Industrial Relations Commission of New South Wales CITATION : Samaha and the Maronite Sisters of the Holy Family [2000] NSWIRComm 183 APPLICANT PARTIES : New South Wales Nurses' Association, on behalf of Youseff Samaha RESPONDENT The Maronite Sisters of the Holy Family FILE NUMBER: 6598 of 1999 CORAM: Sams DP Termination of employment - serious misconduct - fighting in the workplace - whether dismissal harsh, unreasonable or unjust - principles considered. CATCHWORDS : Held, applicant not provoked - applicant did not act in self defence - applicant's version of events not accepted - applicant initiated altercation - applicant's length of service, record of employment and age taken into account - procedure not unfair - dismissal not unfair in all the circumstances - employer's onus discharged - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Wang v Crestell Industries Pty Ltd, 73 IR 454 Briginshaw v Briginshaw (1938) 60 CLR 336 Department of Corrective Services and Public Service Association Amalgamated Union of New South Wales (re Gilmore) (unreported) Peterson J, Matter IRC 3890 of 1998, 20 October 1998 AWU-FIME Amalgamated Union v Queensland Alumina Limited, 62 IR 385 Yew v ACI, 72 IR 200 Foster v BHP [1997] SAIRC 45 Fearnley v Tenix Defence Systems (unreported) AIRC Print S3557 CASES CITED : CCH Australia Limited v Bowen, 79 IR 206 Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186 Department of Corrective Services v Public Service Association Amalgamated Union of New South Wales (unreported) Peterson J, Matter IRC3890 of 1998, 2 October 1998 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Hill and Department of Juvenile Justice (unreported) Sams DP, Matter IRC6474 of 1999, 27 July 2000 Ueckert and Australian Water Technologies Pty Ltd (unreported) Sams DP, Matter IRC5553 of 1999, 25 July 2000 Health and Research Association (NSW) v Wollongong Hospital, 29 IR 235 HEARING DATES: 05/17/2000; 05/18/2000; 06/06/2000 DATE OF JUDGMENT: 09/08/2000 APPLICANT Ms C Howell of Counsel UNION New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Mr S J Stanton of Counsel with Mr C Frize, Aged Services Association of NSW JUDGMENT: - 29 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 8 September 2000 Matter No IRC99/6598 YOUSEFF SAMAHA AND THE MARONITE SISTERS OF THE HOLY FAMILY Application by New South Wales Nurses' Association, on behalf of Youseff Samaha, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The New South Wales Nurses' Association, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), lodged an application on 1 December 1999, on behalf of Mr Youseff Samaha ("the applicant"), seeking relief in respect to his alleged unfair dismissal by the Maronite Sisters of the Holy Family Village on 15 November 1999. 2 The dismissal of Mr Samaha, after almost five years of employment with the respondent, arose following a physical altercation with another employee on 3 November 1999. The altercation occurred in a treatment room of the nursing home where the applicant was employed as an Assistant in Nursing. 3 The matter was listed for directions and conciliation on 17 December 1999, at which time Mr S Borrow represented the Association and the applicant and Mr C Frize, from the Aged Services Association, represented the respondent. After preliminary submissions, the parties were directed to confer. 4 On 29 February 2000, Mr O'Brien, now appearing for the Association, reported that attempts to settle the matter had been unsuccessful and he requested the matter be set for hearing. Mr Frize agreed to this course. Accordingly, pursuant to s87 of the Act, I set the matter for hearing and issued directions for the filing and service of affidavit material. 5 The matter was re-listed, Ms Howell of Counsel, now appearing for the Association, when the applicant had failed to comply with my directions. Mr Stanton, now appearing for the respondent, also raised a problem with the availability of a relevant witness. He requested the case proceed on the days set for hearing, with the additional witness being held over until a later time. 6 The Commission amended its earlier directions and scheduled a final day for hearing on 6 June 2000. The Evidence 7 Mr Youseff Samaha commenced employment with the Maronite Sisters of the Holy Family Village as a permanent, part time Laundry Foreperson on 14 March 1995. On 23 May 1995 he commenced employment as a part time Assistant in Nursing ("AIN"). On 10 March 1998 he began full time work as an AIN - his usual shifts were 3x 10 hours during the week and 2x 6 hours on weekends. 8 In his affidavit, Ex'1', the applicant described a number of instances in 1999 in which Deputy Director of Nursing, Mr Crawford, made derogatory or critical comments about him, his claim for underpayment and about his wife (who also worked for the respondent). 9 On 18 March 1999, the applicant suffered a workplace injury which, he said, Mr Crawford laughed about. He subsequently had a knee operation and returned to light duties on 7 June. Mr Crawford was his rehabilitation co-ordinator. 10 On 26 October the applicant was asked to sign a list of duties said to be consistent with his rehabilitation program. He refused to do so; believing some of the duties were that of a laundry person, and others were inconsistent with his doctor's advice. The applicant complained to the Director of Nursing, Sister Elham. The applicant attests that Sister Elham had said "Put whatever you like on the paper and sign it". 11 On the night shift, 2-3 November, Mr Crawford arrived at 6.30am and asked him if he had signed the Return to Work Program ("RTWP"). The applicant said an argument then ensued with Mr Crawford using the expression "you are my arsehole in this place". Mr Crawford then said, according to the applicant, that he expected everything to be cleaned, adding "did you hear me my arsehole?" The applicant replied that he was "not going to clean anything". The applicant gave evidence that Mr Crawford went into the Treatment Room and gestured him in. The argument continued with both participants' using the word " arsehole ". 12 The applicant says that he next felt a hard blow to the left side of his head and a hand on the right side of his neck. He says he raised his arms to defend himself and Mr Crawford went backwards resulting in his glasses being dislodged. 13 Describing this as a "scuffle" the applicant says that, upon hearing the commotion, RN de la Cruz came into the treatment room. The applicant said that RN de la Cruz noticed bleeding on his neck. The applicant said he was going to call the police. Another nurse, RN Reforma dissuaded him from doing so. However, he called Sister Elham, the Director of Nursing, who arrived shortly thereafter with Sister Madeleine, the Director General. Mr Crawford had told the applicant to go home - but he refused until he saw Sister Elham. 14 A meeting was held with Sister Elham, Sister Madeleine, RN Reforma and RN de la Cruz. The applicant said that RN Reforma confirmed to Sister Elham that Roger (Mr Crawford) had used the word "arsehole" and that the applicant, as an AIN, was very quiet and had spoken properly to Roger. Sister Madeleine wrote down what RN Reforma said in Arabic and she later signed it. 15 RN de la Cruz said they were both screaming - but she was unable to make out the words being used. She could see blood on the applicant's neck and Mr Crawford's glasses were "down on his face". 16 Sister Elham told the applicant to go home. Before doing so, he went to the Police Station and made a statement (Annexure B). He also went to his doctor who certified his injury as "injury to neck and left eye" (Annexure C). A further medical certificate (Annexure D) was obtained on 5 November describing the applicant as suffering from "anxiety hypertension". 17 The applicant attended a meeting on 15 November with his Union and involving Mr Frize (from the Aged Services Association), Sister Elham and Sister Madeleine. Mr Frize advised him that, following an investigation into the incident on 3 November, he was to be dismissed for serious misconduct. This decision was confirmed by letter dated 16 November (Annexure E). 18 The applicant provided a reply affidavit to the respondent's affidavit evidence. Apart from disputing the version of events as attested to by Mr Crawford, the applicant rejected the other nurses' evidence which described him as talking loudly, and argumentatively, to Mr Crawford. He rejected the evidence that Mr Crawford was speaking in a quiet voice. 19 The applicant provided photographs of his injury to the neck (Ex'4'). The photos clearly show two parallel scratches, one longer than the other, on the right side of his neck. 20 The applicant also provided a diagram of the nurses' station and treatment room (Ex'3') and identified the position of himself, Mr Crawford and the other nurses in the vicinity. 21 The applicant gave evidence that, despite applying for a number of jobs, he has not worked since his dismissal. His wife works two jobs and he has borrowed $10,000 to live on. 22 In cross examination, the applicant agreed that the 3 November incident was very ugly; it involved violence between two grown men, shouting, bad language and loss of temper. It was a fight in an old person's nursing home, run by a religious order. 23 He agreed that he could have walked away from the incident and contacted the senior nun. He agreed that he needn't have gone into the medication room and that Mr Crawford's job involved preparing medications. He agreed it was his choice to go into the room. 24 The applicant gave evidence that he had complained, six or seven times, to Sister Elham about Mr Crawford although she had said two or three. He accepted that there was nothing to stop him complaining again to her (T.p22). 25 After being shown Ex'4' (the photographs) the applicant said he did not know how he sustained the two scratches. He said while the police statement mentioned one scratch, this was what the police officer wrote in the statement. 26 It was put to the applicant that it was bizarre that Mr Crawford, who on the applicant's evidence only had ten to fifteen minutes' contact with him a day, would take such an interest in him and his wife. The applicant said he didn't know why he did. It was suggested by Mr Stanton that the conversations concerning back pay and his wife's redundancy did not occur. The applicant said they did. He denied making up these conversations to claim that Mr Crawford had a vendetta against him. Asked about the derogatory comments made to him, the applicant said Mr Crawford told him he was "hungry for money". 27 As to his rehabilitation program, the applicant said that up to 26 October, he had made no complaint to Sister Elham about Mr Crawford's supervision of it. He formed a belief that the duties required to be performed were inconsistent with what the doctor had put on the doctor's certificate. Sister Elham denied the applicant rang her to complain. He accepted that she had said "Read it carefully and let me know if there is anything in it that you are not happy with". He had said he would sign the RTWP later. He denied this as being inconsistent with what he said Sister Elham had told him. He said he intended to sign it. However, on 3 November, he told Mr Crawford he was not going to sign. He further said that, while Sister Elham said " put whatever you like on the form ", he didn't do so. 28 The applicant denied any inconsistency or omission between his statement to the police on 3 November and what he had put in his affidavit evidence. In any event, he had decided not to take the police complaint any further. 29 As to the fight in the medication room, the applicant said it lasted from five to eight minutes. It was near the end of a long night shift and he did not lose his temper, but remained calm. He said it was Mr Crawford's voice which was loud and despite RN de la Cruz saying that the applicant was waving his arms around, he said she was not telling the truth. He claimed Mr Crawford's glasses were dislodged when he pushed him away. 30 The applicant said Mr Crawford hit him because he refused to sign the RTWP. He had said nothing to him in Arabic or English and did nothing to provoke him. He denied following him into the treatment room and denied hitting him without warning. He denied raising his voice or waving his arms around. He said that, in all the time he had worked at the nursing home, Mr Crawford had never spoken to him like that before. 31 The applicant agreed that the doctor's certificate described "injury to left neck and left eye". However, he said this was wrong as the injury was to his left temple and scratches to his left side neck. 32 The applicant gave evidence as to the disciplinary meetings with the employer. On the day of the incident he had asked Sister Elham to meet him separately from the other staff. He had met with the other nurse witnesses. Mr Crawford did not attend. 33 The applicant was shown advertisements for nursing positions in various newspapers and agreed he had not applied for any of them. 34 The applicant had lodged a workers' compensation claim against the respondent for the injury sustained in March 1999. 35 In re-examination, the applicant said he walked into the medication room, not knowing he was going to be hit for nothing. As to not signing the RTWP, he said he intended to talk to Sister Elham about it. Respondent's Evidence 36 Mr Stanton called the following persons to give evidence: RN Celia Galvez de la Cruz - Registered Nurse Sister Madeleine De La Croix - Chief Executive, Maronite Sisters of the Holy Family Nursing Home Sister Elham Geagea - Director of Nursing Roger Graham Crawford - Former Deputy Director of Nursing RN Myrna De Guzman Reforma - Registered Nurse 37 RN Celia de la Cruz was working at the Nursing Home on 3 November 1999 and heard the argument (although not the actual conversation) between the applicant and Mr Crawford. In her affidavit Ex'B', she said that she knew both men and could recognise their voices. She gave evidence that the applicant was loud and argumentative. He appeared very angry and was waving his hands about. Mr Crawford, she said, was speaking "in a quiet voice". 38 She and another sister, Myrna Reforma, were sitting at the nurses' station. When they heard a loud noise they both went into the treatment room. RN de la Cruz said she saw Mr Crawford leaning back against the wall with his glasses displaced, touching the left side of his neck. She noticed the applicant, with a small bleeding scratch on his neck, standing facing Mr Crawford. Later Mr Crawford showed her his neck. She said it was red and a bit scratched. When shown the photographs (Ex'4') RN de la Cruz said she couldn't say if there was one or two scratches. She "imagined" that is what she saw. 39 In cross examination, RN de la Cruz said she had prepared a handwritten statement immediately after the incident. 40 In commenting on the incident she said when she entered the treatment room, the applicant said "you see what happened". He did not say that Mr Crawford tried to punch him. 41 Contrary to the applicant's evidence, RN de la Cruz said that Mr Crawford was present in the meeting that day with Sister Elham and Sister Madeleine. She recalled RN Reforma telling the meeting that Mr Crawford had used the word "arsehole". She did not remember RN Reforma saying the applicant was very quiet. 42 RN de la Cruz said that she had no difficulties with the applicant, but had witnessed his temper. 43 Sister Madeleine De La Croix gave oral and affidavit evidence. As the CEO of the nursing home, she was involved in the investigation of the incident. At the end of the investigation, the applicant was dismissed for serious and wilful misconduct as his conduct was said to be in breach of the staff handbook. Sister Madeleine claimed the dismissal was not unfair. 44 Sister Madeleine said she had no recollection of RN Reforma telling her that Mr Crawford had used the word "arsehole", or that it wasn't fair to the applicant, as he was quiet and spoke properly to Mr Crawford. Such matters were contrary to the statement she took from RN Reforma. 45 In oral evidence, Sister Madeleine took notes of what RN Reforma said in Arabic and had them translated to English (MFI 2). She said that RN Reforma did tell her that Mr Crawford said the word 'arsehole' - but only once. 46 Sister De La Croix said that the only time she had spoken to the applicant was on 3 November and she and Sister Elham had made the decision to dismiss both employees. The decision was made, she said, prior to 9 November. It could not be clearly established who was telling the truth, so both were dismissed for fighting. In questioning from Ms Howell, Sister De La Croix acknowledged that it didn't matter who was telling the truth, because both were fighting, and it couldn't be established who started it. 47 Sister De La Croix was shown Ex'4' and agreed the photos were consistent with what she saw of the applicant's injuries on 3 November. 48 In re-examination, the Sister explained what she meant by waiting to dismiss the applicant. She said she had to investigate, take statements and involve the Aged Services Association of New South Wales. 49 Sister Elham Gaegea is the Director of Nursing at the Nursing Home. In her affidavit evidence (Ex'E') she said that the underpayment issue had been handled by herself and, not as the applicant alleges, referred to Mr Crawford. She said that the applicant had complained about Mr Crawford on two or three occasions - not six or seven. 50 She said Mr Crawford did not leave the RTWP documents at the nurses station; she had. In addition, she had given the applicant the RTWP on 26 October. The applicant did not sign it, and it remained unsigned at 3 November. The RTWP had been based on various rehabilitation reports and medical certificates (attached to her affidavit) and was consistent with advice from the Commonweath Rehabilitation Service (CRS). 51 Sister Elham denied the applicant's version of the conversation on 26 October. She had called him and told him to read the RTWP carefully and let her know if there was anything in it he was not happy with. He had replied "don't worry, I will sign it". 52 Sister Elham corroborated Sister Madeleine's evidence that RN Reforma did not say the words the applicant claims she said. 53 Sister Elham said the conduct of the investigation was fair and in accordance with the Staff Handbook. It would not be practical for the applicant to be reinstated. 54 In oral evidence, Sister Elham said the elderly patients had been frightened by the incident, as such a thing had not happened before. In cross examination, she said only one patient had complained, and none of the employees had expressed concern with working with the applicant in the future. 55 As to the complaints made by the applicant about Mr Crawford, Sister Elham did not write them down. However, they concerned the applicant not liking the way Mr Crawford spoke to him. 56 Sister Elham said she spoke to the applicant on 1 November and he said he was unhappy with the duties on the RTWP as he was "not a cleaner". She was asked why a memo had been sent on 17 December 1999 directing that washing and laundry was not to be done after hours. However, the applicant had been asked to do laundry on night shift. She said that this was what work was available on night shift. The memo was subsequently withdrawn. 57 Sister Elham was asked about the decision to dismiss the applicant. She said that there was an investigation, statements were taken, the Aged Services Association and the Nurses' Association were both involved. She said it was not possible to establish who hit who first, but it was clear both were injured. Both employees lodged a complaint with the police. 58 Sister Elham gave evidence that one of the reasons for dismissal was his refusal to sign the RTWP. However, this was not put to him during the investigation and was not referred to in the termination of employment letter. 59 Sister Elham was asked about the statement of RN Reforma in which she said Mr Crawford had called the applicant "my arsehole". She said that she had heard that the applicant's wife had asked RN Reforma to write a statement favourable to her husband and to say Mr Crawford hit him. She didn't know if RN Reforma was being untruthful. RN Reforma had told her that the applicant had visited her at home. Sister Elham agreed that she didn't question RN Reforma's honesty. 60 Sister Elham acknowledged that the applicant had not been counselled, or warned, in his four years of employment. 61 Mr Roger Crawford was the Deputy Director of Nursing from October 1998 to 9 November 1999. In his affidavit, Ex'F', Mr Crawford said he did not verbally or physically assault Mr Samaha on 3 November. 62 He described the circumstances of the incident on this day. When Mr Crawford asked the applicant if he had signed the RTWP, he replied that he would not sign it, and he would not do any cleaning duties. Mr Crawford said the applicant became agitated, was loud and aggressive and was waving his arms around. 63 He said the applicant called him an arsehole and said that he would "fix him". Mr Crawford regarded such conduct as unacceptable and told him so. Mr Crawford said he walked away to dispense medication and the applicant followed him into the treatment room speaking in Arabic. Shortly thereafter, Mr Crawford said that without warning, the applicant struck him in the face, dislodging his glasses. He was shocked and felt pain. At this point RN Reforma and RN de la Cruz came into the treatment room and he asked RN de la Cruz if she saw the applicant strike him. She replied that she saw redness on his neck. The applicant left the room. Mr Crawford followed him and told him to go home. The applicant remained and called the sisters at the convent. 64 Prior to the arrival of Sister Elham and Sister Madeleine, Mr Crawford walked past the nurses' station and the applicant said something to him in Arabic. When he questioned him, the applicant replied, "you are a beautiful man". Mr Crawford did not respond. 65 Mr Crawford was interviewed by the sisters, wrote and signed a statement to the police. 66 Mr Crawford denied ever having conversations about back pay, the applicant's wife, his injury or describing him as "money hungry". He denied making critical or derogatory comments on six or seven occasions. Sister Elham never raised such matters with him. 67 Mr Crawford denied gesturing the applicant into the treatment room and denied the applicant's version of events. 68 In oral evidence, Mr Crawford disputed where he and the applicant were standing in the treatment room. 69 Mr Crawford was shown Ex'6' and agreed it was a letter confirming his dismissal on 9 November 1999 for his participation in the fight. Mr Crawford said his own dismissal letter "did not stand" and he had resigned. 70 Mr Crawford gave evidence that the applicant's injury may not have been work related, but degenerative from an earlier injury. In re-examination, Mr Crawford said that his view of a degenerative injury came from Dr Bruce's report. He had however, made no attempt to stop or impede the applicant's workers' compensation claim. 71 As to the incident Mr Crawford denied calling the applicant "my arsehole". He denied he was angry and denied gesturing the applicant into the treatment room. He said he did not lose his temper and did not strike the applicant. He said he was struck by the applicant. Mr Crawford could give no explanation as to how the applicant came to be injured. 72 RN Myrna De Guzman Reforma is a registered nurse employed at the nursing home. Attached to her undated affidavit (Ex'G'), were three statements made by her concerning the 3 November incident. 73 The issue of some debate in the proceedings concerned RN Reforma stating that Mr Crawford had said "you are my arsehole in this place". 74 RN Reforma also gave evidence that the applicant visited her home that night. She was not home. The applicant's wife had also made two approaches to her, by phone and personally at work, in which she had asked her to make a "favourable statement on behalf of Joseph". She refused, as she had already made a statement. 75 In oral evidence, RN Reforma said she had written her statement on the same day of the incident and someone else typed it up. 76 Prior to the incident, she had heard a conversation in which the applicant said he would not sign a return to work form or something about his duties. 77 RN Reforma confirmed that Mr Crawford had said "you are my arsehole in this place" (T.p126). He had said it once, while still at the nurses station. She was a metre away. She said she also heard the applicant say "If you have a grudge against me, you tell me and we can sort it out" . 78 RN Reforma said, as far as she saw, that the applicant was good with the patients. She would not answer as to what else she had heard about him. SUBMISSIONS 79 Ms Howell, for the applicant, submitted as follows: 1) There is evidence that the applicant complained to Sister Elham about Mr Crawford's attitude. 2) The applicant and Mr Crawford dispute who initiated the 3 November incident. 3) Mr Crawford said he never used the word " arsehole " but RN Reforma said she heard him say " you are my arsehole in this place ". Mr Crawford's evidence should not be believed. 4) There is a high standard of proof that must be established for the Commission to be satisfied that the applicant was guilty of misconduct, see Wang v Crestell Industries Pty Ltd 73 IR 454, Briginshaw v Briginshaw (1938) 60 CLR 336 and Gilmore's case (unreported) Peterson J, Matter IRC3890 of 1998, 2 October 1998. 5) Relevant factors to be taken into account include: i) the circumstances in which the fight occurred; ii) whether the employee was provoked; iii) whether the employee was acting in self defence; iv) the employee's position, record of employment and length of service; see AWU-FIME Amalgamated Union v Queensland Alumina Limited 62 IR 385, Yew v ACI 72 IR 200, Foster v BHP [1997] SAIRC 45 and Fearnley v Tenix Defence Systems (unreported) AIRC Print S3557; v) participation in a fight is insufficient to justify dismissal, particularly as the employer could not establish who was at fault; vi) the evidence suggests Mr Crawford struck the first blow and the applicant pushed him away in self defence; 6) RN Reforma's evidence as to what Mr Crawford said (" you are my arsehole ") is consistent with what Mr Samaha told the police. It is an unusual phrase that two people couldn't be wrong about. It is consistent with Mr Crawford being rude, aggressive and derogatory of the applicant; 7) The applicant's injuries were consistent with significant force being used against him. 8) Mr Crawford was evasive and his evidence self serving. He should not be believed. 9) The approach by the applicant and his wife to RN Reforma was irrelevant, as she had already made her statement. 10) The respondent failed to take into account the applicant's: i) length of service; ii) unblemished employment record; iii) family responsibilities; iv) work related injury. 11) The respondent had relied on the applicant's refusal to sign the RTWP as a basis for dismissal. This was never put to the applicant as a reason and is transparently irrelevant. 12) The dismissal was procedurally unfair, as the actual allegations were not put to the applicant. 13) The applicant should be reinstated. There is no evidence that such reinstatement would be impractical. See CCH Australia Limited v Bowen, 79 IR 206 and Perkins v Grace Worldwide (Aust) Pty Ltd 72 IR 186. Orders should be made for lost wages and continuity of service. 80 Mr Stanton, for the respondent, submitted: 1) There was a thorough and rigorous investigation of the incident involving the relevant industrial organisations. 2) The staff handbook, at p20, makes it clear that fighting at work constitutes a fundamental breach of the employment contract. Both men knew of such a policy. 3) RN Reforma said she only heard the word " arsehole " once - not many times - as contended by the applicant. 4) There is no evidence of Mr Crawford gesturing the applicant into the treatment room. There is no evidence as to how the applicant sustained his injuries. He didn't know himself. Such facts do not lend easily to the theories advanced by Ms Howell . 5) The applicant does not put in his affidavit that he was scratched. One may wonder, if it was so important, why he didn't? 6) The evidence of RN Reforma was that Mr Crawford's glasses were dislodged and he had redness to the side of his face. 7) RN de la Cruz said the applicant was shouting and arguing and Mr Crawford was speaking quietly. RN Reforma described Mr Crawford as speaking " authoritatively ". 8) The applicant had just finished a long shift. He didn't want to sign the RTWP. He didn't have to go into the treatment room. He had reported Mr Crawford to Sister Elham previously. The logical answer is that he went in to confront Mr Crawford. 9) Even if Mr Crawford had used the word " arsehole ", there was no reason why the applicant should go on with it. 10) The applicant was an unsatisfactory witness. He had no answer for why he went into the treatment room and why he could not find another job. Mr Crawford was very nervous but that doesn't make him a liar. 11) The application should be dismissed. However, if the Commission finds that there was unfairness, a small compensatory order should be made. Reinstatement was impractical. The applicant has made no effort to mitigate his loss. 81 Ms Howell, in reply, put that: 1) Reliance on the staff policy was irrelevant if the applicant was acting in self defence. 2) By entering the treatment room, the applicant was doing no more than obeying his supervisor's instruction, not expecting a confrontation. 3) It is not surprising that RN Reforma only heard the word " arsehole " once. She could not have heard the entirety of the conversation. 4) Mr Crawford's glasses being dislodged is perfectly consistent with the applicant's version of what happened. 5) Irrespective of the volume of the conversation, Mr Crawford was the verbal aggressor. 6) The applicant was not an evasive witness. He simply had trouble understanding English. 7) The employer had not discharged the onus of proving the applicant guilty of assaulting Mr Crawford. On the contrary, all the evidence points to the opposite conclusion. 8) The inability of the applicant to secure similar work is because of his work related injury. It is a desperate submission to suggest that this impugns his credit. CONSIDERATION 82 In Department of Corrective Services v Public Service Association Amalgamated Union of New South Wales (unreported) Matter IRC3890 of 1998, 2 October 1998, Peterson J discussed the standard of proof and onus on the employer when considering whether a physical altercation between a prison officer and a prisoner warranted dismissal of the officer. His Honour referred to authorities of the High Court and a Full Bench of this Commission: .... the standard of proof relevant in that respect is of course on the civil standard. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 Dixon J said: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references. In Rejfek v McElroy (1965) 112 CLR 517 the High Court in a unanimous judgment said at 521: But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon criminal charge: see Helton v Allen (1940) 63 CLR 691. While I am inclined to think that, on balance, it is probable that Officer Gilmore did slap prisoner O's face, I do not consider that the Department has made out its charge to the requisite standard. Where an employee is dismissed for misconduct, the employer's burden is well-established. In Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463, the Full Bench of the Commission held: 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. See also Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3 , 35 IR 70 and my recent discussion in Hill and Department of Juvenile Justice , Matter IRC6474 of 1999, 27 July 2000 and Ueckert and Australian Water Technologies Pty Ltd , Matter IRC 5553 of 1999, 25 July 2000. 83 While his Honour held that the employer had not made out its charge to the requisite standard, I am satisfied, in applying the tests referred to, that the employer, in the instant matter before me, has done so. I shall shortly refer to the particular facts and circumstances which lead me to this conclusion. Fighting in the workplace 84 The Commission was referred to a number of authorities which have considered the issues to be considered where an employee's dismissal has arisen from a fight or physical altercation in the workplace. The following authorities are pertinent: In AWU-FIME Amalgamated Union v Queensland Alumina Limited , Moore J said: What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence. 85 A recent appeal decision in the Australian Industrial Relations Commission, in Tenix Defence Systems v Fearnley referred to a number of authorities (including AWU-FIME v Queensland Alumina) and made these general observations: We think these authorities support the view that in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to: - whether the terminated employee was provoked and whether he or she was acting in self defence; - the employer's need to establish and retain discipline amongst its employees; and - the service and work record of the employee concerned. 86 It is necessary to comment on an inference that can be drawn from the evidence of Sister Elham and Sister Madeleine, that, regardless of whether the applicant initiated the fight, or was acting in self defence, he was dismissed for participating in a fight. 87 Such a view is seemingly grounded in the Staff Handbook; in particular cl 1.13, which is in these terms: Dismissal All employees are required to adhere to the policies and procedures of the Maronite Sisters, your conditions of employment, job descriptions and industrial award. Non compliance will result in disciplinary action. Instant dismissal will be forthcoming in cases of misconduct or gross neglect of duty and will forfeit the standard notice required for dismissal. Swearing/foul language will not be tolerated. Other grounds for dismissal will include poor performance and tardiness. In these cases the employee will be counseled(sic) and given every opportunity to improve and meet the nursing home requirements. In addition all employees are to acknowledge that procedural termination consisting of up to (3) formal warnings may be the consequence of, but not limited to, the following activities: Misconduct Performance deficiencies Unprofessional behaviour Insubordination Breaches of policies Giving the wrong medication Absenteeism Reported events of intimidation and Unauthorised taking of leave. Employees shall also be advised that the following activities, but not limited to, will warrant summary dismissal; Immoral behaviour Physical abuse of any type (staff or resident) Verbal abuse of any type (staff or resident) Intoxicartion(sic) or substance abuse Severe neglect of duty of care Theft 88 While this policy might be said to give warrant to a dismissal of an employee for merely participating in a fight, it is, in my opinion, inconsistent with the decided cases on the subject. 89 The authorities make it plain that merely participating in a fight is likely to be insufficient to justify a dismissal. In Yew v ACI Glass Packaging, Wilcox J discussed this approach: These considerations justify an employer taking a serious view about fighting in the workplace. Especially where the fight takes place in the vicinity of heavy equipment or industrial products, as in this case, there is a serious risk of injury to one or both combatants. But, as Moore J recognised, it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a "no fighting" policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence. 90 Redman, C in Health and Research Association (NSW) v Wollongong Hospital, 29 IR 235, considered a not dissimilar set of circumstances to that which confront me and is verae causae. Two employees, with a well known dislike of each other, had engaged in a physical altercation in a hospital. The employer's investigation could not determine individual culpability and both were dismissed. The Commissioner, in reinstating one of the participants, said at p242: Prima facie the hospital dismissed Mr Ready and Mr Hope because it was unable to determine the identity of the aggressor. In reality the dismissals of Mr Ready and Mr Hope conveniently resolved the hospital's dilemma regarding what it should and could do to neutralise the well-known feud between the two men. Any person is entitled to defend him or herself against violent attack and the evidence brought forward indicates that this is what Mr Ready did. It is untenable to suggest that Orana House is by virtue of its function such a unique place as to justify the dismissal of an employee who acts reasonably in his or her own self-defence against violent attack and I reject such a proposition. I do not suggest in any way that the doctrine of quod dubitas, ne feceris should apply. However, the authorities make it plain that the respondent's policy is a far too simplistic approach in the other direction. 91 To the extent it might be said that a nursing home, like a hospital, might be described as a "unique place" where mere participation in a fight warranted dismissal, I would not agree. A nursing home for elderly people is hardly an appropriate venue for a fight of any description. However, a staff policy which punishes an innocent person, or one acting purely in self defence is flawed and unreasonable. 92 Had the Commission found that the applicant had been unprovoked and was acting in self defence, I have little doubt his dismissal would have been held to be unfair. In the context of this case, it is unnecessary for me to take this matter any further. This is so, because it is not the conclusion I would draw from the evidence. The Evidence 93 Considerable reliance was placed by Ms Howell on the conflict of evidence between Mr Crawford who denied ever using the word "arsehole" and RN Reforma who said she heard him say once "you are my arsehole in this place". The applicant said Mr Crawford used the word repeatedly. A number of observations need to be made about this evidence. Firstly, to my mind, RN Reforma gave open and honest evidence. She gave her first witness statement shortly after the incident, untainted by the passing of time or outside interference. There was no reason for her to make up, or lie, about what she heard. Secondly, the expression used is very strange indeed. It would, if Ms Howell is correct, be most unlikely that two persons, namely the applicant and RN Reforma, have the same recollection of this unique and strange way of insulting someone. Thirdly, however, I am troubled by the applicant's evidence that Mr Crawford used the word repeatedly in a loud and aggressive tone. This was not the evidence of RN Reforma. It is also at odds with RN de la Cruz's evidence that it was the applicant who was loud and aggressive, while Mr Crawford was speaking quietly. On the other hand, Mr Crawford was a less than impressive witness. He was evasive and appeared positively uncomfortable in the witness box. He would not directly answer the question as to whether he was dismissed. A simple explanation would have sufficed, particularly as there was nothing to hide. 94 On balance, it seems probable that Mr Crawford did use the word "arsehole" once, but maybe not in the strange context RN Reforma remembered it. RN Reforma's first language is Arabic and she may have put the word in a quaint, but unusual English context. This would explain how strange the expression was, and why the applicant dutifully remembered it as RN Reforma had first recounted it. 95 Having successfully impugned Mr Crawford's evidence, non sequitor that the applicant's evidence is any more believable. To illustrate the point, the applicant's evidence conflicts sharply with that of the two nurses. I take the view that the applicant embellished much of his evidence and was less than truthful on other occasions. It was designed to give an impression that Mr Crawford had in some way provoked him, or had a vendetta against him. 96 Such evidence included: 1) Saying he complained to Sister Elham six or seven times about Mr Crawford. The complaints went to back pay, his wife, his injury and being "money hungry". Sister Elham said it was only two or three times and he only complained about the way Mr Crawford spoke to him. I agree with Mr Stanton 's assessment that it seems bizarre that the Deputy Director of Nursing would take such a vicarious interest in the applicant and his wife. 2) RN de la Cruz said that after the incident the applicant said to her " You see what happened ". The applicant said he used words " You are my witness, he tried to punch me " (T.p59). I prefer RN de la Cruz's version. 3) In respect to the RTWP form, Sister Elham said she had said " read it carefully and let me know if there is anything you are not happy with ". The applicant said she told him to put whatever he liked on the form and sign it. If she, as Director of Nursing, had said " put whatever you like on the form ", why didn't he? There was no higher authority. I am satisfied Sister Elham said no such thing. In any event, why would a Director of Nursing say to an employee to put whatever they wanted on the form. Such evidence is not plausible. 4) There was no corroborating evidence of Mr Crawford using derogatory language, or making disparaging remarks, to the applicant. I am satisfied that while Mr Crawford may have been terse and straight forward - even, unfriendly - I do not believe he used the language contended by the applicant. 5) The applicant denied using the word " arsehole " but then said he did - not once, but four times. 97 I find other aspects of the applicant's testimony to be less than satisfactory and they give me little confidence that the applicant's version of events is to be believed: 1) RN Reforma's uncontested evidence was that the applicant visited her home on the night of the incident and his wife tried, on two occasions, to have her make a statement favourable to her husband. One might properly draw unfavourable inferences from these three approaches. 2) The applicant had not been shy in reporting Mr Crawford to his superiors on earlier occasions. On his own evidence, he had done so six or seven times. Why would he not do so on this occasion, even if Mr Crawford had provoked him? The applicant was in no doubt he was correct in refusing to do cleaning duties. He had no reason to prolong an argument about it with Mr Crawford. 3) I do not believe that Mr Crawford gestured him into the treatment room. Even if he did, why would he go in the context of the exchange which had just occurred? I am satisfied the applicant followed Mr Crawford into the treatment room with the intent of carrying on with the argument. 4) The RTWP invited discussion and consultation by the applicant. He made no attempt to do so. His response that " it is not fair " is consistent with his view that the duties were below his status. This was the source of his anger. In my opinion, it was for this reason he would not sign it. The employer's investigation 98 It is obvious that the Maronite Sisters of the Holy Family are not sophisticated employers. As an order of nuns, operating a nursing home, their concerns are primarily pastoral and medical. This is not to say that the Sisters are anything other than responsible employers. It is evident that the Sisters acted cautiously and conscientiously in investigating the incident and followed it up with sound practical advice from their industrial organisation, through Mr Frize. 99 I am satisfied that, where there may have been a few minor discrepancies in the respondent's evidence, they went nowhere near being fatal to its case. Rather, I am inclined to believe that discrepancies in written and verbal evidence, or imprecise recollection are readily explained by the witnesses' difficulties understanding English, translating conversations into Arabic and then writing it in English. 100 In my view, the overall thrust of the respondent's case was sound and truthfully presented. It ought not be impeached for inconsistencies of little moment. CONCLUSION 101 I am satisfied, on the balance of probabilities, that the most likely sequence of events on 3 November unfolded this way: 102 Mr Samaha was tired and annoyed after working a ten hour night shift. He was angry because he believed Mr Crawford wanted him to sign an RTWP which he believed included duties below his status. There ensued a heated exchange in which Mr Samaha was heard to shout loudly, and aggressively, and be seen gesturing with his hands and arms. Mr Crawford may have called him an arsehole. 103 Mr Crawford went to carry on his duties in the treatment room. Mr Samaha followed him in, intent on continuing the argument or bringing it to a head. 104 After further angry conversation, in which both may have used foul language, Mr Samaha struck Mr Crawford the first blow with such force as to dislodge his glasses. A scuffle ensued with both receiving minor injuries. 105 In the context of these findings, I have not been convinced that the applicant was acting in self defence, or was intolerably provoked. 106 In deciding this matter I have also had regard for the following: 1) The applicant was an AIN. He confronted a senior supervisor, the Deputy Director of Nursing, verbally at first, then violently. 2) The applicant had significant service - but not long service. I note his full time employment with the respondent, as an AIN, had only been for twenty months. I am mindful of the applicant's age and his otherwise good record of employment. 3) The applicant's dismissal was not disproportionate to the penalty imposed on Mr Crawford. The Commission, of course, is well familiar with the basis upon which Mr Crawford's original dismissal became a resignation. The reality was, nevertheless, that both lost their jobs arising directly from the incident. However, Mr Samaha's culpability was far greater than Mr Crawford's. 4) There is little evidence of the applicant seeking to secure alternative employment, be it commensurate with his expectations, skills and experience, or otherwise. 107 I am satisfied that the respondent has discharged its onus of proving the applicant was guilty of the misconduct it alleged. 108 Accordingly, for the aforementioned reasons, the Commission declines to interfere in the respondent's decision to dismiss the applicant. 109 The application is dismissed. Peter Sams Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.