Industrial Relations Commission of New South Wales CITATION: Byrne and Trident Shipping Services Pty Ltd [2005] NSWIRComm 1197 APPLICANT Christopher Byrne PARTIES: RESPONDENT Trident Shipping Services Pty Ltd. FILE NUMBER(S): 946 of 2005 CORAM: Murphy C Applicant claimed dismissal arose from complaint to WorkCover and not for alleged threat to respondent. Respondent's claim not sustained and despite obscuring of real reason for dismissal, applicant most likely dismissed for activating WorkCover investigation, although victimisation application not formally lodged in respect to S210(j) Applicant's dismissal found to be harsh, unjust and unreasonable. CATCHWORDS: Costs awarded against respondent. LEGISLATION CITED: Industrial Relations Act 1996 Bankstown City Council Vs Paris (1999) 93 IR 209 IGA Distribution Pty Limited Vs Mosses (No.3) [2001] NSW IR Com 1053 Four Sons Pty Limited Vs Sakchai Limsiripothong (No.2) 2000 100 IR 400 CASES CITED: Gartrell White Vs Pastrycooks Union (1990) 35 IR 70 Bigg Vs NSW Police Service (1998) 80 IR 434 Wang Vs Crestell Industries Pty Ltd (1997) 73 IR 454 HEARING DATES: 11/07/2005; 05/21/0112 EXTEMPORE JUDGMENT DATE : 12/07/2005 APPLICANT Mr D Kennedy, Solicitor. LEGAL REPRESENTATIVES: RESPONDENT Mr D Davies, agent from McCarthy Ausgroup DECISION: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 7 December, 2005. Matter No IRC 946 of 2005 CHRISTOPHER BYRNE AND TRIDENT SHIPPING Application by Christopher Byrne re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION EX-TEMPORE [2005] NSWIRComm 1197 1 The history of this matter shows that it was the subject of unsuccessful conciliation before Commissioner O'Neill, on 17th March. The Commissioner listed the matter for 20 July and due to a misunderstanding the parties turned up only to find out that another half dozen matters had been listed that day. 2 The matter was re-listed for 7 November when the matter was taken over by me for hearing. It did not finish on 7 November and the matter was adjourned until 21 November, and at the end of which I made the following ex-tempore decision, which now includes appropriate minor changes and a postscript containing assessment as to remedy with consequential orders. 3 Appearing for the applicant throughout these proceedings was Mr D Kennedy, solicitor, and for the respondent, Mr D Davies as agent from McCarthy Ausgroup. 4 The applicant was employed by the respondent from December 2002 until February 2005 as a deckhand on the fuel barge, Amorina, a vessel based at the Gore Bay Shipping Terminal in Sydney. 5 The barge operates on loading marine fuel from the terminal and motors to Shell oil tankers to transfer the fuel to other ships by pump; a process known as bunkering. 6 The applicant was dismissed on 4 February by Mr Joe Gaioli, Trident's shipping manager, following an exchange of words between the applicant and himself. The precise location of the dismissal and words that were used by both parties were important and very much in contention before the Commission. The applicant maintained that his dismissal was immediate when he was on the wharf tying up the vessel upon the arrival of Mr Gaioli, whilst the respondent insisted he had asked the applicant to come up to the bridge of the vessel and there in front of the captain, the applicant had physically threatened him, which led to his dismissal for misconduct. 7 Crucial to the applicant's case in this matter was that an occupational health and safety issue had been raised by him in the weeks prior to his dismissal, which concerned the building up and release of fumes whilst the tanker was being fuelled. 8 Each fuel tank outlet on the deck has a mushroom cap known as a pressure valve, the purpose of which is to allow the fumes in the end to escape from the fuel tanks when the fuel is pumped in at 600 tonnes per hour. 9 The applicant claimed that the air displaced gushes out at high pressure and the mushroom shaped caps are designed to force the fumes back down to ankle level rather than ejecting directly into the air where deckhands work. 10 Also relevant to the consideration of the occupational health and safety issue in the applicant's case was his evidence that each of the tanks also had a dip hole, from which the dipsticks could be dropped to measure the level of the fuels in the tanks. Each dip hole has a cap which is locked down with two cam levers. 11 The applicant claimed to have become concerned about the fumes breathed in by crew during the fuel loading, and noticed that the practice of the ship's officers, including Captain Collins, was to leave the dip hole valves open during loading. He also claimed the smell emitted was similar to the laying of bitumen. The applicant approached the captain about this at some stage along with the older deckhands, who said words to the effect to him at time, "Don't worry, it won't hurt you". 12 The situation was reached on Friday 12 January where the applicant telephoned WorkCover and lodged a complaint in relation to the oil loading practices of his employer. The complaint was given WorkCover complaint number WS1-82718 and the officer to whom he lodged the complaint was Mr Mark Morgenthal, a witness in these proceedings under summons. He was assured anonymity by Mr Morgenthal in respect of his complaint. 13 On 18 January 2005 WorkCover paid a preliminary visit and inquired when it could inspect the Amorina for the purpose of judging the emitting of fumes during loading. 14 Significantly, the applicant testified that on Thursday 20 January, two days later when he reported for work, the ship's captain Kevin Collins made an announcement to the crew in the following terms, "WorkCover is coming on Friday to inspect the fumes during our loading procedure", the captain then pointed to the applicant and said, "So you finally gave us up did you?" Fearful of his job security the applicant replied, "I don't know what you're talking about". 15 On the following day, 21st of January, Mr Morgenthal from WorkCover observed the loading procedure on board the Amorina. For the first time, in hundreds of shifts, according to the applicant, over the previous two years, the marine fuel was loaded on the barge with the dip hole securely closed. Just as significantly, the following day on 22 January, the bunker master, Oscar Anderson, said to the youngest member of the crew Mr Retio, "Take the caps off the dip holes while we load the fuel", which drew the following response from the applicant, "No, you can't do that, why are they on when WorkCover is down here and then off when WorkCover is away, what is the big difference now"? The applicant at that point walked around and replaced all caps on the dip holes which drew the response from Mr Anderson, "Don't do that". Mr Anderson gave contrary evidence that he waived the applicant on to do what he thought he wanted to do. The reply from the applicant to that challenge from Mr Anderson was to say, "Well, we can discuss it with Greg Stocks", the general manger of the Gore Bay terminal, "and get it resolved that way if you like". 16 The next significant matter that occurred was on Thursday 3 February when contractors had approached the crew and informed them that they were instructed by Shell to arrange the monitoring of fumes from the boat for the purpose of risk assessment and report, which led to all the crew being fitted with monitors. 17 At the applicant's instigation the caps on the dip holes on that occasion remained off during the day. 18 Of some significance on a separate issue was the applicant's evidence that during the evening of the 3rd February his wife became unwell, and he was unable to attend to work to enable her to go to the doctor the next day, to look after their six month old baby. 19 The applicant gave evidence that he did not ring Captain Collins even though he had his telephone number, as he was aware from previous experience that Captain Collins did not appreciate being contacted that late at night and instead contacted, what he termed the first call casual, Mr Mike Hirsch, to arrange for him to attend the first few hours of his shift the following morning. 20 When the applicant arrived at work at 12.30 the next day to take over from Mr Hirsch, the captain asked him up to the bridge of the vessel and asked him why he did not call him in respect of taking the morning off, and after explaining the circumstances to Captain Collins received the response, "You can't do it without contacting me". The applicant replied that it was because of the late hour when he became aware of his inability to attend due to his wife's illness, and to look after their six month old son while his wife attended the doctor. He also responded to the captain that he could give him a warning if he wished, but he received no reply at that stage from Captain Collins and proceeded back to work. He received no written warning over the issue during that day or the next when he was terminated. 21 The applicant claims it was a common practice amongst the crew to contact the first call casual in the evening in event of illness or emergency and, whilst it was also common practice to contact Captain Collins about such arrangements, the lateness of the hour on that Thursday evening when he became aware of his situation, meant that he was also conscious that Captain Collins would not appreciate being contacted so late. 22 At the conclusion of his shift that day - and when the vessel returned to dock at 6.30pm - according to the applicant, although there was a slight dispute as to the time of that arrival, he found Trident's shipping manager Mr Joe Gaioli waiting for him on the wharf, and once he secured the gangway, Mr Gaioli and himself had the following exchange: Mr Gaioli, "I want you upstairs". The applicant, "Joe, anything you have to say to me you can say in front of the whole crew". Mr Gaioli, "I'll make it simple for you, you are sacked". 23 The applicant gave evidence to the rest of the conversation reported in his statement that follows occurs after he followed Mr Gaioli up to the bridge demanding to be told the reasons for his dismissal, where the following continued exchange took place: The applicant, "Why am I sacked?" Mr Gaioli, "Get off the boat". The applicant, "If you are sacking me I want a letter of dismissal stating why I am sacked". Mr Gaioli, "Get off the boat now or I'll call the police". The applicant, "I want to know why I'm sacked?" Mr Gaioli said: "I will give you a letter of dismissal on Monday, now get off the boat". 24 The applicant gave evidence that at that stage he collected his gear from his locker and left the boat and giving his security pass in. 25 On Monday 7 February, he had not received the letter of dismissal and he rang Mr Gaioli on Tuesday 8 February when according to Mr Byrne, Mr Gaioli told him he would not be sending him a letter of dismissal, but instead would offer him six weeks' pay plus annual leave if the applicant would provide a letter of resignation. That evidence was disputed by Mr Gaioli in his statement, claiming that only two weeks was offered to the applicant. 26 The applicant at that point told Mr Gaioli - according to him - that he would need to speak to his wife about the offer of six weeks' pay and the resignation. Mr Gaioli telephoned him on 9 February telling him that he needed the letter of resignation, and the applicant informed him he would not make a decision at that point. Later the same day he received another call from Mr Gaioli telling him he had until 4pm that day to send the letter of resignation, otherwise he would not be paid, but confirmed that if he received that, then he would send the letter of dismissal. 27 The applicant also claimed that around the time of his complaint with WorkCover, he checked the material safety data log books on board the ship, and made a copy of the data sheets relating to fuel oil and hydrogen sulphate levels, which showed that the hydrogen sulphate might be present in the vapour of the marine fuel, that handling procedures and personal protective measures should be followed to minimise employees exposure to avoid skin contaminations and toxic effect upon respiratory organs of the crew. The applicant also gave some additional evidence in that regard. 28 The respondent, for its part, relied upon the testing of procedures on 3 February which was the day before the applicant's dismissal, which showed that the loading of the vessel had been given the all clear by WorkCover. 29 In the respondent's evidence, the key witness for the respondent was Mr Joe Gaioli, described by the applicant as the manager of Trident Shipping. As he testified in his evidence, he was the managing director of GJ Shipping Services Pty Limited. Mr Gaioli gave evidence that early in 2005 he became aware of allegations that two people aboard the Amorina were arranging people to replace them when they were not available at work. The arrangement allegedly involved those people collecting a fee reportedly of $200 for arranging such work. It was this issue of the selling of shifts by employees, which was stated on record at the 17 March conciliation conference, as the reason for the applicant's dismissal, although this issue was not actually canvassed with the applicant prior to his dismissal. 30 As part of that investigation by Mr Gaioli, he gave evidence that he visited the Shell's Gore Bay terminal on the evening of 4 February, as indicated already by the applicant. He was speaking to one of the people involved, who was a Mr Hearn, who was at that stage on the poop deck (rear end), saying that he wanted to speak to him about the matters and after speaking to Mr Hearn, Mr Gaioli said he approached Mr Byrne, telling him to come to the bridge to discuss something, and according to Mr Gaioli, Mr Byrne, at that stage, jumped onto the wharf whilst another person secured the gangway and said words to the effect that, anything he had to say could be said there in front of the crew. That evidence was only partly contested by the applicant and supported by the evidence of Mr Yeo, who was a witness at the time and who verified that the applicant was actually bending down tying up the vessel crouched in a fashion of doing his shoe laces up at the time, i.e. crouching when he was approached by Mr Gaioli and not jumping down onto the wharf in the confrontationalist fashion testified to by the respondent through Mr Gaioli. 31 More specifically, Mr Gaioli, according to his evidence, asked Mr Byrne to proceed upstairs to speak to him about a matter, but did not specify the topic. According to Mr Gaioli the applicant answered, "Unless you speak to me now I'm getting off the ship". It was shown by the evidence of Mr Yeo that certainly he, Mr Yeo, was finishing for the weekend and it was his belief that Mr Byrne was also leaving the ship at that stage, which would account for his comment about getting off the ship. 32 Mr Byrne, according to Mr Gaioli, was very angry, so angry that Mr Gaioli was concerned about his welfare and said to Mr Byrne, "I don't want to create any problems, on the contrary I'd like to speak to you in the presence of the master so we can avoid any problems". Thereupon Mr Gaioli moved towards the bridge of the vessel with Mr Byrne following him onto the bridge where the master, Mr Collins and the mate, Mr Oscar Anderson were standing. 33 According to Mr Gaioli, Mr Byrne continued to abuse Mr Gaioli saying, "I will bring it on no matter what, if you want to fight me we'll fight". To which Mr Gaioli replied, "If you continue like that I will call the police". During this exchange, Mr Byrne was standing close to him with his fists clenched, Mr Byrne remained angry and the respondent terminated his employment immediately without notice on the basis of the threat. Mr Byrne indicated that he would not accept the dismissal unless it was confirmed in writing. 34 Mr Gaioli gave evidence that he wanted to break up the group, so to speak, and this relates to the employees that were allegedly involved in selling their shifts and indirectly, by that statement, implicated Mr Byrne in the alleged sale of shifts. 35 So he suggested to Mr Byrne they meet the following Monday. Mr Byrne repeated that he wanted his termination in writing, Mr Gaioli went ashore and spoke to the other employee involved in the overtime allegations, who made certain admissions to Mr Gaioli and Mr Hearn's employment was terminated. That employee lodged an unfair dismissal claim which came before the Australian Industrial Relations Commission, settled on confidential terms, the details of which were not traversed, understandably, before this Commission and the Commission notes that Mr Gaioli's evidence that certain admissions were made to him may very well have run counter to the usual tradition of not disclosing such matters subject to a confidential settlement before the Industrial Relations Commission. 36 Whilst talking to that other employee, according to Mr Gaioli, Mr Byrne turned up, still agitated and still demanding his letter of termination. Mr Gaioli tried to calm him down by saying, we'll speak to you on Monday. 37 In the week commencing 7 February Mr Gaioli took advice from his advisers, that is, the following Monday, which included Mr Davies who appeared as his agent in these proceedings. In a telephone conversation with Mr Byrne he told him that he would be prepared to accept his resignation and provide an ex gratia payment to settle the claim. He would make an offer which, according to Mr Gaioli, was two weeks and not the six contended by the applicant. He sent a formal letter confirming the termination by post on 14 February. That letter was attached to Mr Gaioli's statement which was exhibit 9 in these proceedings. The letter of termination dated, as I say, 14 February reads as follows: "Dear Chris, We refer to your conversation with the representative Joseph Gaioli on Friday 4 February 2005 and confirm that your employment with Trident Shipping was terminated effective from that day. As a result of your behaviour which was unacceptable and regarded as serious and wilful misconduct which warranted the termination. The details of moneys owing to you on termination will be advised shortly. If you have any inquiries". That letter was signed by Mr Brian Warburton, marine superintendent. 38 Mr Gaioli in his statement to the Commission disputed some of the details and dates given by the applicant as to the external consultants performing the occupational health and safety test as a result of the complaint to WorkCover. He repeated the reason for the termination of Mr Byrne was his serious and wilful misconduct on 4 February, that is, inviting Mr Gaioli to fight. 39 Mr Gaioli went on in his statement to deny certain matters maintained by Mr Morgan, who appeared on behalf of the applicant as to the frequency of Mr Morgan's hirings and how much contact he had had with the applicant. 40 In respect to another witness Mr Patrick Yeo for the applicant, he denied the contents of Mr Yeo's statement, which purported to overhear the exchange, although I must say Mr Yeo's statement was no great significance to the Commission because he readily conceded he was not around and did not hear the actual dismissal of the applicant, otherwise busying himself, and also going into the barge to pick up his belongings to leave for the weekend. 41 Also giving evidence was Mr Morgenthal, the WorkCover inspector involved in the investigations. 42 Mr Morgenthal's evidence involved exhibit 6 and was also the subject of documents brought under subpoena to the Commission. I think the most important thing about Mr Morgenthal's evidence was that he gave evidence that he was informed by Mr Sims from the Shell company that two employees - which included the applicant - had not been dismissed because of their complaint to WorkCover, but because they had been selling shifts to other employees. 43 Also again giving evidence in these matters for the respondent was Mr Collins, the master of the vessel. The importance of Captain Collins' evidence was that he denied both the extent and timing alleged by the applicant of when he made reference in front of the crew about the WorkCover visit. Captain Collins denied directly blaming the applicant for alerting WorkCover to investigate the fumes aboard the boat. 44 Mr Collins also gave evidence as to the applicant's conduct on the bridge but, interestingly, only partly supported the evidence of Mr Gaioli, in as much as that his evidence contended the applicant and Mr Gaioli were in an agitated state when they conversed on the bridge. 45 Mr Collins was asked by Mr Gaioli to take notes of the discussion with Mr Byrne. Mr Collins testified that Mr Byrne was abusive towards Mr Gaioli and Mr Gaioli said words to the effect, "If you don't calm down I will call the police", at which point the applicant became aggressive. At that point Mr Collins claimed that Mr Gaioli told the applicant he was sacked and supported the applicant's version that he asked for a letter of dismissal, which Mr Gaioli refused on the basis he should come back Monday and discuss the matter sensibly. 46 At that point, according to Mr Collins' recollection, things calmed down between the two gentlemen and Mr Byrne said to Mr Gaioli, "See you Monday". 47 The next stage of Mr Collins' statement denied that he had publicly denounced the applicant for informing WorkCover. He suggested however, that on 3 February he called the crew together, addressed the crew on the following terms, "WorkCover will be here to investigate the fumes aboard the boat", and adding, "Was that the work of anyone here, if so what is it all about". He claimed that no one responded to what he said. He also testified the previous Shell manager had told him loading with caps on the dip holes was an acceptable practice for this particular vessel. 48 It's not my intention to try and traverse all the evidence in this decision, but the other significant witness for the respondent was Mr Oscar Anderson. His evidence was the subject of a controversial witness statement. I should hasten to add actually two statements. The first of which was marked as exhibit 11, but when Mr Collins commenced his reading of his statement it became clear that he was in fact reading from another document to the one filed and having been handed up to the Commission, which he gave clear evidence was an accurate account of the applicant's dismissal. 49 There was ample opportunity given to Mr Anderson to indicate to the Commission that what he was reading was somehow inaccurate where it stood in contrast to the other statement purporting to his evidence, earlier filed and in front of the parties and handed up to the Commission. 50 Mr Anderson, it seems, had previously prepared a document which was subsequently superseded by exhibit 11. I marked the controversial document if I could call it that, said by Mr Anderson to be the correct one, exhibit 11A. That document was somewhat sensational in this case inasmuch as at paragraph 4 and 5 Mr Anderson says: "I looked down the gangway which was being secured by Chris Byrne, Joe Gaioli was with him. I clearly heard the following exchange or words to the effect, 'Mr Gaioli, I want to see you before you go'. The applicant, Mr Byrne, 'If you want to talk to me talk to me on the wharf'". That much was uncontested evidence, but the following was more controversial. 51 At para 5 Mr Anderson said, "There was a further exchange but I did not hear all of it", Mr Gaioli said words to the effect, "I'll sack you", and shortly afterwards, "I'll call the police and have you taken". Mr Anderson then said that at that stage Mr Gaioli then came to the bridge to talk to Mr Hearn. Mr Byrne came up to the bridge to talk to Mr Gaioli, Mr Collins was present, he says at para 8: "Joe say words to the effect, 'I'll take this up with you Monday', and Chris replied, 'If I'm sacked put it on paper.'" 52 To which on para 9 Mr Anderson claims that he said to Mr Byrne, "You might as well put your things back in the locker", to which the applicant replied, "No". According to Mr Anderson the applicant took his possessions and left the bridge. 53 I do not believe its relevant to talk about the other document which is marked 11 but suffice it to say that that document is entirely different, which goes more towards supporting the respondent's version of events, but more significantly, leaves out the fact that the applicant's received the words from Mr Gaioli whilst on the wharf, "I'll sack you", and then, "I'll call the police and have you taken", which appears with exhibit 11A CONSIDERATION 54 The conflicting nature of those two documents was a concern to the Commission where it came to accepting or rejecting the very keystone of the respondent's evidence of a threat supposedly delivered on the bridge to the person of Mr Gaioli. It is of concern that the respondent had obtained a different statement from Mr Anderson to the one certified by him under oath, especially given that both were signed by him. 55 It has been necessary for the Commission to assess the credibility of witnesses generally, given the significant differences between the evidence particularly between Mr Gaioli, who dismissed the applicant, and the applicant's version. 56 The Commission was never informed as to why Mr Byrne had not agreed immediately to proceed to the bridge of the vessel, but by all accounts, said to Mr Gaioli words to the effect - refusing to go to the bridge to discuss what Mr Gaioli wanted to talk about - insisting they should speak on the wharf instead. 57 The Commission is left to speculate as to why matters turned sour very quickly. It may have had something to do with the fact that Mr Gaioli was over confident, fresh from finding out that WorkCover (on the day before), had exonerated the company from any hazardous practice aboard the ship resulting from the applicant's complaint. Perhaps it is the way Mr Gaioli approached the applicant in a brusque manner, but no direct evidence was given as to that. 58 I must say Mr Byrne appeared to be a mild mannered man throughout these proceedings and normally one would say that there had to be some provocation for him firstly to have refused to go aboard the ship to discuss whatever Mr Gaioli had in mind. Perhaps his declining to go to the bridge had something to do with the fact that it was knock off time and thought that he should not be delayed. Again, another piece of speculation is that the exchange he had with Captain Collins that morning, questioning him for initiating his own relief casual so as to be available to look after the baby in the absence of his wife, had something to do with it, although Captain Collins did not support that this was an issue beyond raising it that morning, as canvassed earlier. 59 It was an unsatisfactory situation for the Commission that the strongest clue as to the reasons for the applicant being pulled up by Mr Gaioli that day arose from the earlier statement on transcript in the conference of 17th March before O'Neill C, from the respondent's advocate, that the applicant was dismissed along with another employee for selling shifts. That had some important implications from a point of view of the burden of proof - given that the applicant was effectively summarily dismissed. (See Pastrycook's V Gartrel White No. 3 (1990) 35 IR 70; Bigg V NSW Police Service (1998) 80 IR 434; Wang V Crestell Industries Pty Ltd (1997) 73 IR 454), amongst other well known authorities on the shift of burden of proof and requirement for proper investigation in dismissal for wilful and serious misconduct giving rise to instant dismissal as in this case). 60 The respondent relied then solely in these proceedings upon the misbehaviour of the applicant as broadly described in the letter of dismissal of 14 February outlined earlier in this decision and clarified as a threat of violence towards Mr Gaioli. So accepting that there was some resistance by the applicant in going aboard the ship to speak to Mr Gaioli, for reasons not explained and about whatever matter he had in mind, the Commission found it curious that Mr Gaioli would dismiss the applicant unless he believed him guilty of the issue of which the respondent failed to clarify, that is whether or not the applicant was a person of interest in respect of the sale of overtime shifts along with the other employee Mr Hearn. Regardless of that, the applicant gave a very plausible account of what was said to him by Mr Gaioli on the wharf, namely, "I'll make it simple for you, you are sacked". The Commission has already observed that such an utterance is more consistent with what was heard by Mr Anderson, and although not precisely the same, certainly detracts from Mr Gaioli's claim of the applicant offering violence and then being dismissed forthwith on the bridge. 61 It is also more plausible that the applicant at that stage followed Mr Gaioli on board only to dispute the dismissal, demanding a letter setting out the reasons for his dismissal or at least to be given the reasons for his dismissal there and then. It is significant that the respondent did not at that stage give evidence of what might have been said to the applicant for his reasons for dismissal. The Commission again is left to wonder as to whether it had something to do with the allegations of the sale of shifts or whether it had to do with the WorkCover complaint, as contended by the applicant in this case. He would be naturally shy of admitting that the dismissal was because of the WorkCover complaint, especially in front of others. 62 The respondent relied upon the allegation of Mr Gaioli that the applicant had said the key words, "I will bring it on no matter what, if you want to fight me we'll fight". If the Commission can pause there and analyse the allegation of Mr Gaioli, it must be said that even by the respondent's evidence, the applicant had not directly threatened Mr Gaioli with physical violence at that point but strictly speaking, according to words relied upon by Mr Gaioli, made an offer that if Mr Gaioli wanted to fight him, he (Mr Byrne) was willing to fight. There is a significant difference than if the applicant had actually invited Mr Gaioli to fight with him, and not made it conditional upon Mr Gaioli wanting to fight him. Mr Gaioli's claim as to the words used in the "threat" were actually more consistent with someone calling the bluff by way of response to someone threatening them. 63 Of more significance, however, was the fact that the ship's master, Mr Collins and the bunking master, Mr Anderson, did not recall those words in their evidence and made no mention of that verbal "threat" justifying the so-called summary dismissal of the applicant. Mr Gaioli's version too bereft of detail that the applicant would come violent simply because he was asked to the bridge to discuss something. 64 Mr Collins had in his statement - which is exhibit 10 in these proceedings - attached minutes of the meeting that he was asked to take. Nowhere in those minutes does he indicate that the applicant threatened Mr Gaioli in the fashion or even with words to the effect alleged by Mr Gaioli. In the Commission's view that must be fatal to Mr Gaioli's case alleging such a matter. 65 Neither does Mr Anderson. 66 Also relevant is the ship's log, attached to Mr Collins' statement, wherein again there is no mention of the offer of physical violence from Mr Byrne, apart from using words in an abusive manner. 67 In the absence of Mr Collins' and Mr Anderson's verification that these words offering a fight were used, the Commission believes it inconceivable that the applicant could have portrayed the appearance of such outward aggression as to justify his dismissal. No particulars were given by any of the respondent's witnesses exactly what was said to establish a show of unbridled anger justifying instant dismissal (that is quite apart from the alleged words offering a fight to Mr Gaioli if Mr Gaioli wished to participate in a fight). 68 In short, apart from the more direct failure of Mr Gaioli's evidence ruled upon earlier, it is more plausible that the applicant was dismissed on the wharf as he claimed and indirectly supported by the evidence of Mr Anderson. His agitation as described by Mr Collins and Mr Anderson was therefore more likely to have been purely out of anger at being dismissed, and of being fobbed off by Mr Gaioli when demanding to know why he was being dismissed and further fobbed off in his request to have it in writing. 69 This supports that another motive was behind the dismissal, and which might include that, upon hearing the admission of the other employee, Mr Hearn, in respect of the matter dealing with the sale of shifts, that Mr Gaioli without any investigation, either relied upon the information obtained from the other employee Hearn - (if that is it was in his possession at that time), and/or was motivated by the other important issue here - the complaint to WorkCover, to dismiss the applicant. Either explanation would account for the extraordinary behaviour of the respondent in summarily dismissing the applicant on the wharf and not as claimed on the bridge for threats to his employer. 70 There was another puzzle in this case where the applicant gave evidence of being approached in the morning by Mr Collins about his non attendance the first few hours of the shift, when he had taken the initiative to arrange his replacement with the first call casual by the name of Mr Hirsch, already mentioned. That issue, according to Mr Collins, was not pursued and the Commission was not given the benefit of any complete evidence as to that issue and certainly not from Mr Gaioli. Neither was it suggested that that issue was related to the important issue of the sale of the shifts. 71 The other issues raised in this matter were probably of less important character. The Commission finds it strange that the letter of 14 February finally sent to the applicant following his dismissal on 4 February took some 10 days to compose. Affecting Mr Gaioli's credibility in that area, was that he had suggested that he initially drafted the letter, but was forced to concede upon further examination that Mr Warburton, and Mr Davies himself, the advocate here, had a hand in composing it, before it was finally released. 72 When the termination letter was finally released to the applicant, it is noted as part of this decision that the letter gives no particulars as to the alleged misbehaviour which is a point strongly made by Mr Kennedy, the applicant's solicitor in final submissions. The letter was a very simple letter and, given that it does not refer to the offer to have a fight with Mr Gaioli by the applicant, it is a reasonable inference that the applicant's demeanour, observed by Mr Collins and Mr Anderson, as already stated, merely reflected the shock of dismissal. 73 There was some dispute as to whether or not Mr Byrne was the first person to be spoken to by Mr Gaioli. I found Mr Gaioli's evidence in that department somewhat shifty as to whether he spoke at the end of a gangway to Mr Hearn, it may be explainable on the mistake in logistics, but certainly the gangway was where Mr Byrne was, and Mr Gaioli insisted he had spoken on the poop deck, which is the very rear deck of the barge, to Mr Hearn and not using the gangway as originally claimed. 74 Another feature of this case is that the respondent may very well have been the subject to some inquiry by the WorkCover Authority as to the dismissal of the applicant over the issue of the WorkCover complaint. 75 Mr Davies made the point that Mr Morgenthal had invited the applicant to pursue the issue, but I think that it may also have been significant that Mr Morgenthal gave evidence that he had been informed by Mr Sims from Shell that the applicant and Mr Hearn had been dismissed for selling shifts in which case, that information, whether it's right or wrong (and certainly was not taken up in these proceedings before me), may have been the reason for Mr Morgenthal not to take the matter of their dismissal up on behalf of WorkCover. 76 It is certainly the case that there was a very live issue in the applicant's mind as to the safety of the loading procedures. The question is whether those matters before the Commission, on all of that, plus the comments of Captain Collins identify the applicant as the WorkCover informant even by his own version, which is certainly less pointed than what the applicant recalled - was sufficient to attract the Commission's attention under Section 210 subs (j) and to bring a remedy within that s 213. The Commission notes of course the reverse onus which is outlined in s 210 subs (2). 77 Also significant in these proceedings, distinct from the reverse onus of s.210(2), as pointed out by Mr Kennedy, the onus is on the employer - the evidentiary burden that is - shifts in an evidentiary sense to the respondent to prove the applicant's conduct justifying his summary dismissal for alleged serious and wilful misconduct. 78 I must say by any test, the applicant was not accorded procedural fairness whatever, and I have found that the applicant did not offer violence to Mr Gaioli for the reasons I have already suggested. Whilst there is a very large question as to the real reasons for the applicant's dismissal, whatever they were, there was no procedural fairness accorded to the applicant whatever. 79 The applicant cannot be described as having anything other than good conduct and behaviour throughout his service for the respondent. 80 It is also evident to the Commission that he has been very badly affected by his dismissal. 81 I am also cognisant of Mr Davies' strong submissions in respect of what efforts the applicant made to procure other employment. POSTSCRIPT TO DECISION EX-TEMPORE CONCLUSION/REMEDY: 82 Mr Byrne's loss of employment at a stage in his life with a small baby to support and with little prospect of attaining alternative employment of the same remuneration lost following his dismissal are aspects which I believe are relevant to my assessment of what compensation to award him pursuant to Section 89ss(5). 83 I have been required to consider the aspects of efforts to procure other employment and the earnings in other employment as per Section 89ss(6) and as focussed upon by Mr Davies, the employers advocate in this case. 84 I do not regard the fact that the applicant did not apply for a position back with a previous employer involved in harbour cruises as fatal to him receiving compensation at a substantial level, considering the long term loss involved. The applicant's evidence in that area was given without notice in response to cross-examination, and as such there is a distinct risk that he was denied the opportunity for a proper explanation. His earnings since dismissal have been minimal. 85 The applicant's dismissal has been found to be harsh, unjust and unreasonable, whatever the reason. 86 All in all, I have not been convinced to award anything other than the maximum compensation to Mr Byrne. Victimisation : 87 Mr Davies rightly pointed out that the issue of a possible breach under S210(J) of the Act was raised by the Commission itself at the commencement of the hearing on 7th November, and had not been the subject of any formal application relying on that section as such. Nonetheless, a large part of the respondent's case relied upon Mr Byrne's obvious pursuit of the issue of the loading of fuel with the dip hole covers off and the mushroom caps removed from the pressure valves to facilitate loading. The issue of victimisation was generally raised by the applicant's solicitor in correspondence earlier. 88 It was established that Mr Byrne pursued the matter with the barge's senior officer and older crew, but more importantly, lodged a complaint with WorkCover, which caused visits by official testers leading to a final all clear given on 3rd February, 2005, the day before his dismissal. 89 I have found the evidence of Mr Byrne to be reliable as against Mr Gaioli on the essential issue of why and where he was dismissed i.e. on the wharf and not on the breach for any threat of violence. 90 Captain Collins' evidence was relevant to victimisation and whilst I have noted that Captain Collins did not support Mr Gaioli in his statement in respect to the alleged threat, he nevertheless supported the respondent's case that the applicant was agitated and his demeanour of anger was clearly visible. The effect of Captain Collins' evidence was therefore to somewhat dovetail into Mr Gaioli's false account of the applicant offering violence to Mr Gaioli on the bridge of the vessel. Indirectly therefore, by his allowing the impression to be created that the applicant was seriously out of control in his anger, the implication being that he had also been guilty of the next step, which was to offer violence. 91 He was in a position on the bridge to be very sceptical at least that Mr Gaioli's account was unlikely. 92 This was a fine difference, but one which I believe can be relied upon by me to draw the inference that Captain Collins' evidence in respect to denying the public identification of the applicant as the informant to WorkCover in front of crew members, is not to be preferred over the applicant, who gave clear evidence that it was said to him in front of others, "so you finally gave us up did you?". That was a clear indication that the applicant was seen as a "troublemaker". 93 Because of the successful distortion of the real reason for the respondent's summary dismissal of the applicant, the Commission does not have before it any tangible reason for dismissal to compete with the WorkCover complaint issue. The issue of the applicant arranging for the first relief casual to replace him that day before his dismissal when he got short notice of the need to look after his baby son was discounted by Captain Collins as an issue. It was also in the respondent's interests to play down the issue of the sale of shifts as a reason for dismissal, given the shift of burden of proof in cases of summary dismissal, where no proper investigation or opportunity to defend the issue was provided to the applicant. Interestingly though, Mr Gaioli appeared not to be able to resist attempting to implicate the applicant, along with Mr Hearn in that practice. 94 The respondent's approach to this case lacked frankness all round and accordingly, I am satisfied that on the basis of the reverse onus of proof contemplated by Section 210(2) that the applicant's dismissal was at least partly related to his pursuit of the safety issue. Mr Gaioli, most likely buoyed by the favourable outcome of the WorkCover sponsored tests on fumes during loading the day before, felt vindicated in dismissing the applicant, at least in part, for lodging the official complaint to WorkCover. The other issue of suspicion of his involvement with the sale of shifts, may have been a factor, but does not deserve a finding confirming it as a prime reason. 95 However, to return to the theme raised by Mr Davies, that the application under Section 84 did not have with it a formal application to the Commission in respect to Section 213, I believe this raises the issue of prejudice to the respondent. Whilst it is true that the applicant's case revolved around the issue of victimisation, the relevant sections were not addressed in his case, except indirectly in a question from Mr Kennedy to his client, who answered yes to the question of whether he had been "victimised". 96 Had that part of the Act been formally canvassed by the applicant's case, the opportunity would have been given for the respondent to defend itself in terms of that part of the legislation in a structured fashion to deal with, inter alia, the implications of the reverse onus provision under Section 210(2). Accordingly, while the applicant's witness statement did lay substantial evidence upon the reasons for his dismissal being related to his pursuit of a safety issue, I believe a Brown and Dunn principle is at stake here, and accordingly, I decline to make any order under Section 213, in respect of Section 210(2). COSTS 97 Costs in respect of Section 84 applications are set out in Section 181(2) (c) as follows: (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious. 98 I have taken the opportunity to examine the correspondence in respect of offers made on behalf of the applicant and those made on behalf of the respondent, and note that their position is best summed up by the offer made on the day of hearing, which was for two weeks payment, although an offer of four (4) weeks was made on 19th July, 2005 in response to a revised offer of twelve (12) weeks on 18th July from the applicant. This offer followed an offer of four (4) months pay by the applicant himself, prior to briefing Mr Kennedy, in correspondence of 25th February, 2005, which also set out in some earnestness the unfairness alleged at the time, which is now borne out in hearing. 99 Having regard to the merits of Mr Byrne's case, which should have been apparent at an early stage, appropriate offers should have been made to avoid the costs to the applicant in advancing his case. The authorities in the area of costs such as IGA Distribution Pty Ltd Vs Mosses; Paris and Bankstown Council and other well quoted decisions of the Full Bench of the Commission, which I have taken into account, make clear the obligation to properly respond to and make reasonable offers to settle, which carries the obligation not to necessarily be satisfied with making one offer, in circumstances where the other party's case is worthy of such endeavours to settle. 100 The Full Bench of this Commission made comments relevant to this case where it said in Four Sons Pty Ltd Vs Sahchai Limsinpothong (No.2): "The obligations imposed on parties to proceedings under s 84 of the Act, as identified in the Full Bench judgment in Bankstown City Council v Paris, require parties to such proceedings to undertake a responsible and careful assessment of the prospects of the litigation, in the absence of which an unsuccessful party may realistically face the prospects of a costs order being made against it. In those circumstances, it may often be appropriate for a party to consider making an offer to settle, even if the offer could be seen, either with the benefit of hindsight or otherwise, to be at a rather low level. However, the making of such an offer on "the low side" does not exhaust the responsibilities of a party to reasonably attempt to settle the claim. It is conceivable that if the respondent had responded to those offers in a more timely way, the proceedings may have settled. We doubt, however, that that is the appropriate finding on the evidence before us. Rather, the evidence as to further negotiations makes plain that the appellant had no realistic intention to make an offer which was likely to settle the proceedings before McKenna C." 101 Here it has been shown that the respondent officially and finally relied upon false reason from Mr Gaioli's evidence and where procedural fairness was already likely to be a very live issue for this Commission and which should have been in the respondent's mind from the beginning of this case. 102 Accordingly, costs are awarded against the respondent on a party/party basis to be agreed or assessed. O R D E R S 1. The respondent, in Matter No. IRC 946 of 2005, Trident Shipping Services Pty Limited, is to pay to the applicant, Mr Christopher Byrne, an amount equivalent to twenty-six (26) weeks compensation at the gross weekly rate of $1,150 shown in his application, which calculates to a gross amount of $29,900 within twenty-one (21) days of the release of this decision. 2. Costs are to be paid to the applicant as agreed or assessed for the preparation and conduct of the case on 7th November, and 21st November, 2005 by the respondent. J P Murphy Commissioner. oOo 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.