Industrial Relations Commission of New South Wales CITATION: Bartlett and Cini v. Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 FIRST APPLICANT Aaron Bartlett PARTIES: SECOND APPLICANT Guy Cini RESPONDENT Mario Scerri FILE NUMBER(S): IRC 3885 and 3886 of 2005 CORAM: Connor C CATCHWORDS: termination of employment - alleged assault on employer - conflict in evidence - claims of unfair dismissal - onus of proof - claim settled for one employee - monetary compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 AWU - FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 Briginshaw v. Briginshaw (1938) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 CASES CITED: G J Coles and Company Limited v. Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 Henderson v. Rural Lands Protection Board (1997) 74 IR 142 Jones v. Dunkel (1959) 101 CLR 298 Loty's Case (1971) AR 95 M v. M (1988) 63 ALJR 108 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 HEARING DATES: 17/05/2006 DATE OF JUDGMENT: 05/27/2006 APPLICANTS Bill Redpath Pamela Coward and Associates LEGAL REPRESENTATIVES: RESPONDENT Peter Schulz Peter Schulz and Associates DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 25 May, 2006 Matter No IRC 3885 and 3886 of 2005 Aaron Bartlett and Guy Cini and Mario Scerri, trading as Mario's Fresh and Frozen Foods Applications under S.84 of the Industrial Relations Act, 1996 DECISION [2006] NSWIRComm 1084 Preliminary 1 Two applications have been lodged under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act concerning the termination of the services of two employees engaged as delivery drivers by Mr Mario Scerri, trading as Marios Fresh and Frozen Foods, viz: (i) an application by Mr Aaron Bartlett who was employed from Monday, 26 July, 2004; and (ii) an application by Mr Guy Cini who was employed from Monday, 8 September, 2004. 2 Mr Scerri's business is the processing and delivery of fresh poultry and frozen foodstuff. His business is based in Queanbeyan and he employs several product delivery drivers, including Mr Bartlett and Mr Cini up to the time their services were terminated. The services of both employees were terminated summarily on Friday, 8 July, 2005 when they were both involved in an altercation with Mr Scerri. According to Mr Scerri, Mr Bartlett commenced the altercation and Mr Cini subsequently joined in, supporting Mr Bartlett. Both employees claim that it was, in fact, Mr Scerri who started the altercation. They have claimed that their dismissal was unfair and they have sought monetary compensation over it. 3 The matters were allocated to me and were originally set down for a preliminary hearing in the Queanbeyan Court House on Thursday, 8 September, 2005. However, it became necessary for me to attend to issues in Sydney and the matter was set down for a telephone link-up. Ultimately, it was adjourned until I was next in Queanbeyan - Thursday, 3 November, 2005. Conciliation failed to settle the matters at that time. Whilst Mr Scerri was prepared to accept an offer of settlement for Mr Cini, whom he accepted had not instigated the altercation, he refused to do so in the case of Mr Bartlett, whom he claimed had been the instigator of the altercation. 4 I programmed the two Part 6 applications for arbitration. As there was some uncertainty concerning the arrangement of any country listings with the proposed centralisation of court listings in 2006, I set the matters down for mention and programming on Wednesday, 15 February, 2006 (in Sydney) and Wednesday, 22 March, 2006 (in Queanbeyan). Ultimately, the matters proceeded into arbitration in a hearing on Wednesday, 17 May, 2006 (in Queanbeyan). Mr Redpath represented Mr Bartlett and Mr Cini in the proceedings, calling them to give evidence. Mr Schulz represented Mr Scerri in the hearing. He called Mr Scerri to give evidence in the hearing. 5 In fact, Mr Cini's Part 6 application was resolved by conciliation and Mr Redpath informed me of that fact at the commencement of the hearing. An offer had been made by Mr Redpath on behalf of both Mr Bartlett and Mr Cini to settle the two Part 6 applications. Mr Scerri had accepted the offer with respect to Mr Cini but not with respect to Mr Bartlett. Mr Schulz had communicated Mr Scerri's position in a letter forwarded to me by facsimile transmission on Monday, 27 March, 2006, viz: "...I...confirm our current position with regard to Mr Redpath's offer of three weeks pay for both applicants in full settlement, with proviso for monies owed to the company by Mr Cini be deducted from this amount. Mario's Fresh and Frozen Foods confirms that they agree with this approach in the case of Mr Cini...but reject this approach in Mr Bartlett's case..." In the circumstances, on the basis of that settlement, I propose to grant leave to Mr Cini to discontinue his Part 6 application. The remaining issue involving Mr Bartlett turns on the incident on Friday, 8 July, 2006 when Mr Scerri, Mr Bartlett and Mr Cini were involved in the altercation and there is a significant and disturbing conflict in the evidence over what actually happened in that incident. The Version of the Incident by Mr Bartlett and Mr Cini 6 According to Mr Bartlett, on Friday, 8 July, 2005 he was preparing to leave the depot for his deliveries when Mr Scerri approached him and requested that he take boxes of chickens off the van as the chickens were the wrong size. Mr Bartlett informed Mr Scerri that it would be necessary for him to take off much of the contents of the van as those boxes of chickens were underneath the other stock. It was agreed that Mr Bartlett would make his deliveries and bring the boxes of chickens back at the end of his run. Nevertheless, the customer, a local restaurateur, was satisfied with the chickens supplied and, whilst they were the wrong size, he indicated that he would take them anyway. Mr Bartlett had not forgotten Mr Scerri's instructions but, as he explained in his evidence, he took the view that "...the customer was always right...". 7 Mr Bartlett returned to the depot. He and Mr Cini were sorting out the second run deliveries when Mr Scerri approached and asked where the boxes of chicken were. Mr Bartlett told him that the customer had taken them and Mr Scerri began shouting at him and abusing him - "...went off his nut...", according to Mr Bartlett in his evidence. It is not altogether clear why Mr Scerri was so concerned. There was a difference in price for the chickens: the chickens which Mr Bartlett supplied in error were more expensive than what was billed but that was something which could be rectified with a replacement bill and it subsequently was rectified. But when Mr Scerri shouted and abused him, Mr Bartlett commented, using words to the following effect: "I don't talk to you like that. So don't talk to me like that. I don't have to put up with this." 8 Mr Scerri responded: "You don't tell me anything. You're fired. Fuck off." Mr Bartlett's reply was: "Fine. Give me a separation certificate and I will be gone." Mr Cini continued to load the van. Mr Bartlett left and waited in the office to get his separation certificate. 9 Mr Bartlett asked Mr Scerri again for the separation certificate only to be told: "You're not getting anything." Mr Bartlett left the office and was talking to Mr Cini when Mr Scerri shouted out to him from the office door to leave his jacket behind. The jacket was the property of Mr Scerri's business. Mr Bartlett took off the jacket. Mr Cini indicated in his written statement that Mr Bartlett by that time "...obviously had the shits..." and he threw the jacket away on the ground which was wet from rain that had fallen that day. 10 Mr Cini claimed that Mr Scerri left the office, walked up to Mr Bartlett and "...king hit..." him on the side of the face with a closed fist. Mr Bartlett's written statement records that: "...the next thing I know I had been punched in the mouth and tripped over a pallet. Mr Cini jumped up in the middle to stop anything else from happening. I picked up my mobile telephone and went to the bottom of the dock so I could call the police..." Mr Cini claimed that he attempted unsuccessfully to calm Mr Scerri down. Mr Scerri walked away but came back, calling Mr Cini a "troublemaker" and an "arse licker" and that he only did what Mr Bartlett told him to do. 11 Mr Scerri then asked Mr Cini: "Do you want to have a go?" Walking down to where Mr Cini was loading the van. According to Mr Cini, Mr Scerri "...took a swing at..." him, which did not connect. Mr Cini stepped out of the way. Mr Scerri told Mr Cini that he was dismissed as well, viz: "Fuck off and don't bother coming back." When Mr Cini asked why he had been dismissed, Mr Scerri walked away. 12 Mr Bartlett and Mr Cini visited the local police station to report the incident. Nothing has come from their complaint to the police, however. They formed the impression that the police did not intend to take the matter up and the two employees did not press their complaint. Instead, the police officer who attended to their complaint suggested that they pursue an unfair dismissal claim and they did so. The Version of the Incident by Mr Scerri 13 According to Mr Scerri, when on Friday, 8 July, 2005 he discovered that an order of cartons of chickens had been incorrectly picked, he approached Mr Bartlett who had loaded the cartons and asked him to unload them. He also asked Mr Bartlett to tell the customer that the correct delivery would be made on the following day. Mr Bartlett informed Mr Scerri that the cartons had been packed at the bottom of the loads on his van and it was agreed that they would not be delivered but would be returned at the end of his run. Mr Scerri told Mr Bartlett not to deliver the load. 14 When Mr Bartlett returned to the depot from his first run and Mr Scerri discovered that he had, in fact, delivered the chickens, he spoke to Mr Bartlett, asking him: "Why did you overrule me?" Mr Scerri claimed in the written statement which formed the basis of his evidence that Mr Bartlett began swearing at him and "...calling him everything under the sun...", saying that he did not have to take "shit" from Mr Scerri and that: "I do not give a fuck if you are the boss. I do not have to do what you say." Mr Scerri claimed that he tried to calm Mr Bartlett down but was not successful in doing so. 15 At that point Mr Bartlett physically raised his hands to fight him. Mr Scerri recalled in his witness statement that: "...at this stage I felt definitely physically threatened by someone less than half my age and significantly bigger. He kept shouting that I should sack him and give it to him in writing. I stated that I would not do that as I was still hopeful that the situation was resolvable. Unfortunately this did not occur and Mr Bartlett kept swearing. I then told him he should leave the depot, hoping that time might resolve the matter. Mr Bartlett then took off the company jacket and threw it out into the yard in the rain, saying that I could '...shove my job up my arse...'. I told him to go and get it. He again raised his fists to me and told me to get fucked. He came at me. I raised my hands to defend myself and Mr Bartlett took a step back and tripped over a pallet on the dock..." 16 Mr Scerri claims that at that time Mr Cini also began moving towards him with his fists raised. Mr Scerri now believes that Mr Cini, who had obviously observed the incident, thought incorrectly that Mr Scerri had hit Mr Bartlett and, consequently, he had come forward to defend Mr Bartlett. (It is for that reason that Mr Scerri was prepared to compromise Mr Cini's Part 6 application with a sum of money but not the claim by Mr Bartlett.) In any event, Mr Scerri was fearful that Mr Cini would hit him as well and he put up his hands to defend himself. Mr Scerri told Mr Cini that he had not hit Mr Bartlett but, if Mr Cini intended to pursue the matter further he should leave the premises with Mr Bartlett. He did not intend that he be dismissed - only that he leave until he had cooled down. 17 Both Mr Bartlett and Mr Cini walked off the site, yelling that they would be taking the matter up with the local police. Mr Scerri waited for the police to attend the depot but they did not appear. Mr Scerri does not believe that the two employees approached the police at all. He originally believed that the matter may have blown over but, in view of the violent attitude of the two employees to him, he came to realise that they could no longer return to work for him - and they clearly did not wish to do so in any case. 18 Mr Schulz had written statements from two other persons who had overheard the argument between Mr Scerri, Mr Bartlett and Mr Cini but those persons were not available for cross-examination. Moreover, any evidence that they would lead would take me not much farther than what is already before me in the evidence of Mr Bartlett, Mr Cini and Mr Scerri. Those other persons could go no further by way of evidence than to establish that an altercation took place - and that is not in dispute. 19 Furthermore, all of this incident would have been observed on one of the security surveillance camera set for the dock area but that is not available as evidence in this hearing. Mr Scerri recorded in his written statement that: "...three days after these events we had the premises broken into and the police attended. We attempted to view the video security footage of the loading dock, but found that water had got into the system and that all previous footage had been destroyed. This is why no footage is available to support the facts..." It is unfortunate that the relevant surveillance tape is not available. It would no doubt have gone some way to resolving the conflict in the evidence before me in this hearing. As it is, it is the credibility of Mr Scerri, Mr Bartlett and Mr Cini on which this hearing relies. The Unfairness in the Dismissal 20 As Mr Schulz indicated in his submissions, any employee who is engaged in a fight at his place of work, especially where that fight is with his supervisor or his employer, ordinarily presents an open and shut case for summary dismissal. The Full Bench of the former State Industrial Commission (Fisher J - President, Macken and Sweeney JJ) in G J Coles and Company Limited v. Shop, Distributive and Allied Employees' Association of New South Wales (1983) 6 IR 42 expressed the position succinctly (at p.44), viz: "…In our opinion, an employee who strikes another employee in the workplace will normally be guilty of serious misconduct justifying summary dismissal..." 21 But there may still be extenuating circumstances. As Moore J of the former Federal Industrial Relations Court commented in AWU-FIME Amalgamated Union v. Queensland Alumina Limited (1995) 62 IR 385 at p.393: "…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…" 22 And the onus of proof in cases involving misconduct, which is denied, falls on the party making the allegation [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84]. That principle was confirmed by the Full Bench of the Commission (Cahill J -Vice President, Hill J and French C) in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz: "…The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362…" 23 I have to say that the version of the incident on Friday, 8 July, 2005 advanced by Mr Bartlett and Mr Cini has about it a ring of authenticity which, in my opinion, the version advanced by Mr Scerri lacks. The rather inconvenient destruction of the video surveillance tapes may not raise the matter to the level where I would be prepared to draw an inference that would undermine the claims made by Mr Scerri [Jones v. Dunkel (1959) 101 CLR 298]. But there are a number of aspects to Mr Scerri's version of the incident which do not stack up and, in my opinion, it is certainly less plausible than the version advanced by Mr Bartlett and Mr Cini in this hearing, viz: (i) Mr Bartlett would from the outset have had no reason to be angry enough to strike Mr Scerri or to threaten him whilst, by comparison, I believe that Mr Scerri was angry with him for delivering the cartons of chickens contrary to his instructions; (ii) no doubt later in the confrontation Mr Bartlett's temper got the better of him, prompting him to throw his jacket on the wet ground, but he would not have taken that jacket off and thrown it down if Mr Scerri had not already dismissed him and demanded that he return the jacket; (iii) it was Mr Scerri who approached Mr Bartlett and not the other way around: if Mr Scerri was so concerned about Mr Bartlett's aggression, he would not have approached him after he had thrown the jacket on the ground; (iv) Mr Scerri's version of events is uncorroborated: Mr Cini corroborates Mr Bartlett's version of the incident, which he observed from the outset; (v) Mr Scerri has claimed that Mr Bartlett was raising his fists and "...coming at him..." and yet, at the same time, Mr Bartlett fell backwards over a pallet: he could not have been moving in two directions at the same time; and (vi) the fact that Mr Bartlett and Mr Cini approached the local police over the incident - and I am satisfied that they did so notwithstanding Mr Scerri's suspicions to the contrary - suggests to me that they believed that they had been assaulted by Mr Scerri. 24 In those circumstances, of course, it is trite to say that the termination of Mr Bartlett's services was unfair. (So too was the termination of Mr Cini's services but that is no longer an issue before me.) Using the language adopted by Sheldon J of the former Commission in Loty's Case (1971) AR 95 at p.99 I am satisfied that the two dismissed employees did not receive a "fair go" from Mr Scerri or, using the words of S.84(1), on which any Part 6 application rely, the conduct of Mr Scerri when he dismissed them was "harsh", "unreasonable" or "unjust" [Busways v. Johnson (1994) 55 IR 255 at p.261]. 25 Reinstatement in employment under S.89(1) remains the primary remedy for an unfairly dismissed employee [Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346]. But, in the circumstances, clearly there is no likelihood of restoring any effective employment relationship between Mr Scerri and Mr Bartlett. Nor does Mr Bartlett seek it. Shortly after his dismissal - within four weeks - he found alternative employment. The claim of Mr Bartlett is therefore confined to monetary compensation under S.89(5) alone. 26 The upper limit for monetary compensation is set by S.89(5) as: "…an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed…" Any claim for monetary compensation must also be considered bearing in mind the provisions of S.89(6), viz: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." 27 S.89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer [Henderson v. Rural Lands Protection Board (1997) 74 IR 142 at p.150]. Since Mr Bartlett remained unemployed for only a very brief period following his dismissal by Mr Scerri, that fact must therefore act to limit the amount of monetary compensation to which he would be entitled under Ss.89(5) and (6). 28 Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. S.89(6) does not provide for a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work [D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 at p.363]. The only jurisdictional limitation is the six month ceiling in S.89(5): the rest is a matter for my discretion. 29 In the circumstances, based on the figure of from $420.00 which Mr Bartlett recorded in his Part 6 application as his average weekly remuneration when he worked for Mr Scerri (and which Mr Schulz accepted), I propose to order that he pay to him the sum of $1,500.00. O R D E R 1. Mr Mario Scerri shall pay to Mr Aaron Bartlett the sum of $1,500.00 within 21 days. 2. I grant Mr Guy Cini leave to discontinue his Part 6 application in accordance with Rules 138 and 140, subject to the finalisation of the matter in the manner agreed between the parties. 3. This order shall take effect on and from Thursday, 25 May, 2006. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.