents in the form of Mr Barr and the other representative of the owners, called Marie throughout these proceedings, immediately took the side of Miss Williamson, and actually abused Mrs Greene, notwithstanding that by the applicant's account, she was actually the innocent victim. Marie abused Mrs Greene, and according to Mr Greene, made no effort even to inquire as to her wellbeing, despite the physical assault visited upon her; failed to call the police; and sent the applicant and his wife home with the comment from Marie, that Mrs Greene deserved what had occurred and, in the words recalled by Mr Greene, said "if I didn't get that fucking bitch out of her garden centre, she would smash her". 7 The applicant maintained that soon after that event, upon querying Mr Barr, he was assured that his job was safe on the basis that the incident was nothing to do with him. 8 It is fair to say that the events set the tone for a tense week for the applicant, involving several conversations between himself and Mr Barr. The contents of those conversations were somewhat contested between the parties, but the broad thrust of them was an effort by the applicant to ascertain whether his position was secure, but at the same time, containing an ingredient of dissatisfaction and complaint to Mr Barr, especially as he was required to continue working with Ms Williamson, when no disciplinary action had been taken against her, for her obvious physical assault upon his wife at the Christmas Party on the 10th December. 9 Also of some importance, was the partially contested evidence that Mr Barr had attempted, through Mr Greene, to have his wife desist from involving the police in the incident. The inference the Commission was supposed to draw was that the failure of the applicant to be persuaded to have his wife not go to the police, accounted for the respondent's aggressive tone in the crucial conversation about kitchen performance on the 18th December, leading to his dismissal. The applicant contended that at the time of the hearing, he was still unaware of the reasons for his dismissed, not being properly advised by the respondent. 10 The full circumstances of the dismissal can be shortly outlined by way of background to the more precise evidence to follow. 11 As already touched upon, the respondent at no stage in these proceedings contested the applicant's version of the events of the Christmas Party involving Ms Williamson assaulting the applicant's wife on 10th December, and instead relied upon an entirely different genesis for the termination of the applicant. The respondent contended that the applicant had threatened him with a thirty centimetre carving knife, following an attempt by Mr Barr to discuss poor performance during the previous week and in particular, the day before, in the preparation and delivery of food within the restaurant. 12 According to the applicant's evidence, his dismissal occurred with a surprise visit by Mr Barr to the kitchen, around 11.30am on the 18th December, 2004. On that occasion Mr Barr entered the kitchen, gruffly telling a young waitress named Sarah to get out (reducing her to tears), closing the kitchen door behind her and immediately rounded upon the applicant in an abusive tone, in respect of some problems which had arisen the previous day, Friday the 17th December, with garlic bread and salad dressing. Again, according to the applicant, his assistant cook, Mrs Tracey Carter, quickly intervened to assure the respondent, Mr Barr, that it was not the applicant's fault that the error in respect of the garlic bread had occurred, citing problems with the capacity of the toaster. This drew an immediate hostile response from Mr Barr, who abused Mrs Carter for her intervention and her remarks about the kitchen, and forthwith dismissed her by telling her, in the rudest terms using expletives described later, to leave his property. According to both Mrs Carter and the applicant, she was also then denied access to the telephone attached to the wall in the kitchen, with the remark from Mr Barr, "don't touch my fucking telephone". According to Mrs Carter and the applicant, Mr Barr reacted to the attempt by the applicant to intervene on behalf of Mrs Carter, when he asked Mr Barr not to speak to her in the fashion that he had, by then saying to the applicant, "and I've got a Christmas present for you, I'm going to dismiss you on Christmas Eve". 13 Around the time of Mrs Carter's departure from the kitchen, (she having heard the respondent dismiss Mr Greene with those words), the respondent claimed, by contrast, that the applicant had picked up a carving knife, pointed it towards him with the words, "you don't know me, I'm going to get you with this". 14 The respondent contended that the applicant therefore committed serious and unlawful misconduct, deserving of summary dismissal and did not contest that he dismissed the applicant, on the basis of the applicant's threats, but denying that he had dismissed him with the words earlier claimed by the applicant, i.e. "I've got a Christmas present for you etc.". That evidence is dealt with later. 15 To support the claim that the applicant had threatened him with a knife, Mr Barr bought evidence from another employee, by the name of Michael, that he had rung Michael from the kitchen telephone, telling him to get the police because the applicant had threatened him with a knife. The respondent also relied upon the more important, but also controversial, evidence of Ms Williamson, the dining room supervisor. 16 The police were called and arrived soon afterwards, when the applicant was still on the premises signing the timesheets, collecting his kitchen tools and having issued quick instructions to the waitress staff for the dispatch of the meals already prepared. The Applicant's Evidence 17 By way of lead up to his dismissal on the 18th December, the applicant gave evidence as to the conversations he had with Mr Barr between the 10th December, after the Christmas Party incident, and his dismissal a week later on the 18th December. He gave evidence of attempting to become reconciled with what he perceived as the unfair reaction to his wife, particularly by Marie as mentioned earlier, after she was assaulted by Jodie Williamson by being smashed on the head with a glass of wine. 18 On the 11th December, the day following the Christmas Party, the applicant claimed to have worked normally, without having any exchange with Miss Williamson, who he was required to work with on that day, despite the incident the evening before. However, after work that day, he rang Mr Barr who had long before given him a general invitation to ring him with any problems. The applicant gave evidence that Mr Barr's reaction to his phone call was to the effect "who the fuck do you think you are, ringing me at home on a Saturday night". The applicant responded, "Jim, I'm only ringing you for your advice". The applicant commented how he was finding it difficult to work with Miss Williamson in the circumstances. According to him he was roundly told to, "grow up and be a big boy". The applicant then asked that Miss Williamson not work the next day, Sunday the 12th December or alternatively that he be given the day off for the purpose of "getting his head around what had happened". 19 Mr Barr's response, according to the applicant, was, "if you don't come Sunday, don't come Monday". 20 At the end of that Monday's work he was called to the office by Mr Barr. The applicant first asked whether his job was safe and received an assurance of such - that he had, "nothing to worry about". The applicant revisited the scenario of the Christmas Party shortly before, telling Mr Barr that he was unhappy with how Mr Barr and Marie had handled the situation. Surprisingly, Marie had actually said to Mr Greene about his wife, straight after the attack, words to the effect; "get that bitch out of here before I smash her". The following day, that is Tuesday the 14th December, Mr Barr asked the applicant to tell his wife not to inform the police. The applicant answered Mr Barr on that occasion that that decision was out of his hands as his wife had already made a statement to the police on the night. The applicant gave evidence that he thought that Mr Barr did not believe him at the time. However, the police called at the centre on Thursday, the 16th December (two days before the dismissal), but Mr Greene was unaware of what was said to the police. He gave evidence that the next day, Friday the 17th December, both Mr Barr and Marie had ignored him. 21 The applicant then gave evidence as to the events of the Saturday, 18th December, which he described as a very busy day at the Rose Café, roughly outlined earlier. He was aware that on the previous day, the 17th December, on Friday, also a very busy day, that there had been customer complaints in respect of the inability to provide sufficient garlic bread on time and that there was no dressing on a particular salad. 22 On Saturday, the 18th December, the applicant claimed that Mr Barr entered the kitchen, closed the door, and rudely announced to the applicant and the assistant cook, Mrs Carter, that if there were any more problems with the cuisine on that particular day "that fucking heads would roll". Mr Greene claimed that he and Mrs Carter were both shocked and listened to the problems of the day before, but at this crucial point, Mrs Carter intervened to attempt to explain to Mr Barr that it was her that had made the mistake with the garlic bread order the day before, and that this had occurred because of how busy they were. The respondent was unreceptive to her explanation and when Mrs Carter referred to the inadequate garlic bread toaster and the kitchen being too small for the number of people working in it, the respondent had reacted angrily, saying that he had designed and built the place and did not need to know how small the kitchen was. Mrs Carter responded with, "well if you designed it, you've never worked in it", which led to Mr Barr shouting at her "shut your fucking mouth". Mrs Carter reacted with "you can't speak to me like that", but was then told by Mr Barr, "get the fuck out of my kitchen". Mrs Carter, at this stage went to the telephone on the wall to ring her husband to come and collect her, but at that stage Mr Barr advanced on her, pulled the phone out of her hand and told her, "get your fucking hands off my property". 23 It was at this stage that the applicant claimed to have said to the respondent "Jim, you can't do this to the lady". Mr Barr told him to shut up and that he was going to sack him on Christmas Eve with the words, "this is my Christmas present to you, I'm going to sack you on Christmas Eve". To which the applicant challenged, "how can you do that". 24 In answer to that query from the applicant, the respondent replied, "simple, you are sacked, now get out of here", to which the applicant replied, "on what grounds?" and with the applicant's insistence upon knowing why he was being sacked, the respondent merely responded, "get the fuck out". The applicant contended to the Commission that at that stage, he attempted to ring his wife on the telephone saying to the respondent, "the only way I am leaving here was that if you call the police or until I can speak to my union representative". It was for this reason that he rang his wife to get the number of the union, and when his wife advised that she was unable to find the number, Mr Barr had said to him "that he did not give a fuck about me or my union". At the point where the respondent had told him to leave, the applicant observed Mr Barr go to the telephone and heard him calling into the phone, "Michael", to which Mr Greene responded by saying, "Mr Barr, can't you do your own dirty work" - although not hearing what Mr Barr was actually saying, i.e. that he had asked Michael to call the police, claiming that the applicant had threatened him with a knife. 25 At this stage, the applicant thought to himself that this was a lost cause, and he could do nothing about the situation, and at that stage he began to collect his tools to leave, but before he left, signed off from the timekeeping book, and observing that he picked up the wrong steel sharpener, went back to the kitchen to exchange to the right steel. 26 The applicant strongly denied that he had held a knife or anything else near Mr Barr, claiming that he was approximately ten feet away from the respondent and did not go near him at any stage, the only time when he was close was when he went to the telephone to ring his wife. 27 When the police arrived shortly afterwards, they advised him that they were arresting him because he had threatened the respondent with a knife. He denied that allegation there and then, but proceeded to the police station where he spend some four hours being interrogated. He gave evidence of being extremely upset and crying, particularly when his children had come to visit him at the Garden Centre when he was led away by the police. He gave evidence of feeling like a criminal and he was told by the police that while they were not charging him, that he should keep away from Garden Magic, which he agreed to. 28 The applicant prepared a statement for the police which was canvassed in cross-examination with him by Mr Tunks and dealt with later. 29 The applicant also gave evidence that some weeks after his dismissal, he had started work at the Crown Hotel at Camden, commencing there on the 5th January, and on the 14th January, whilst returning from the toilet at the hotel, he observed the respondent and another person sitting there, smiling and laughing at him. He ignored Mr Barr at that stage, but upon checking at a later stage, and thinking that the respondent had left, came across the respondent. The applicant volunteered that he had been foolish in approaching the respondent Mr Barr, and saying to him, "I hope you are happy with what you have put myself and my family through, especially at Christmas time". At that time Mr Barr had responded by telling him to shut his mouth and that he was going to get him fired from the Crown Hotel, because he knew the owner. The applicant responded to Mr Barr at that stage, that he could not get him fired, and with that, Mr Barr raised his hands into the air and shouted, "he's threatening me", to which the applicant responded, "yes, this is typical of you", but with that, the barman came over and said, "I don't know what you are arguing about, but you need to go back to the kitchen". The applicant gave evidence of immediately going back to the kitchen, but a short time afterwards, the police came to the hotel, speaking with Mr Barr for awhile, and then coming to the applicant. The police suggested to him that he takes an AVO against Mr Barr, and that Mr Barr could do the same against him. A couple of days later, Stewart, the head waiter, approached him saying, "Jim Barr had rung his brother", the boss of the hotel, to complain about the applicant, and that he was therefore dismissed. The applicant gave evidence then of having lost two jobs because of the respondent. 30 He gave other evidence of the respondent being a rude and arrogant man, and that the respondent had an ulterior motive on any occasion that he was friendly with him and that whilst he was angry therefore at being sacked, he denied being angry enough to use a knife against the respondent. 31 The applicant gave evidence of acknowledging some difficulties at some earlier stage with certain members of staff, but that the off-shoot of those problems was his promotion and the sacking by Mr Barr of one of the gentlemen, named Paul, who he had a difficulty with. He denied in the process however of having a conspiracy theory/complex. 32 He gave an explanation for giving this evidence on the basis of what the respondent had said about Mr Greene in the conciliation conferences, although not very relevant to the actual evidence of his dismissal. 33 In answer in cross-examination to questions about the incident at the Christmas Party, the applicant gave evidence that Miss Williamson had pleaded guilty to the charge of assault against his wife, and whilst he had some apprehensions about working with her, and did have on and off problems generally with Miss Williamson, (as well as believing that she should have been sacked over the incident of the Christmas Party), he did not really mind working with her and had no problems going about his job the next day. He qualified that answer to say "that he wasn't exactly over the moon to work with someone that had smashed a glass over his wife's head", but that his professionalism required him to continue to work with her. 34 The applicant's evidence in this area was somewhat confused as to whether or not he had been unhappy to work, with Ms Williamson, but generally the Commission was satisfied that his answers reflected not much more than some difficulties communicating or expressing himself. There was no doubt, despite some lack of precision, that his evidence was consistent that he had approached the respondent about his discomfort at working with Miss Williamson, but there was no suggestion of abuse or other overt reactions against her. 35 In respect of the immediate aftermath of the Christmas Party and the approach to him by the respondent for his wife to not report the matter to the police, the applicant repeated his evidence that he had been ignored by the respondent's Jim Barr and Marie on the Friday before his dismissal. He knew this, because Mr Barr had walked past him and didn't say anything. He gave evidence that Mr Barr had not said anything about the garlic bread or the salad dressing on Friday, the 17th, the day before his dismissal, when the problem had happened, and reinforced that he had been ignored by both Jim Barr and Marie that day. 36 He gave evidence of previous instances where Mr Barr had reacted strongly over fairly trivial instances with other staff, and in one instance, giving orders that a waitress should be sacked. 37 The applicant, when pressed by Mr Tunks, repeated his evidence under cross-examination that he had been asked by Mr Barr to tell his wife not to approach the police over the incident at the Christmas party, and reiterated his other evidence in respect of the exchanges between him and Mr Barr the week prior to the dismissal, where he was gruffly responded to by Mr Barr, when attempting to raise the issue on Saturday the 11th December, detailed earlier. 38 Whilst there was some variation in the applicant's evidence as to Mr Barr's exhortations to him to have his wife desist from pressing charges against Miss Williamson, that difference in what was said, was understandable as minor and relying upon memory. It did not detract from Commission's acceptance of his evidence, that there was actually an attempt by Mr Barr to therefore influence the situation in favour of Ms Williamson, arising from 10th December with the assault by Miss Williamson upon the applicant's wife. There was also evidence by Mrs Greene that Miss Williamson had been approached by Mr Barr to write an apology to her. The apology letter was put before the applicant in evidence. 39 The applicant repeated several important aspects of his evidence when tested in cross-examination, such as being ignored by the two respondent representatives on the Friday, the day before his dismissal; that the respondent had commenced the conversation when bursting into the kitchen, causing a young 17 year old waitress by the name of Sarah to be told to get out, with the words, "excuse me, get out", but causing that waitress to cry from the rudeness of his approach, and then to immediately round on the applicant and Mrs Carter with the comment, "if there is any problems with any food here today, heads are going to fucking roll". The applicant also again verified the evidence of Mrs Carter that she had intervened to say that it was not the applicant's fault in respect of the complaints the day before, and reiterating her comments about the size of the kitchen, the toast rack grill and being told by Mr Barr, "shut your fucking mouth", that he had built the kitchen and he did not need to know from her how small the kitchen was, and following on to say to Mrs Carter, "get the fuck out of my kitchen" and thence grabbing the telephone from her when she attempted to ring her husband to collect her after being dismissed. Likewise, the applicant was required to reiterate his evidence at that stage, saying to the respondent, "you can't treat the lady like this", to which the respondent responded by saying, "I've got a Christmas present for you, I'm going to sack you on Christmas Eve". Whilst the applicant gave some slight variation on those words when pressed on several occasions by Mr Tunks, the Commission had no reason to believe that he had concocted that evidence, and likewise his evidence of then saying to the respondent, "on what grounds are you sacking me", and the respondent saying at the crucial time, "you're sacked now, simple, you're sacked now". The applicant likewise was forced to reiterate his evidence of saying to the respondent that he was not leaving until he had spoken to his union representative or the police, ringing his wife to attempt to get the union's number, and having the respondent say to him, "I don't give a fuck about you or your union". The applicant gave a slight variation on that in saying that Mr Barr had also said, "I don't give a fuck about you, your family or your union". 40 The applicant's evidence was consistent with that of another witness, Ms Candle Faithful as to the respondent leaning out of the door with the telephone to ring Michael. 41 Exhibit 3 was a document tendered by Mr Tunks during the cross-examination of the applicant, which was a layout of the kitchen with nine photographs of the area - relevant to evidence as to the location and distances of the various parties. 42 The applicant, towards the end of his cross-examination, stoutly denied using knives in preparation of food at the time the respondent and he were arguing about his dismissal, and gave evidence of holding a bowl of sausages during most of that time. He gave evidence of remaining some ten to fifteen minutes after his dismissal, to dispatch the remaining meals and to clean up the kitchen. 43 The matter was adjourned to allow the applicant to read the statement that he had provided to police in respect of the incident and was taken to some inconsistency in his comments to the police and his evidence before the Commission was the distance between he and Mr Barr at the time of the argument. The applicant dismissed the differences as being unimportant and the reflection of his distraught state of mind when being kept for four hours at the police station, when all he had in mind was a return to his upset family. 44 Again, at the end of his evidence the applicant was taken to his attitude towards Miss Williamson in the final day of his employment, and denied being very emotional and concerned about what had happened the week before at the Christmas party on the basis that he tried to "blank it out of his mind" and get on with his job. He denied specific areas of the evidence of the respondent, Mr Barr, when put to him at the end of his evidence. 45 He confirmed the sacking of Mrs Carter immediately prior to his own dismissal, and despite being taken back to the issue on several occasions by Mr Tunks, provided a consistent account of what was said, which was in slight contrast to some other areas of a secondary nature in the applicant's evidence where he showed some effects of the loss of detailed memory, but which seemed likely to merely indicate a lack of rehearsing. 46 The applicant's case was also supported by the statement, Exhibit 5, and oral evidence given by Lisette Pomering. 47 The thrust of Ms Pomering's evidence was that in the two and half years approximately that she worked at the Centre, she had found the applicant, Mr Greene, to be extremely pleasant and caring and always a complete gentleman and had relayed compliments about the food back to Mr Greene as to quality and variety of the meals being served. She supported other evidence which showed that the restaurant had a large capacity of up to two hundred people, which usually occurred on Saturday and Sundays, and despite that pressure, she had never witnessed the applicant being rude or irrational. She briefly touched upon the Christmas Party incident on the 11th December on the basis that she had not witnessed the matter because she kept away from Miss Williamson, because of her unruly behaviour that evening. Respondent's Evidence : 48 Mr James Barr gave evidence on behalf of the respondent, commencing with his statement - affidavit marked Exhibit 10 in these proceedings. 49 He was the General Manager of the Garden Magic Complex for the past four years prior to the applicant's dismissal. 50 He gave evidence that since the Christmas Party on the 11th December, 2004, the applicant had been acting very strangely and "not able to get his head around the job for which he was employed". His evidence then shifted to events a week after the Christmas Party, i.e. on Saturday, 18th December, when he attended the cafe to speak with Mr Greene about complaints that he had received the day before, concerning the quality of meals and the amount of time the meals had taken to reach their destination. He walked into the kitchen and began discussing the matters with Mr Greene and the assistant cook, Tracey Carter, at which point, Mrs Carter turned and said to him, "it's impossible to work in this kitchen, you fucking try it". Mr Barr gave evidence that he responded, "there is no need to speak like that, you can leave", at which point, Mrs Carter took off her apron and left the kitchen. Mr Barr closed the door after she left, and then said to the applicant, "please get on with it, we have a very busy day". The applicant said at this point, "there is something going on around here and I'm going to find out what it is. It's that fucking bitch outside, she's the reason for all the problems yesterday". Mr Barr reminded Mr Greene that Ms Williamson, to whom he was referring, was a waitress staff and not in the kitchen, and that he was responsible for getting the meals out, but that if his reaction is all about the previous 11th December event at the Christmas Party, "we have all got jobs to do, let's move on". 51 At this stage, Mr Barr contended that the applicant yelled, "she shouldn't be here. She should have been fucking sacked". According to him, Mr Barr responded, "stop yelling and stop swearing, all the customers can hear you and it's packed out there". The applicant at this stage said, "you're a fucking prick". Mr Barr responding, "if you continue to speak to me and swear to me like that, I'm going to send you home". The applicant said, "you can't send me home, I'm staying", to which Mr Barr said, "fine, but get on with your job". 52 At this stage, it was contended by the respondent, the applicant took a step forward after picking up a butchers knife, and pointed the knife in Mr Barr's face, with very little space between them, and the knife approximately a metre in his face, saying, "you don't know me. You're a fucking cunt. I'm going to give this to you. I'm going to give you this. I'm going to get you". Mr Barr said, "Cieron, you need to go home. Go home. You need to go home", to which the applicant replied, "are you sacking me, you fucking cunt?" to which Mr Barr said, "yes, I am. Put the knife down. You need to put it down". 53 Mr Barr immediately opened the kitchen door in the hope that other people would see the applicant. At this stage he also picked up the telephone and called Michael, the nursery manager, and asked him to call the police. After getting off the phone, he noticed that the applicant had put the knife down, but was still screaming, yelling, and swearing. 54 Mr Barr repeatedly claimed in his evidence that whilst the applicant was holding the knife, he felt terrified. He also expanded his evidence to describe the applicant's physical appearance of being grinding his teeth with a wild look on his face, and being convinced that he was going to use the knife on him there and then. 55 The next issue covered in the respondent's evidence was a letter sent by him to the superintendent of Camden Police Station dated the 14th March, 2005 which followed an earlier police statement made by him on the day of the events leading to the applicant's dismissal on the 18th December, 2004. He verified that the applicant had been arrested on that day, but no charges were laid, as it was the applicant's word against that of Mr Barr. Nevertheless, the police officer involved at the time, suggested he take out a PVO (personal violence order) against the applicant. 56 Mr Barr then gave significant evidence that a few days after the events, Ms Jodie Williamson, who he described as the restaurant manager, came to him to say that she had heard the applicant threatening him, and that she had also seen the applicant threaten him with a knife. Although he was reluctant to involve Ms Williamson, particularly as she had been involved in the unfortunate incident involving the applicant's wife on the 10th December, he accepted her offer to give evidence. 57 Mr Barr also dealt with the events subsequent to termination, already given in evidence by the applicant as to the happenings on the 14th January, 2005, at the Crown Hotel in Camden, when Mr Barr, together with his brother, was standing at the bar when the applicant, who at that stage had obtained employment at the restaurant of the hotel, approached him and standing and leaning over him started threatening him in front of the bar staff. After telling the applicant to leave him alone, the applicant said, "you're going to get it. I'm going to give it to you". The applicant was escorted back to the restaurant by the hotel manager. Mr Barr called the police and reported the incident and the police arrived soon afterwards, taking a statement from Mr Barr, informing him that they were also aware of the incident at the Garden Magic Centre. They informed the applicant not to approach Mr Barr again, and again it was suggested to Mr Barr that he take some precaution and on this occasion take out an AVO again the applicant. Proceedings in respect of the AVO took place at Camden Courthouse on the 17th February, 2005, which was attended by Mr Barr and the matter was adjourned, with another hearing date given the 3rd March. On that occasion, Mr Barr was informed that the magistrate had stood the matter for hearing on the 25th May, with no interim AVO being taken out. He informed his solicitor that he was worried about his safety, given the delay. He informed the solicitors that Ms Jodie Williamson was prepared to give a statement in respect of the threat. 58 Mr Barr also gave evidence in respect of the action taken by the applicant's wife against Ms Williamson, when those matters came before Camden Court on 17th February where Ms Williamson was charged with assault on Caroline Greene as a result of the events of the 10th December Christmas Party and that matter was concluded on the basis of Ms Williamson being given a section 10 bond. On that occasion, the applicant had said to Mr Barr, "don't worry I'm going to get you. You'll get yours". The Commission notes that there was no opportunity for the applicant to refute that evidence. 59 His statement concluded by strongly denying that the applicant had been unfairly dismissed and indicating that he'd briefed his solicitor about the possibility of charging the applicant with assault. 60 When taken to his statement by Mr Tunks, the respondent also indicated that Mrs Tracey Carter had attempted to make a telephone call after being told to leave the kitchen. He acknowledged taking the phone from her in a very heated environment and merely said to her, "you have to leave now, there's phones outside, plenty of them, leave now". This was added to his statement and pertained to the evidence of both Mrs Carter and the applicant in that connection. 61 Under cross-examination Mr Barr claimed that on a few occasions he had spoken to the applicant about issues throughout the course of his employment, about his performance, claiming that female waitresses had complained about being sexually harassed by the applicant. On that occasion, he claimed to have said to the applicant, that he needed to sort it out, being concerned that the information would reach the applicant's home. He left that matter to the applicant to rectify. When pressed, he suggested that the nature of the behaviour of the applicant was to speak to female staff in a sexual manner and he was told by Mr Barr to stop that conduct, which he believed the applicant did take notice of. 62 Mr Barr went on to suggest that he warned the applicant about various matters on many occasions and therefore verbally disciplined him. 63 When pressed, he suggested that there was some three occasions where he disciplined the applicant in that manner. When questioned in cross-examination, three examples of such matters not included in his witness statements, Mr Barr gave an instance where a female staff member had come to him in tears to complain about the applicant's approach to her saying, "you're walking around like you're got a carrot up your arse, you need a good shag". Again the Commission notes the lack of opportunity for Mr Greene to respond to this evidence. 64 Mr Barr was pressed as to the other two instances he claimed to have disciplined the applicant and in the second instance, again involved his conduct in the applicant speaking about sexual matters to a female staff member and giving details to that staff member of oral sexual experiences between his wife and himself. Mr Barr again claimed to have called the applicant aside saying, "you need to hose it down. You need to sort it out. You need to stop talking to people in this manner". At that point, Mr Barr claimed to have given the three examples, but when pressed to give the actual third example, claimed that the applicant, in front of a group of staff members, claimed not to have been able to turn up for Sunday work because of group sex with a female neighbour. On that occasion, he cautioned the applicant. 65 When taken during cross-examination to the issue of the assault upon the applicant's wife by Jodie Williamson, Mr Barr first responded that there were lots of conversations that evening, but could not remember as to whether he had spoken to Ms Williamson about her behaviour and finally agreed that he didn't believe that he had spoken to her, commenting that it was, "nothing to do with me". He then suggested that he was confused that the question concerned the applicant's wife and not Ms Williamson, and then confirmed that he had spoken to Ms Williamson. 66 Mr Barr gave evidence of having told Ms Williamson that he "could not believe what she had done" on the night of 10th December to the applicant's wife, and that it was absolutely unacceptable no matter what, and when asked if he had spoken to her after that occasion, he claimed to have spoken to her then on the following Monday, reiterating the same sentiments. He agreed however, that he had taken no disciplinary action against her. 67 He also claimed that the applicant had rung him on the Saturday following the incident, saying that he wanted Ms Williamson sacked as he could not work with her. He told the applicant in that Saturday night phone call made by the applicant to him that he would investigate the situation upon return to work on Monday. It did not worry him that the two were forced to work together. He claimed that given the work had to commence the day after the incident, there was nothing he could have done. He spoke to the applicant on Monday the 13th December about the incident, and in that conversation, when the applicant informed him that his wife was going to report the matter to the police, he urged the applicant to tell his wife, "to take some time to gather her thoughts and calm down and collect herself.......just calm down so that she doesn't have a heart attack over this and then if she felt like calling the police after that time, then she could do so.......as long as she's calm about it". 68 He repeated under cross-examination that his only motive was to ensure that the applicant's wife did not act irrationally in advising the police. He went on to deal with the fact that the applicant, in the following week had acted strangely, describing that behaviour as, "an uncaring manner"......"walking around with his head looking at the ground, and mumbling to himself". He went further to claim , "his work performance dropped". 69 Mr Barr then went on to then speak about the day before the applicant's dismissal of the 18th December, claiming that on Friday, the 17th December, there was an enormous amount of meals that weren't able to be charged to patrons for various reasons. He went on to instance that, "no dressing on salad, burnt garlic bread, steaks not cooked properly, a whole various reasons". The complaints had been made directly to him and to Ms Williamson, as the senior waiter. 70 Significantly, he testified that such conduct was, "very unlike Cieron". He went on to claim that there were complaints every day that week. When pressed, he denied making up the issue of the complaints and repeated that he was not the only person to received them and to reaffirm that it was unusual for such complaints to be made whilst the applicant was chef. 71 Again, when pressed as to when the alleged complaints occurred, he gave the following testimony, "I don't know. I don't know. Our business isn't a cafe. We are a very large organisation. A very small, large organisation and the cafe is an extremely small part of our business. We have lots of other things to do and other lots of business to run within that complex". 72 He next claimed, to have taken the complaints to the applicant on an ongoing basis over the week prior to the applicant's dismissal. 73 He denied that the applicant had asked him for time off following the Christmas Party incident, and denied that he had said to the applicant, "if you don't want to work Sunday, then don't come Monday". 74 In another area of his evidence, he repeated that he did not dismiss Mrs Tracey Carter, and as to the question of why he did not contact her after the manner in which she left, he claimed that is was, "not my job". He claimed that his advice to Mrs Carter, that, "you can leave" was merely that she should get out of the kitchen. 75 He denied saying to Mrs Carter, "get off my fucking property. Get off my fucking property" or that he snatched the phone, saying to her, "I told you to get off my fucking property". His motive in sending her away was that he wished to, "try and settle and hose things down and settle things down a bit" and closed the door behind her. He had told her that there were plenty of phones outside for her to use and although acknowledging knowing that Mrs Carter was attempting to ring her husband, later in his evidence, disclaimed knowing why she wished to call her husband. He did not ask her because he had, "more important issues at hand". He later also acknowledged seeing Mrs Carter sitting in the car park, waiting for her husband to pick her up and observed her finally being driven away. He acknowledged knowing that Mrs Carter was there to cook the lunchtime meal, when the argument and applicant's dismissal occurred at a quarter to twelve. Although it did concern him at that stage, after he dismissed Mr Greene that he had no cooks - whilst one of them (Mrs Carter) was sitting in the car park, waiting for her husband to take her home - it did not occur to him to invite her back, because he had more important issues at hand. 76 In the continuation of his cross-examination, Mr Barr claimed that the applicant was "yelling at the absolute top of his lungs, threatening and swearing", whilst he, Mr Barr, was trying to calm the applicant down, and that he did not change his tone throughout the conversation with the applicant, and did not swear at the applicant, and neither was he angry at the applicant. He reiterated that the knife the applicant was allegedly holding, was one metre from his face. He could not agree that the applicant wanted to call his union on the telephone at the time by first saying, "not to my knowledge. There was a lot of screaming going on, a lot of yelling and swearing", but then claimed to be "absolutely" sure that the applicant was not attempting to call his union on the telephone. Mr Barr emphasised again that the applicant was dismissed following his words to the applicant, "if you continue to speak to me like this, and swear at me like that, I'm going to send you home". It was after that, that the applicant produced the knife, for which he was dismissed. 77 When the applicant had said to Mr Barr, "you can't send me home, I'm staying", he had said, "fine, stay". "At the end of the day I was happy with that. That was what we were trying to achieve - that's what I was trying to achieve. I said, "fine, stay and lets' get on with the job". 78 He claimed that he had told the applicant to put the knife down on a couple of occasions and then went on to say how terrified he was, describing the length of the knife, and how the applicant was, "extremely, extremely, very, very angry, wild. As in wild, very, very angry as in wild, to the point that I thought he could hurt someone. That's what I mean by wild". He went on to give a vivid description of the applicant's alleged appearance and reiterated what he allegedly said by way of threat. 79 Mr Barr then went on to speak about the post dismissal incident at the Camden Hotel, where again he testified that the applicant had threatened him, where he was forced to call for the manager, when the police were again called. 80 He denied making up the story of the knife to justify his dismissal of the applicant. He claimed that the applicant's conduct was still subject to investigation by the police with the possibility of criminal charges and to claim "it is being reinvestigated right now" (that is the time of this hearing). 81 The respondent did not recall seeing the applicant carrying a bowl of sausages at any stage, as was the evidence of Mrs Carter and Ms Faithful, and the applicant himself. The evidence of Mr Michael Harloff 82 Mr Harloff occupied a middle management position associated with the garden centre of the respondent, and provided his evidence initially in respect of Exhibit 11, and in his oral evidence verified that he had received a telephone call from Mr Barr on the 18th December saying, "Cieron has just threatened me with a knife. I've just sacked him and he won't leave the premises". Mr Harloff, on the basis of that call, called the police after he hung up from Mr Barr. 83 He also gave evidence that Mr Barr had sounded very, very scared on the telephone. The evidence of Jodie Williamson 84 The evidence of Ms Williamson was contained in Exhibit 12 as well as other matters in her oral evidence in her statement. 85 Some key issues were dealt within her statement, beginning with the fact that she was busy ensuring the flow of service during the argument and operating the coffee machine, located near the kitchen, after Mr Barr walked in and closed the door. A few minutes later the door opened and Mr Barr went to walk out, at which point she could hear the applicant yelling from the kitchen at Mr Barr, saying, "you are a fucking cunt and you're going to get it". She then heard Mr Barr ring for assistance, with the applicant still yelling and swearing at Mr Barr. Her statement reads, "it was at this time I had stepped down from the coffee machine to run some coffees....I then looked into the kitchen and on my way at this point I saw Cieron Greene pointing a knife at Jim Barr. She continued on her journey to deliver coffees to a table in the cafe. She attempted to explain to customers about the delay in obtaining meals at that point, offered them drinks and apologised for the disturbance, and resumed her position making coffees. Her statement goes on at this point, "at that point Jim Barr was walking out of the cafe and Cieron Greene was standing outside of the kitchen announcing to the customers sitting inside, how much of a fucking prick Jim Barr was, and that he had intentions of sacking him on Christmas Eve". At this point, the applicant turned to Ms Williamson, saying, "this is all your fucking fault". 86 The rest of her evidence detailed less important issues as to where the applicant went after that phase, such as signing off on the time book when the police arrived and how the applicant was, "acting all calm at this point". 87 The next part of her evidence was what she claimed in respect of the Christmas Party incident where she was charged with assault upon Caroline Greene, the applicant's wife. 88 Ms Williamson denied that she was convicted of the charge of assault upon the applicant's wife, but then acknowledged pleading guilty to the assault and receiving a Section 10 ruling from the Local Court. 89 She began her oral cross-examination by stating that she believed that she had a good working relationship with the applicant and earlier in her evidence she was asked as to when she came forward as a alleged witness to the applicant's threat to the respondent. She answered, "I was asked by Jim Barr", but was unable to state exactly when and although not directly afterwards, thought it was a couple of weeks after the incident". Mr Barr asked her if she would mind giving a statement as to what she'd seen on the day. She denied discussing with him as to why he had asked her for a statement and denied discussing the incident with him prior. She denied speaking with Mr Barr about the matter, after the events on 18th December, despite the fact that she'd observed the police arrive and as to why she did not come forward earlier to Mr Barr in respect of the incident, replied, "I was unaware that this was all going forward - or - I just kept - continued working" and agreed that she did not think it was serious enough to come forward, until asked by her boss, Mr Barr. 90 As to the crucial exchange in the kitchen on 18th December, she did not remember anything else said between the parties, but just that Mr Barr had gone to the phone and asked for assistance, during which she claimed to be only two feet away from the applicant and respondent. Later in her cross-examination, she made this statement, "when the door opened and Jim walked out, Cieron was the one yelling at the time". She claimed that Mr Barr had gone back into the cafe to use the phone, but clarified under further questioning that Mr Barr was , "two feet away at the door, cause that's where the phone is" - specifying again in further questions that he was actually inside the kitchen, but later saying, "he was at the doorway". She could not recall what Mr Barr was saying, "but I don't recall. I know he was calling for help". "I don't recall hearing what he said, but I know he was ringing for assistance". 91 Although acknowledging that she overlooked putting some matters into her statement, Ms Williamson then verified evidence by others on the fact that the young waitress Sarah was crying, being "upset and scared" and "shaken" with what was going on in the kitchen, according to her. She did not ask Sarah what was upsetting her at the time, apparently been unaware of Mr Barr's gruff command to her, shown from other evidence of others closer to the action. She also confirmed that she had overlooked including Mrs Carter's departure from the kitchen. She repeated that it was at the point where the door was opened by Mr Barr, that she saw Cieron pointing a knife at him. 92 When examined on another unusual feature of her statement, i.e. as to the disjointed sequence of her recall of events - out of kilter with the account of others - Ms Williamson claimed not to have been very competent at writing her statement, but that she did not mean to put it down as a step by step process, but did so on the basis, "well it's just how it came to my mind when I was writing it". She denied having a discussion with Mr Barr about the events at the time of the request to prepare witness statements, although later, acknowledged that she thought that he had already told her that the unfair dismissal application had been made. 93 There were other aspects of Ms Williamson's testimony which involve some significant repetition in cross-examination, such as when she went on to say that she could not say how far apart the two were, "I didn't pay attention. It was a quick glance". Neither could she say which hand Mr Greene was supposed to be holding the knife in. When pressed as to how the applicant was holding the knife and after several suggestions were made by Ms Moriarty, Ms Williamson suggested that the applicant held the knife up in the air. She could not recall whether he had both arms in the air. 94 As to how she felt when she saw the scene, Ms Williamson replied, "fearful. Made me uneasy. We were all uneasy". 95 Then followed some apparent contradiction when asked as to whether or not she regarded what she saw as serious at the time. Ms Williamson gave the curious answer, "no", and the question which followed, "did you think Cieron holding a knife to Jim was serious?" The answer is given, "I don't know he was holding a knife - I didn't say he was holding it to him. Like what do you mean by that?" She went on to say, "I mean like one was standing there pointing - arguing, and the other one was standing there holding a knife, saying don't point your finger at me". The following exchange continued: Q: Okay. A: So it's not a matter of - I don't know what you're trying to have me say. I don't know. Q: No, no, I'm not trying - I'm just asking questions, sorry, I'm going you unnecessarily. But I'll ask you some more questions about that. So you don't necessary think that - your saying that you saw him holding a knife, but you're not necessarily saying that he was pointing it or holding it to Jim in a threatening manner, let me put it to you that way? A: No. Q: So you didn't get the impression that he was holding it in a threatening manner? A: I think - well I don't know what you mean by to him or just holding it in general to me, when someone is in an argument, waving a knife around to me is threatening, yes. 96 She went on to confirm the applicant was waving the knife around. When it was suggested to her that it was possible that the applicant was merely holding a knife throughout a heated discussion and merely being animated, talking with his hands at the same time, Ms Williamson conceded that that was possible from what she saw. Q: So you didn't necessarily think he was doing it in a threatening way then? A: The whole thing was ugly and scary. The whole thing was threatening (Ms Williamson curiously made no mention of the alleged verbal threat from the applicant throughout this latter part of her evidence). 97 When further pressed as to whether or not the applicant had been holding the knife in a threatening manner, Ms Williamson seemed to slide away from the issue by repeating that anyone holding a knife during an argument was threatening, and going on to claim that it was in a threatening way. 98 As to another area of her evidence reflecting upon her credibility, in answer to the significant questions as to whether she told anybody about what she saw, Ms Williamson said, "I don't know. I can't remember, sorry. I don't remember honestly". When pressed on that point and following an objection to Mr Tunks, who said, "you didn't say that. She said it was discussed" and with a question from the Bench to clarify, Ms Williamson then strangely contradicted herself by saying, "I said it was discussed, what went on that day, definitely, throughout the staff". However, she could not recall who she had spoken to and then said, "well the day was discussed, yes, in general" and on the same page of evidence said, "I didn't speak about the knife directly that day to staff". 99 These apparent contradictions by Ms Williamson are of some significance. At a further point in her evidence, she said, "it didn't come up in conversation. I'm not going to run out to my staff and say I just saw Cieron waving a knife around the kitchen at Jim", and as to whether she didn't think that was a weird thing to see, she gave the answer, "well, it's an argument, people - it gets heated. Things like that happen", and in the next breath reverted to saying, "the whole thing was scary", but curiously, qualified that answer in the next opportunity by saying, "we were all scared whether we saw a knife or not", but insisted that she was worried about what she had seen. Her chief motivation after the event was to calm the staff, but did not see it as her business to ring the police and did not want to get involved. 100 A further example of the style of Ms Williamson's evidence was that she said she was already, along with other staff, alarmed at the argument that was emanating from the kitchen, and when she saw the knife, it did not seem to alarm her any more than the argument that had already ensured. 101 There was a number of other reasons weakening the evidence of Ms Williamson. 102 Her statement suspiciously only dealt with the central issue of the alleged verbal and physical threat from Mr Greene, overlooking the dramatic exits of Sarah and Tracey Carter. She got the sequence of events out of order, which she appeared to have been already alerted to when it was drawn to her attention by Ms Moriarty, but having not previously sought to rectify the sequence. The overall simplistic structure of her statement displayed a purposeful, rather than open approach to giving her evidence. 103 She claimed to have overheard Mr Greene's verbal threat, when she was poorly positioned in comparison to Ms Faithful, who had kept an avid interest in the goings on in the kitchen, except for a very brief moment when giving Mrs Carter her mobile phone, mentioned here separately. The other short space in time, when Ms Williamson claimed to have caught a glimpse of the applicant and overheard the threat, when stepping down from the coffee machine to "run some coffees" is unlikely to have coincided with the timing of the alleged threats, so as to coincide with the short time Ms Faithful took her eyes (and her ears for that matter) "off the ball" so to speak. Ms Faithful was still standing closer than anyone, but heard nothing of the kind from Mr Greene. Given other evidence such as to the layout of the door and coffee machine and estimate of distances in other evidence, Ms Williamson was extremely unlikely to have been "two feet away" from anyone as she claimed - although not specifying from whom or from what. 104 She was taken to her evidence of a post termination incident, that when she saw Mr Greene come towards the freezer with a steel sharpening rod in his hand, that she'd felt threatened. Later in her evidence, she claimed to be shaking like a leaf and was uneased by the abuse given to her by the applicant at that point. 105 The next area of her evidence concerned the tension between herself and the applicant arising from her assault upon the applicant's wife on the 10th December, during the week between then and the applicant's dismissal. 106 She gave evidence of approaching the applicant in that period asking him whether she should apologise to his wife and write to her. The applicant suggested that it would be a good idea at the time, and also told her that he did not think the situation would affect his working relationship, because it did not involve him at the time, but his wife. 107 She denied that she'd prepared her statement in retaliation to being charged over her assault upon Mrs Greene, and also denied that she had made up her testimony of observing the applicant with a knife in his hand, threatening the respondent. CONSIDERATION : 108 Given the wide and colourful differences on some essential points between the parties in this case, the credibility of witnesses was unusually crucial to the Commission's findings. 109 To briefly recap - according to the respondent - after an attempt to bring certain failures of cuisine from the day before to Mr Greene's attention, which resulted in the applicant cursing and yelling , the applicant pointed a knife at him and used life-threatening words at relatively short range, causing the respondent to dismiss the applicant and to immediately call the police from the kitchen wall phone - being terrified in the process. In the early stage of that process, the assistant chef Mrs Carter was asked to leave the kitchen, but not dismissed, while Mr Barr attempted unsuccessfully to calm the applicant down. 110 By contrast, the applicant's case, again, briefly stated, was that his dismissal by Mr Barr occurred during an unannounced visit by the respondent, following a contentious week (where he was forced to work at fairly close quarters with Ms Williamson, who had assaulted his wife the previous Friday, the 10th December, 2004). On Saturday, 18th December, he received a flying visit into the kitchen from Mr Barr, who bad temperedly and threateningly began by referring to customer complaints the day before. When the assistant chef, Tracey Carter interrupted to claim responsibility for the mistake in respect of the garlic bread, and going on to blame the layout and capacity of the kitchen, Mr Barr aggressively, and using expletives, dismissed her. In the process he snapped the phone from her when she attempted to ring her husband to come to collect her. Mr Barr then immediately responded to the applicant's attempt to intervene on behalf of Mrs Carter when Mr Greene had said, "don't speak to the lady like that", with the crucial message, "I've got a Christmas present for you, I'm going to dismiss you on Christmas Eve". 111 The applicant claimed that he refused to leave until he had spoken to his union or call the police and unbeknownst to him until later, his employer had ignominiously claimed that he had threatened him with a knife and arranged with an instant call to his garden manager from the wall phone near the doorway for the police to come and remove him claiming that the applicant had threatened him with a knife. Mr Greene's credibility 112 As highlighted in Mr Tunks' cross-examination of the applicant, he gave evidence as to the distance between himself and Mr Barr, which was at variance with the metre distance mentioned in his statement to police. He attempted to deal with that on the basis of the level of anxiety he experienced at being arrested and taken to the police station in front of his wife and children. His young family arrived as he was being led away from the garden centre, and he gave evidence of his own (and their) level of upset at being taken to the police station and that all that was on his mind was that he wanted to go home. Moreover, his demonstration of distance from the witness box at the hearing at least showed a level of incompetence at judging distances in terms of feet or metres, which might account for the variation in his testimony. 113 I have taken into account, at least to some extent, that Mr Greene's evidence was characterised by the need to deal with an unusually robust cross-examination by Mr Tunks, which, whilst not badgering of the witness, was unusually fast flowing with the attendant risk of some confusion. The Commission has noted that the applicant came across as a person, not unintelligent by any means, but who lacked an ability to accurately communicate what he otherwise appeared to want to say in respect of certain matters. 114 After taking those matters into account, I believe any imperfections in his style of testimony can be viewed as minor, especially as his account was otherwise very plausible and unlikely to have been made up by somebody of Mr Greene's disposition as observed by me. Mr Barr's credibility 115 Generally speaking, Mr Barr's credibility suffered somewhat from a tendency to expand his evidence unnecessarily, even taking into account it arose from cross-examination, such as his references to the supposed three occasions of counselling the applicant. It appeared to the Commission that those references were disingenuous and, whilst they may have had some relationship to past rumours or the like, he was unconvincing when he claimed in cross-examination to have counselled the applicant. This was especially apparent in an area not actually relied upon in the respondent's case and where Mr Barr separately contended that the applicant's summary dismissal arose from uncharacteristic conduct where his previous performance was good, except the week before dismissal when his behaviour was "unlike Cieron". But when by Ms Moriarty raised the issue of his good record, he boldly suggested that there were three occasions where he counselled the applicant and having elucidated upon two of these alleged accounts, then claimed that he had given three examples. He was then required to inform the Commission of the third example and came up with another incident, which whilst of an unsavoury nature, if it was the subject of discussion with other employees, was hardly relevant to the applicant's dismissal and appeared calculated to discredit the applicant's image by referring to supposed discussion at work of sexual experiences. The Commission finds the only relevance of the alleged incidents, was in the assessment of Mr Barr's own credit - reflecting from the over-exuberant way in which Mr Barr sought to discredit the applicant in these proceedings over largely irrelevant issues. His evidence as to the alleged errors in presentation and supply of cuisine to patrons throughout the previous week was unconvincing in its initial generality and not been included in his witness statement. When pressed, his broad sweeping claims of an "enormous number" of defective meals served during the preceding week were seen as a recent invention to justify his belligerent entry into the kitchen on 18th December. 116 I am satisfied, on the evidence of Mrs Carter and the applicant and other evidence of the large number of patrons on Friday, the day before that the errors were largely only related to the garlic bread and salad dressing. 117 More fatal to Mr Barr's credit were the contradictions contained in the entirely convincing evidence of Mrs Carter, which I have had to prefer over his, that she was dismissed by Mr Barr, and then turned to dismiss Mr Greene contrary to his repeated assertion that he had not dismissed either of them. This is clarified in the assessment of credibility of Mrs Carter below, which demonstrates that he should not have been in any doubt that he dismissed her and his claim to have otherwise sent her away temporarily was fanciful for the reasons expanded upon later. 118 She also heard Mr Barr dismiss Mr Greene, with words (also denied by him) - "I've got a Christmas present for you, I'm going to dismiss you on Christmas Eve". 119 Also casting serious doubt on Mr Barr's version of events, was the evidence of Ms Candle Faithful, likewise dealt with in detail below, which I have been comfortable in accepting as both cautious and genuine. It shows, amongst other things, that the applicant was highly unlikely to have been able to threaten Mr Barr with a knife in the one brief moment that she took her eyes off the pair to give Mrs Carter her mobile phone. 120 It is incongruous and, beyond belief that Mr Barr, who claimed repeatedly to be so "terrified" and gave other categorical evidence of the danger he felt at being threatened with the knife by the applicant, would still remain in such close quarters, with his back to the applicant to remain on the phone there to call Michael Harloff to call the police. He did so by standing in the kitchen doorway and taking the time to make the call when other phones were said by him to have been available (as he allegedly told Mrs Carter when she tried to use the same phone). His evidence also included that the applicant had pointed the 30cm knife just one metre from his face. For this and the additional reasons affecting Mr Barr's lack of credibility shown throughout, the Commission has decided that it is more likely that he did so as a ruse, perhaps prompted by the applicant's reference to not leaving until he had spoken to his union or the police, when challenging his dismissal. The credibility of Ms Williamson 121 There were several strong indications of the lack of credibility for this key witness for the respondent, who claimed to have seen and heard the applicant threatening Mr Barr. Firstly, she was far from being an independent witness, being the obvious cause of the tension between the applicant and the respondent Mr Barr, arising from her assault upon the applicant's wife at the Christmas Party the week before, for which she was later forced to plead guilty in local court. It was never quite clarified in the evidence as to why Mr Barr and the other manager and respondent representative, Marie, had, as indicated in the evidence before the Commission in this case, seemed to have protected Ms Williamson from any repercussions following her seriously bad behaviour at the 10th December Christmas Party against Mrs Greene. Mr Barr's belated claim (only when pressed in cross-examination) to have reprimanded her straight after the incident - claiming to have told Ms Williamson that her behaviour was "appalling" - appeared to be an afterthought, designed to address an obvious gap identified by Ms Moriarty. She had good reason to invent evidence to assist Mr Barr against the applicant, who Mr Barr had failed during the week between the assault and the applicant's dismissal to convince to have his wife not pursue charges against Ms Williamson for the assault. 122 There were yet more cogent reasons for not accepting Ms Williamson's account, which became obvious throughout her evidence. Her demeanour and style of giving her evidence was another more general consideration making her account less than plausible, and readily identifiable from the précis of her evidence earlier traversed in this decision. 123 Ms Williamson, by her own account (and that of Ms Faithful), was otherwise busy at the coffee machine during the volatile exchange between the applicant and Mr Barr, making coffees for the other waitresses. Again, by her own evidence, she was carrying coffees in the brief moment of her observation and hearing the applicant threaten Mr Barr. The sheer coincidence of her stepping down at a particular time "to run some coffees" to customers (and at what would have to be a magic moment), to make her observation, whilst balancing coffees on the run - to overhear the applicant threatening Mr Barr. She claimed at one point the applicant had the knife "raised in the air" and saying "you're a fucking cunt and you're going to get it". This was a difficult claim to accept. 124 When compared with Ms Faithful evidence which was extremely cautious, particularly in respect of as to whether she overheard matters between Mr Barr and the applicant, Ms Williamsons' evidence, by contrast was that she uniquely managed to hear the crucial conversation where the applicant was allegedly threatening Mr Barr even though she was much busier and more poorly positioned than Ms Faithful. 125 She claimed to have seen into the kitchen in the brief moment when the door was left open after the exit of Mrs Carter, but she testified that it occurred straight after Mr Barr opened the door, when Ms Faithful's evidence was clear that the door remained open after the exit of Ms Carter. This was another minor fault in her evidence - given that I have preferred Ms Faithful's evidence, as dealt with later. 126 Curiously, she seemed to avoid making and further reference to her initial evidence of Mr Greene using the threatening words "you are a fucking cunt and you're going to get it", despite being taken back to the alleged knife episode several times by Ms Moriarty. This gave the distinct impression that she was trying to avoid being tested on that aspect, as she was in respect of the alleged knife. Moreover, her recollection of the words used by the applicant differed from those alleged by Mr Barr, who claimed Mr Greene had said, "You don't know me. I'm going to get you with this". Although this, again, is a relatively minor matter, it is hard to accept that Mr Barr, as I assessed him, would have missed the use of the unsavoury swearword she included in her version and shows an inconsistency in the respondent's case. 127 Ms Williamson's various descriptions of the applicant "waving" a knife, or "pointing" a knife at Mr Barr seemed (like other aspects of her evidence) to change with the retelling in cross-examination and combined with the suspicious disinclination by her to make further mention of the oral threat, gave the distinct impression of someone uncomfortable with her testimony. 128 Perhaps one of the most unbelievable things of Ms Williamson's evidence was her repeated claim that she did not discuss the incident with the other staff after it was over, but carried on. It is also unbelievable that she would not have spoken to Mr Barr or some other supervisor, let alone other employees. This also contradicted Mr Barr's evidence of her coming forward to offer to give evidence of seeing and hearing the threat with the knife - a further contradiction in the respondent's case. However, perhaps prompted by an objection raised at one point by the respondent's solicitor, she did change her mind to suggest that she did indeed speak about the incident, but then reverted to her original stance of not discussing something that most ordinary persons would be anxious to share with others. (Again obvious from the outline of her evidence given earlier) 129 She also switched from being somewhat nonchalant about Mr Greene's alleged use of the knife to being "fearful" and "the whole thing" being "ugly and scary". 130 There were other areas of her evidence where she waxed and waned on a number of issues, and as already mentioned this was evident from the précis of her evidence earlier. 131 In summary, putting it mildly, I found her to be a most unreliable witness and her account to be contrived. The credibility of Mrs Carter 132 Mrs Carter gave her evidence in a straight forward dispassionate way. There was no attempt by her to exaggerate and her evidence which was consistent with that of the applicant. She made no attempt to embellish the evidence when the opportunity to do so offered itself, which might for instance have contradicted Mr Barr's claim of the applicant pointing the knife at him. The most significant part of her evidence was that she corroborated the applicant's evidence that Mr Barr had immediately turned upon the applicant when he had attempted to intercede for Mrs Carter, as described earlier over the manner in which Mr Barr had spoken to her, by dismissing the applicant, saying, "I've got a Christmas present for you, I'm going to sack you on Christmas Eve" - after which she had left the scene. This limit of what she heard and witnessed was readily confirmed by her and she was just as adamant under cross-examination that she had a vivid and accurate recollection of events testified by her. 133 I have also found no difficulty in accepting Mrs Carter's evidence that Mr Barr had dismissed her, with the harsh expletives recalled in her evidence, and of having the phone snatched from her hand when she attempted to ring her husband again with use of the "F" word. Mr Barr's contrasting evidence of a much gentler suggestion, that she use the phone outside, and of merely telling her to leave so that he could "calm things down" was rejected by me as a clumsy and implausible attempt to structure the evidence more favourably towards himself. Quite apart from the silliness of his proposition, that by asking her to leave, even in the manner claimed by him, that this would "calm things down", she flatly contradicted him on this point by emphatically insisting that he had used the belligerent words in her statement and oral evidence outlined elsewhere in this decision, which was a very plausible account of her humiliating dismissal. 134 Any reasonable person in the respondent's situation in litigating this case would have had to concede that there was actually a dismissal of Mrs Carter, especially given that Mr Barr admitted that he had observed her waiting for her husband outside, and had made no attempt to contact her then or at any later stage, if he had intended for her to simply leave the kitchen that particular day only. The fact that he was at that stage without both his cooking staff, as developed by Ms Moriarty in her cross-examination of Mr Barr, would have surely led him to clarify his intentions when the opportunity presented itself soon after the exchange, if he hadn't meant to dismiss her, yet he maintained that he had not dismissed her and merely asked her to leave and that his tone had not altered throughout his visit to the kitchen. Similarly, his claim that it "wasn't his job" to reassure her and that he had "more important things to think about" can hardly be plausible in the circumstances, along with the equally unbelievable assertion that he did not know why she was ringing her husband. 135 Whilst frankly offering that the applicant had also used colourful language she distinguished the level of swearing by Mr Barr as being well beyond that of Mr Greene, but by the same token, frankly offered that the applicant had also used colourful language. 136 I therefore found that he also dismissed her by saying "get off my fucking property" and other demeaning words recalled by her, such as when she finally said to him "you are acting like a two year old and you will be hearing from me" and he responded with - "I'm shaking in my shoes! Get off my fucking property". Likewise, her testimony showed that Mr Barr thence turned to Mr Greene saying "I've got a Christmas present for you, I'm going to dismiss you on Christmas Eve", (also denied by Mr Barr). This being the case, the applicant had already been dismissed with these words and if the applicant did threaten Mr Barr somehow with a knife, it was actually after the event i.e. after the summary dismissal of the applicant, but the following assessment of Ms Faithful's evidence convinced me that Mr Greene was extremely unlikely to have had a knife in hand at any relevant stage. 137 Having found Mrs Carter to be a convincing witness with measured and guileless responses, which led me to prefer her evidence over Mr Barr's account, I have rejected his evidence wherever it conflicted with hers. 138 The evidence of Ms Pomering as to the propensity of Mr Barr to speak badly to staff was rather minor when compared to other evidence forming the basis of the Commission's finding here, but nonetheless, supports other evidence of his tone and behaviour. Similarly, the undisputed evidence, of the waitress Sarah emerging from the kitchen in tears at an early stage, and in other evidence, of being thrown out by Mr Barr, was another indication of the vitriolic approach of Mr Barr on the day. This contradicted his evidence of not having altered his tone, but having to tell the applicant that he would have to send him home if he continued to swear at him. Others gave an even clearer contradiction of that claim by him. The credibility of Ms Faithful 139 Again, the Commission was impressed with the sincerity and restrained nature of the evidence given by this witness, where there was a careful approach, both in-chief and cross-examination when tested by Mr Tunks, not to overstep the mark. Her evidence of the applicant holding a large bowl of sausages throughout the ordeal was both significant and convincing. 140 She impressed me with her caution when pressed by Mr Tunks that there was a brief moment where it was possible for the applicant to have picked up a knife, although not likely . She readily conceded that possibility at that point, demonstrating to me a desire not to falsify or exaggerate. There were no inconsistencies in any of her recollections, which were given in a dispassionate, yet confident manner. 141 Accordingly, whilst her evidence is not one hundred per cent certain that the applicant could not have briefly and swiftly picked up a knife, I am satisfied that the possibility of that happening was miniscule. 142 Accordingly, Ms Faithful's evidence also detracts from the credibility of Mr Barr in fundamental ways. She, like Mrs Carter, also contradicted Mr Barr on the level and ferocity of swearing by him, and like Mrs Carter, did acknowledge that the applicant had also been loud and angry. 143 Ms Faithful verified that Mr Barr stood immediately outside the kitchen door with the telephone line, facing out of the kitchen, with his back to the applicant immediately after the alleged threat to his life, is already commented upon as extremely careless and/or brave of someone so "terrified" by the alleged threat by Mr Greene. CONCLUSIONS: 144 Given the Commission's overall findings as to credit of the particular witnesses in this case, I have disregarded the respondent's evidence wherever it was in conflict with the witnesses for the applicant and the applicant himself. 145 It is understandable that the applicant was immediately apprehensive as to his future with Garden Magic Restaurant given the dramatic events of 10th December, 2004, where his wife suffered a reasonably serious assault at the wrong end of a wineglass wheeled by the head waitress of the restaurant, Ms Williamson. An extraordinary feature of that episode was that the respondent in the person of Marie, (mentioned earlier), far from expressing any concern as to the well-being of Mrs Greene or to even confront Ms Williamson as to her behaviour, turned her aggression towards Mrs Greene, when telling her husband, the applicant - "get that fucking bitch out of here before I smash her". The Commission notes that similar circumstances before this Commission has usually concerned the dismissal of employees like Ms Williamson for such after-hours conduct at Christmas parties, but on this occasion, for reasons not elucidated upon by the respondent, who did not call Marie to give evidence, Marie for some reason, turned her anger towards the apparent victim, Mrs Greene that evening. 146 Another extraordinary feature was that when Mr Greene made an attempt through Mr Barr to distance himself from Ms Williamson, after having had to work with his wife's attacker the very next day, and sought from Mr Barr to either have Ms Williamson or himself rostered off the next day, being Sunday, in order for him "to get his head around" matters, he received the rudest of rejections from Mr Barr. Although denied by Mr Barr, the state of his credibility outlined earlier, led me to prefer Mr Greene's evidence overall and of what occurred during that approach. 147 It shows an unusual level of insensitivity for Mr Barr to first attempt to humiliate Mr Greene by responding to the effect, "what the fuck are you ringing me at home for" and, upon hearing why the applicant had rung, said that, Mr Greene should "grow up and be a big boy" about the incident the previous evening. He then went on to threaten the applicant that if he didn't turn up the next day, Sunday, (because of needing to get over what Ms Williamson had done to his wife), "don't come Monday". It should go without saying that the applicant was entitled to be offended, not only by Ms Williamson's assault, but by her unapologetic presence the next day, with no perceived disciplinary action taken whatever by the employer. Mr Barr's afterthought evidence, when pressed in cross-examination, of having reprimanded Ms Williamson on the evening of the occurrence, has already been disregarded by me as disingenuous. Moreover, had he done so, he did not tell Mr Greene, which might have alleviated his sense of indignation. It is fairly obvious that Ms Williamson's later written apology to Mrs Greene, was given to position herself with any future reporting and/or prosecution of the assault through the police - which finally happened. If such a letter was to be of any genuine utility, it should have been written and delivered at the first opportunity, and may then have done away with the need for Mr Greene to be insulted by Mr Barr during the Saturday night call to his employer's home to seek guidance over having to work with Ms William the next day and some reassurance as to his own future. 148 Whilst Mr Barr certainly made no such admission, I have drawn the reasonable inference from all the evidence that Mr Barr's aggressive entry into the kitchen on the 17th December, 2005, was very likely inspired by the applicant's failure during the week to stop his wife's police complaint of the assault, supported by the fact that Mr Barr and Marie had ignored him the day before. The respondent's aggressive approach in the kitchen conversation was consistent with the believable evidence of Mr Greene and Mrs Carter and Ms Faithful and there was direct evidence from Ms Pomeroy of his past aggression to staff. It had little to do with the alleged shortcomings as to the preparation of meals on either the day or week before, except for the garlic bread and salad dressing referred to by the applicant and Mrs Carter, which was caused by the extraordinary workload of customers the day before on the Friday. 149 The applicant was summarily dismissed in circumstances which have been found to be unusually harsh, unjust and unreasonable - which on the balance of probabilities did not include any threat from Mr Greene to the person of Mr Barr as ignominiously claimed by him 150 That occurred when having rudely dismissed Mrs Carter as per my earlier findings, he turned sharply upon Mr Greene who had attempted to intervene on her behalf and dismissed him summarily for no just reason. He did so with the words "I've got a Christmas present for you - I'm going to dismiss you on Christmas Eve and when the applicant protested with the words to the effect "How can you do that", Mr Barr chimed in with "simple, you're sacked now", telling him to get out and when he refused to leave until he had spoken to his union or the police, Mr Barr after saying, "I don't give a fuck about you, your family or the union" obliged Mr Greene by calling for the police - claiming that his life had been threatened. 151 In cases of summary dismissal for serious misconduct as claimed here, the Commission is very often set the task, inter alia, of assessing whether the employer's investigation involved the required level of proof to properly satisfy the employer that the misconduct occurred as often alleged by others in the organisation. Here a key respondent representative made the alleged observations and heard the alleged threat. 152 A compelling array of authorities on summary dismissal also speak of a shift of onus in the evidentiary sense. An instance is that of Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 where this observation by the Full Bench is an illustration of the approach taken by the Courts and this Commission: "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 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. 153 This case did not fit into the usual category in assessing the evidentiary burden and shift of onus, because the respondent himself claimed to have been the first hand witness to the misconduct, which was not sustained by assessment of the evidence even on the ordinary test. R E M E D Y 154 The applicant, Mr Greene, sought reinstatement notwithstanding the unusually volatile circumstances of the respondent's treatment of him, found in this decision. His reason for doing so may relate to the expectation of me also awarding compensation for the period since his dismissal. However, Mr Greene suggested that he would not continue his career as a chef unless he obtained reinstatement, although not making clear how that might assist his confidence, especially given his evidence of the cruel behaviour of Mr Barr towards him. That included being prepared to misuse the resources of the police on the occasion of the dismissal, but also causing his dismissal from his new position at the hotel in Camden, by pretending that he was being threatened by the applicant. On both occasions the police were called to the trauma and embarrassment of Mr Greene. 155 It is too easy for the respondent to argue impracticality of reinstatement. On the usual arguments of breakdowns of trust and relationships, no employee would ever attract the primary remedy if that was the substance of the objection, without evidence of real difficulty. My inclination in past cases is to require good reasons not to grant reinstatement where it is deserved - relying on such cases, which support that any ordinary difficulties or embarrassment involved is often of the employer's own making. 156 The evidence here led me to the conclusion that the allegation against the applicant on 18th December, 2004 was unsustainable. Given my assessment of Mr Barr's credibility on certain matters, it is unlikely that the applicant likewise threatened him after his dismissal as alleged by the respondent to his new employer at the hotel in Camden where he had obtained work. I do not rely on that last aspect - given that it occurred after dismissal and no independent witnesses could clarify the matter. 157 On this basis, my findings as to what was unlikely to have occurred on 18th December, 2004 I have had some difficulty in refusing the claim for reinstatement, together with the appropriate compensation since that date. However, whilst I may be in error in so refusing reinstatement, it is more that, despite Mr Greene's protestations of being able to cope with the situation, I do not wish to visit the respondent upon the applicant, who on the evidence proved to be quite sinister and manipulative in his dealings with the applicant. 158 Accordingly, compensation to the maximum available under Section 89(5) should be awarded after taking into account subsection (6) as I am required to do. O R D E R S 159 The respondent in matter No. IRC 74 of 2005 Garden Magic Harrington Park Pty Ltd is to pay to Mr Cieron Greene, the subject of the application by The Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, NSW Branch, the amount equivalent of the applicant's earnings in the six months prior his dismissal on 18th December, 2005 within 21 days of this decision on the basis of the $1,300 per week shown in the application. That amount is $33,800 with appropriate taxation to be paid by Mr Greene. J P Murphy 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.