Industrial Relations Commission of New South Wales CITATION: Dixon v J & A Cook Pty Ltd t-as Saltwater Bermagui [2007] NSWIRComm 1005 APPLICANT PARTIES: Mark Dixon RESPONDENT J & A Cook Pty Ltd t/as Saltwater Bermagui FILE NUMBER(S): 793 of 2006 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant employed as chef - workplace injury - absence from work - Applicant drives to workplace and is involved in incident with another employee re that employee allegedly calling Applicant's stepson a thief - Applicant leaves workplace and returns later - discussion between Applicant and a business partner of the Respondent - Applicant allegedly threatened to kill certain persons and poison patrons of the Respondent - Applicant's different version of discussion has him being dismissed for workplace injury extended absence - Applicant summarily dismissed - onus on Respondent - onus not satisfied - dismissal unfair - compensation ordered. LEGISLATION CITED: Industrial Relations Act 1996 D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 CASES CITED: Outboard World Pty Ltd v Muir (1993) 51 IR 167 Briginshaw v Briginshaw (1938) 60 CLR 336 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 HEARING DATES: 13/09/06, 14/09/06 DATE OF JUDGMENT: 5 March 2007 APPLICANT Mark Dixon, self represented LEGAL REPRESENTATIVES: RESPONDENT Mr J Clarke, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 5 March 2007 Matter No IRC 793 of 2006 Mark Dixon and J & A Cook Pty Ltd t/as Saltwater at Bermagui Application by Mark Dixon re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1005 1 This is an application by Mark Dixon ("the Applicant") for unfair dismissal against J & A Cook Pty Ltd t/as Saltwater at Bermagui ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions before myself on 16 March 2006, in Wollongong. The matter was set down for a Hearing and a filing program for witness statements and evidentiary material was put in place, given that the matter could not be settled. 3 The Hearing took place in Moruya Court House on 13 and 14 September 2006. 4 At the Hearing, the Applicant was self-represented. Apart from calling himself as a witness, the Applicant called the following: Graham Lewkowicz - school student and step-son of the Applicant; Michelle Williams - defacto partner of the Applicant; Michael Lewkowicz - school student and step-son of the Applicant. The Respondent was represented by Mr John Clarke, solicitor who called the following witnesses: Gail Kenny - former employee John Gnacinski - business partner of the Respondent BACKGROUND 5 The Applicant was employed as a chef by the Respondent ("Saltwater at Bermagui"). He began his employment in December 2004. 6 The Applicant was dismissed due to incidents that occurred around the workplace on 30 January 2006. 7 The termination of employment letter, dated 31 January 2006, was written by the Respondent's instructing firm of solicitors. It advised that the Applicant's services were being terminated "immediately" for circumstances in which the Applicant threatened to: (a) kill the proprietors of the business; (b) kill and harm other staff members; and (c) poison customers of the business. 8 The Applicant attached to his unfair dismissal application a document addressed to the attention of the principal of the Respondent's instructing law firm. This document is signed by the Applicant and dated 13 February 2006. The Applicant advised that: (a) he was on workers compensation for a hernia; (b) he had shown up at the place of business around 1.30 pm and asked Ms Gail Kenny (staff member) to stop verbally attacking his son and making up rumours about him and his family; (c) he was asked to return at 3.00 pm to meet John Gnacinski to discuss these issues; (d) at that (3.00 pm) discussion, John Gnacinski advised the Applicant his services were no longer required because of the Applicant's work injury; (e) the police arrived some ten minutes later, to take the Applicant to Bega Valley Hospital, as he was extremely distressed at the way he was treated by his employer; (f) he did not threaten to kill or poison anyone. FINAL SUBMISSIONS For the Respondent 9 Mr Clarke, solicitor for the Respondent, put the following submissions: (a) The Applicant was summarily dismissed. (b) The summary dismissal occurred by way of letter dated 31 January 2006 and did not occur, as the Applicant contends, on 30 January near the business location during the discussion between the Applicant and John Gnacinski. (c) Being a summary dismissal, the Respondent carried the onus of proving the facts upon which it relied to dismiss the Applicant. (d) As to the events of 30 January 2006, the Respondent's version of the events was to be preferred. Those events included the initial conversation between the Applicant and Gail Kenny. Even on the Applicant's version of the conversation, he showed himself to be in an agitated state. The evidence would support that he was already in an agitated state before his conversation with Ms Kenny. Ms Kenny drove some ten (10) kms to voice her concern with business partner, John Gnacinski who reacted with concern and drove to the restaurant. He met with the Applicant. Mr Gnacinski's version of that conversation was to be preferred. Mr Gnacinski did not terminate the services of the Applicant on that day but the next day - after seeking advice from his law firm. The Applicant was not dismissed because of his being on workers compensation but because of his conduct on 30 January. (e) As to the other major issue, the correct rate of pay for the Applicant, it was submitted that the Respondent had taken measures to ensure that the Applicant's remuneration details were correctly recorded and all remuneration arrangements were above board. For the Applicant 10 Mr Dixon put the following in final submissions: (a) He had been paid $300 in cash in his pay envelope since 25 October - on top of his normal net wage. (b) The restaurant had been open on the night of a blackout in the Bega shire. Gail Kenny was working at the restaurant that night which was the night that she allegedly abused one of the Applicant's step-sons. (Allegedly this was the incident that caused the Applicant to front Gail Kenny on 30 January 2006.) (c) The police report into the incident of 30 January showed he had not done anything wrong. (d) He had not made any threats to kill anyone. (e) John Gnacinski had seen the Applicant coming back through town and therefore knew that he could meet the Applicant in the carpark (near the restaurant). This observation explained how Mr Gnacinski came to be in the carpark around 3.00 pm on 30 January. (f) The pay slips of the Respondent are defective in that they don't show information about meal allowance, uniform allowance, etc. (g) The Applicant was a grade 7 chef under the relevant award. (h) He is seeking compensation. Respondent in Reply 11 Mr Clarke said that issues about superannuation and workers compensation raised by the Applicant in his submissions, should be disregarded as those issues were not put in evidence. CONSIDERATION 12 The Applicant contends that he was dismissed on Monday, 30 January 2006, during a discussion between himself and John Gnacinski, business partner of the Saltwater at Bermagui Restaurant (the Respondent). He further alleges that the reason for dismissal was the Applicant's inability to work as the chef because of a worker's compensation injury. Mr Gnacinski denies that that is the reason for dismissal. There were no witnesses to this conversation which took place in a carpark located nearby to the restaurant. The Respondent contends that the Applicant was summarily dismissed by letter dated 31 January 2006. The reason for summary dismissal is the conduct of the Applicant the day before in the carpark located nearby the restaurant. 13 Before considering the Applicant's allegation as to the reason for dismissal, the Commission will consider the Respondent's reason for summary dismissal. Given that it is a summary dismissal, the Respondent carries the onus to prove that the facts existed to support Mr Gnacinski's decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant) has to prove that those facts existed, on the balance of probabilities. Given the serious allegation by the Respondent that the Applicant threatened to kill and poison persons, there needs to be substantive evidence produced by the Respondent to show that the Applicant did indeed threaten to kill and poison persons. This substantive evidence is required so that the Commission is comfortably satisfied that the Applicant did make the threats to kill and poison persons. The above standard of proof required of the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354 - 369 per Dixon J. The Dismissal Letter 14 The dismissal letter of 31 January 2006 is written on the letterhead of the Respondent's instructing law firm (Ex 16 - annex A). The letter refers to the incidents of the day before (Monday, 30 January) involving the Applicant and certain persons. The letter states (on instructions from the Respondent) that: (a) At approximately 1.30 pm, the Applicant attended the business premises and abused and threatened Gail Kenney. (b) The Applicant attempted to climb over the shop counter (take away counter of the restaurant) to assault Gail Kenney. (c) Gail Kenney then found it necessary to call the local police. (d) During this behaviour, the Applicant threatened to kill John Gnacinski and Phyllis Goudge. (e) The Applicant then left the premises. (f) At approximately 3.10 pm, the Applicant returned to the business premises and confronted John Gnacinski outside the restaurant. (g) The Applicant told Mr Gnacinski that he and Phillis Goudge had ruined his life because of some incident apparently suffered by the Applicant during the course of a surgery operation. (h) The Applicant repeatedly threatened to kill John Gnacinski and Phyllis Goudge by stabbing them with a knife. (i) The Applicant repeatedly invited John Gnacinski to strike the Applicant. (j) The Applicant repeatedly said he would gouge Mr Gnacinski's eyes out. (k) The Applicant, upon his return to work (he was off work per workers compensation), said that he intended to poison the restaurant's customers and ensure the restaurant was closed down. (l) The Applicant was removed by the police and taken away. 15 The foregoing list of matters surrounding the Applicant, centre around the Applicant's attendance at the business premises: at approximately 1.30 pm and 3.10 pm. It should be noted that the Applicant's alleged behaviour did not take place inside the restaurant. For the first incident (1.30 pm), the Applicant was standing outside the restaurant at the takeaway counter. The second incident (3.10 pm) occurred in the carpark adjacent to the restaurant. The 1.30 pm Incident 16 The Applicant pulled into the restaurant carpark area around 1.30 pm on 30 January. He had not intended to do so, he deposed. He had his two stepsons with him and they were on their way to Narooma to purchase school uniforms. But on the way, the eldest stepson, Graham Lewkowicz, related an incident in which he had been accused by Gail Kenney of attempting to steal a meal from the restaurant. The stepson was allegedly accused of trying to obtain a second takeaway meal after already having had his ordered takeaway meal. Gail Kenney denied that this incident had taken place and said she was not at the restaurant the night in question because of a general electricity blackout in the area. 17 In any event, the Applicant deposed it was this alleged meal theft incident that caused the Applicant to make a detour to the restaurant. 18 The Commission has already set out the list of matters alleged above about the Applicant's behaviour for the 1.30 pm and 3.10 pm incidents. 19 As to the 1.30 pm incident, the termination letter alleged that the Applicant: (a) had abused and threatened Gail Kenney; (b) had attempted to climb over the takeover counter to assault Gail Kenney; and (c) had threatened to kill John Gnacinski and Phyllis Goudge. The Commission will now deal with these allegations below. 20 Gail Kenney's witness statement (Ex 15) makes no reference to the allegation against the Applicant that: (b) he attempted to climb over the takeaway counter and assault her. 21 John Gnacinski's witness statement deposes that Ms Kenney told him that the Applicant tried to jump the servery. (Ex 16 - para 13) His witness statement makes no reference to the remaining part of the allegation about "assault". 22 During examination-in-chief, Gail Kenney raised that the Applicant "was coming across the counter at me which I found was a bit aggressive." (Tr 67, line 52 to Tr 68, line 10) Even if this evidence was accepted as stated, it is only evidence of coming across the counter. To say that the Applicant "was a bit aggressive", is not the same as saying that he intended to assault Ms Kenney. The Applicant was unrepresented and did not specifically deal with this allegation. He did put, at the end of his cross-examination of Ms Kenney, that all she had to say was " lies " - and this was denied by her. The Applicant cross-examined John Gnacinski on this allegation (attempted to climb over the takeover counter and assault Gail Kenney) appearing in the dismissal letter but not appearing in Mr Gnacinski's statement. He agreed that that was so. (Tr 109 - line 23 to 43) That is, Mr Gnacinski was presumably agreeing that both aspects to this allegation did not appear in his statement. However, he was in error in so agreeing as the first aspect of attempting to climb over the takeaway counter did appear in his witness statement. 23 In summary so far, the Commission finds that there was no allegation made by Gail Kenney that the Applicant attempted to jump the counter and assault Ms Kenney. 24 An abbreviated allegation (that is, minus "the assault") was raised by Mr Gnacinski in his statement that Gail Kenney had told him that the Applicant tried to jump the takeaway counter. (Ex 16 - para 13) The Commission has already noted that this allegation does not appear in Ms Kenney's statement - but was raised by her in oral evidence. The Applicant cross-examined John Gnacinski on this allegation and asked why would he, the Applicant, try to jump the counter, when all he had to do was enter the restaurant via the open doors. (Tr 97, lines 5 to 27) 25 In summary of this watered down allegation (attempted to jump the counter only), the Commission finds that it is not proven. In coming to that view, the Commission finds that the question posed by the Applicant to Mr Gnacinski about entering the restaurant via open doors instead of attempting to jump the counter, is a pointed question. Further, the undisputed evidence about the Applicant's medical fitness, was that he had a hernia operation about two months prior and was still in pain and on workers compensation. Why try to jump a counter in that medical condition? Finally, the watered down allegation is one person's word against another. There were references to other persons being present in the kitchen/takeaway counter area. These persons are employees of the Respondent and were not called to give evidence about anything surrounding this first incident. The Respondent had the onus to prove this allegation and did not satisfy that onus. 26 The other allegation against the Applicant that does not appear in the witness statement of Gail Kenney is that the Applicant (c) threatened to kill John Gnacinski and Phyllis Goudge. This is a threat he reportedly made to her - according to the dismissal letter. (Ex 16 - annex A) The oral evidence of Gail Kenney did not produce any evidence from her in support of the above allegation being made by the Applicant to her. The Commission accordingly finds that this allegation has no foundation. (There was evidence-in-chief from Ms Kenney of her telephone conversation with Sarah Kleber in which Ms Kleber allegedly said that the Applicant telephoned Ms Kleber and made threats to the lives of Mr Gnacinski and Ms Goudge and the life of Ms Kenney as well. (Ms Kleber is the rehabilitation manager for the Applicant.) (Tr 70, line 7 to 43) This evidence-in-chief information as to her telephone conversation with Ms Kleber, is a serious allegation (threats against the lives of three persons), but yet does not appear in the witness statement of Ms Kenney.) The Commission will, for consideration, return to this new allegation of Ms Kenney's, later in this Decision. 27 The third allegation in the dismissal letter, arising out of the 1.30 pm incident, is that the Applicant (a) abused and threatened Gail Kenney. Ms Kenney deposed the Applicant said: "You fat fucking bitch" and "I am going to get you to (sic "too"), you're going to get it." (Ex 15 - para 14) 28 The Applicant deposed as to the former assertion, above, that he said, "fat bitch". (Ex 11 - paras 107 and 109) Under cross-examination, he said that this was not directed at Ms Kenney but said to two other employees present in the takeaway area (Beadman and Wilson). He said he was asking of them as to where was "fat bitch" Kenney and that was how everyone talked about her behind her back. (Tr 39, line 11 to 25) 29 As to the other assertion ("I am going to get you ..."), there is an implication of harm intended by the Applicant against Ms Kenney. Gail Kenney was questioned about this assertion during examination-in-chief. She said she didn't know what this assertion meant. She also gave evidence that she felt that the Applicant was going to attack her. (Tr 69 - line 19 to 39) The Applicant was not cross-examined about this assertion. 30 The Applicant put to Ms Kenney at the end of his cross-examination of her, that her statement/evidence was all "lies". Ms Kenney disagreed. 31 In summary of this allegation, the Commission notes that there are two aspects to it: abused Gail Kenney and threatened Gail Kenney. As to the latter aspect, the Commission notes that the allegation is one person's word against another. There were references to other persons being present in the kitchen/takeaway counter area. These persons are employees of the Respondent and were not called to give evidence about anything surrounding this allegation. The Applicant was not cross-examined on this aspect of the third allegation and accordingly the Commission gives it no weight. The Respondent had the onus to prove this allegation and did not satisfy that onus. As to the first aspect of the allegation, there is conflicting evidence as to what was said but even on the Applicant's account, he deposed he called Gail Kenney: "fat bitch". It seems to the Commission that Gail Kenney could feel abused by this terminology. Interim Events 32 Before dealing with the 3.10 pm incident, the Commission will consider the events that took place post the 1.30 pm incident and before the 3.10 pm incident. 33 Ms Kenney deposed she contacted the police arising out of the behaviour of the Applicant. This call she said was made around 1.30 pm and the Applicant had by then left the site. 34 Mr Gnacinski deposed he received a telephone call from Sarah Kleber, the rehabilitation case manager, for the Applicant, from Commonwealth Rehabilitation Service, Bega. He deposed she said that the Applicant had just contacted her and said he was going to "ruin your (Mr Gnacinski) life the same way as you have ruined his. He says he is coming to kill you and Philly (Phyllis Gouge)" He then deposed that "shortly thereafter" his assistant (Naomi Van Lint) advised him that Gail Kenney had just called to advise of threats by the Applicant and that Gail Kenney was on her way (10 km trip) to see John Gnacinski. He deposed that Gail Kenney arrived around 2.00 pm. (Ex 16 - paras 11 to 13) 35 Within the above interim events, is the serious allegation of a threat by the Applicant to kill John Gnacinski and Phyllis Goudge. (Mr Gnacinski gave evidence that Phyllis Goudge is his wife - Tr 80, line 16 to 21) This serious allegation was not made by the Applicant to Gail Kenney as claimed in the dismissal letter. This allegation comes from John Gnacinski who said he obtained this information over the telephone from Sarah Kleber. 36 The Applicant was cross-examined about Sarah Kleber. He confirmed she is his case manager and he telephoned her on 30 January. He did so before setting off on his car journey to buy school uniforms - and hence before 1.30 pm. The Applicant telephoned Sarah Kleber because he was " very upset. I needed someone to speak to and that I was in a lot of pain and I - I was crying out for help ... because my partner and I weren't talking ... and I was very open with her (that is, Kleber)." (Tr 46 - line 43 to 49) 37 The Applicant was not cross-examined on the other part of the alleged Kleber assertion that he told her that he intended to kill John Gnacinski and Phyllis Goudge. 38 John Gnacinski listened to Gail Kenney's version of the 1.30 pm incident and decided, he said, to drive to the restaurant. Gail Kenney gave the evidence, for the first time under evidence-in-chief, of a message that John Gnacinski had for her upon his arrival at the restaurant. He told her that Sarah Kleber wanted Ms Kenney to telephone her. This she did, she said, and was given the alleged message that the Applicant had telephoned Ms Kleber and had made threats against the lives of Mr Gnacinski, Ms Goudge and Ms Kenney. The Commission will consider this new allegation that came out in evidence-in-chief, later in this Decision. 39 In summary of the allegation raised by Mr Gnacinski as to what he claims was said to him by Sarah Kleber, the Commission finds that this allegation is not proven. Thus, the Applicant was not specifically asked if he had threatened to kill John Gnacinski and his wife, Phyllis Goudge, during his telephone conversation with Ms Kleber. Importantly, the Commission notes that the Respondent did not call Sarah Kleber to give evidence in support of this serious allegation. To the extent that this allegation was tied up in the cross-examination of the Applicant about ruining the lives of those two persons, the Applicant denied that allegation. The Applicant said that his use of the term "ruining my life" (Ex 11 - para 139) in his statement, was a financial reference to the Applicant's claim he was being underpaid by the Respondent (and nothing more than that). (Tr 47 - line 25 to Tr 48 - line 5) The 3.10 pm Incident 40 The Applicant came back to the restaurant, with his two stepsons, around mid-afternoon. He met with John Gnacinski in the carpark. This conversation is in dispute as to its content. This conversation also involved John Gnacinski walking over to the car, containing the two stepsons, and having a brief conversation with them. This conversation is in dispute as to its content. Whilst one of the two above conversations was taking place, the police arrived. After a short interval, the police drove the Applicant away and took him to Bega Hospital. 41 The Commission will firstly consider the Gnacinski - Applicant conversation, as to which there were no witnesses. The Commission notes that in respect of the observation that there were no witnesses, that Gail Kenney deposed that she saw the Applicant "waving his arms and I could hear him yelling threats to Mr Gnacinski" (Ex 15 - para 18) The Commission does not know what this means as this assertion of Gail Kenney's was not explored. Accordingly, the Commission cannot give any weight to this assertion. 42 The dismissal letter of 31 January alleges that during this conversation, the Applicant: (a) said that John Gnacinski and Phyllis Goudge had ruined his life because of some incident apparently suffered by the Applicant during the course of surgery at the hands of a doctor; (b) repeatedly threatened to kill John Gnacinski and Phyllis Goudge by stabbing them with a knife; (c) repeatedly invited John Gnacinski to strike the Applicant; (d) repeatedly said he would gouge out the eyes of John Gnacinski; and (e) said he intended to poison the customers of the restaurant and ensure the restaurant was closed down. (Ex 16, annex A) 43 The above allegations are not reproduced exactly in John Gnacinski's witnesses statement. (Ex 16) Thus, there is the allegation of killing Gnacinski and Goudge in his statement but no reference to how this would be done - let alone by a knife. Thus, the allegation in the dismissal letter that the Applicant " repeatedly invited " John Gnacinski to strike the Applicant, is not expressed as an invitation at all in Mr Gnacinski's witness statement. Instead the latter expresses this allegation as a conjecture on his part: "... and I formed a view that he was attempting to provoke me into hitting him. " (emphasis added) Ex 16 - para 17) 44 Putting aside those inconsistencies, the Commission now turns to the evidence that fell in respect of the above allegations. 45 The first allegation (a) contained in the termination letter goes to the life of the Applicant being ruined by Mr Gnacinski and Ms Goudge because of a surgical mishap. As the Commission understands the allegation, it is that his hernia arose out of his work in the restaurant. That is, he was required to lift buckets of sea water for restaurant use and did so by hand. There was no pulley system in place. This was how the hernia came about. He had an operation but it went wrong and caused him to have severe groin pain. In turn, he had time off work on workers compensation and continued to do so at the time of his dismissal. 46 The Commission finds that it is possible that the Applicant held the Respondent responsible for his medical condition - that is, but for them not having a pulley system in place, he would not have sustained a hernia. 47 The second allegation (b) is the serious allegation to kill Gnacinski and Goudge with a knife. The Commission has already noted that Mr Gnacinki's witness statement contains no reference to a knife. During examination-in-chief, Mr Gnacinski was asked by his solicitor, if the Applicant had threatened his life. Mr Gnacinski responded: " Well, he didn't - he said, "I'm going to hurt you - you and Phyllie the same way as you hurt me. "" (emphasis added) (Tr 89 - line 42 to 44) The above quotation is a denial of a threat to the life of Mr Gnacinski. (The Commission notes that Ms Goudge was not included in the question.) 48 There is a claim of "hurt you - you and Phyllie the same way as you hurt me." This response by Mr Gnacinski was not explored as to its meaning. Given that Mr Gnacinski said " Well, he didn't " threaten my life, then the Commission finds that this allegation (as to a physical hurt) has been negated by Mr Gnacinski. The Commission notes that this Decision earlier records the Applicant saying that "ruining the life" of John Gnacinski and Phyllis Goudge had a financial context only - that is, he claimed he had been under-remunerated by them and wanted to be paid his correct remuneration - as he saw it. 49 The third allegation (c) is that the Applicant repeatedly invited John Gnacinski to strike the Applicant. The Commission has already noted that Mr Gnacinski's witness statement said he, John Gnacinski, "formed a view that he was attempting to provoke me into hitting him." The "forming of a view" is but speculation as to the attitude of the Applicant - rather than an expressed statement by the Applicant of inviting a strike on himself. The Applicant put the above inconsistency to Mr Gnacinski who said the Applicant did invite him to strike the Applicant. The Applicant denied this allegation. 50 Before commenting on this allegation, the Commission turns to the fourth allegation (d), because Mr Gnacinski linked the third and fourth allegations. Thus, Mr Gnacinski gave oral evidence, under cross-examination, that the Applicant said, "Hit me and I will gouge your eyes out." The Applicant denied this allegation as well. (Tr 107, line 14 to Tr 108, line 40) 51 Likewise, before commenting on these two allegations, the Commission will deal with the fifth and final allegation, which, like the others, is a serious allegation. This allegation (e), is that the Applicant intended to poison the customers of the restaurant and ensure the restaurant was closed down. 52 During examination-in-chief, Mr Gnacinski raised a new matter in support of the above poisoning of customers allegation. He gave evidence of a story told by the Applicant to him. The story was that the Applicant cooked rotten chicken and served it to different persons. The Applicant did this in a Canberra shop. This story gave Mr Gnacinski genuine concerns in support of this allegation of poisoning the restaurant's patrons. (Tr 91, line 5 to 27) The Commission cannot give any weight to this new matter as it was not put to the Applicant when he was being cross-examined. As to the poisoning allegation of the restaurant patrons, this was not put to the Applicant whilst he was in the witness box. 53 In summary of the five allegations made about the 3.10 pm incident, the Commission firstly notes that the second allegation (b) threatened to kill Gnacinski and Goudge had, in effect, been withdrawn, when Mr Gnacinski gave oral evidence that the Applicant had not threatened the life of John Gnacinski. Further, the fifth allegation (e) poisoning the restaurant's patrons was not put to the Applicant for comment and cannot be relied upon by the Respondent in the Commission's deliberations. This then leaves three allegations and three denials being: (a) that Gnacinski and Goudge had ruined the Applicant's life because of a surgical mishap (c) repeatedly invited Gnacinski to strike the Applicant, and (d) repeatedly threatened to gouge out the eyes of John Gnacinski. The Commission will consider these three allegations after dealing with the involvement of the local police force in the 3.10 pm incident. 54 As to the discussion between John Gnacinski and the Applicant, it also involved a brief discussion between John Gnacinski and the stepsons who were inside the car. The content of this discussion is in dispute. John Gnacinski denied the Applicant's version of the conversation that John Gnacinski apologised for the conduct of Gail Kenney earlier on (1.30 pm). 55 The discussion (and alleged apology) took place between John Gnacinski and Graham Lewkowicz (a stepson of the Applicant). Also present (and confirming the apology) is another stepson, Michael Lewkowicz. The Applicant also said an apology was given. The Respondent's solicitor, in final submissions, raised the issue of bias (when assessing evidence) in respect of the evidence of the three witnesses who were "close" to the Applicant: the defacto and the two stepsons. It was not necessary for the Commission to resolve that issue in respect of this "apology conversation". The Police Intervention 56 The final matter pertaining to the 3.10pm incident to be considered, is the arrival of two police officers. Mr Gnacinski deposed that arrival this way: "Shortly thereafter, a police car arrived in the carpark and the police immediately walked over to where Mr Dixon (the Applicant) and I were standing. The police motioned for me go away while they dealt with Mr Dixon. A short time later I observed the police searching Mr Dixon and he was then placed into the back of the police vehicle and taken away." (Ex 16 - para 18) 57 The above quote shows that there was no discussion between John Gnacinski and the police. However, in examination-in-chief, Mr Gnacinski reports that there was a very brief discussion between him and the police. He was verbally directed away from the police officers attendance on the person of the Applicant. That is consistent with Mr Gnacinski's witness statement that he was motioned away. But the evidence that is not contained in his witness statement is the following alleged statement from one of the police officers to John Gnacinski: A. " Well, the state of him (the Applicant) and the way he looks you'd be better off to get a caveat onto him or " --- Q. You mean an AVO? A. An AVO on him so he can't come near the place, he said, " I suggest you do that " or he said, " If he's going to perform like that. " He said, you'd better - you better sack him . "" (emphasis added) (Tr 90, line 1 to 22) 58 The Police Report (Ex 4) gives the time of the incident as 3.30 pm and states that their arrival was due to the "Poi behaving in a threatening manner towards his ex boss." (The Commission believes that "Poi" means "Person of interest".) The Commission firstly notes that the police cannot have known if the Applicant was behaving in a " threatening manner " because the police had only just arrived on the scene. This "threatening manner" allegation is what caused the police to be there. 59 The Commission secondly notes that the person being threatened is described as "his ex boss". Who is this person? The Applicant's employer is a certain company but one of the two owners is John Gnacinski. This is the person that the Applicant said sacked him during their carpark conversation - just before the police arrived. The Applicant said he was dismissed because he told John Gnacinski that he would still be absent from work due to his workplace injury. The use of the term, "ex boss" in the Police Report is consistent with the Applicant's version of the carpark conversation that would then have the Applicant giving information to the police to the effect that John Gnacinski was no longer his employer. 60 Contrary evidence to the Applicant being the source of the information for the term "ex boss" appearing in the Police Report, is the Applicant's witness statement making no reference to the Applicant using that term - let alone stating that he had been dismissed. Indeed, his witness statement contains a sentence which suggests that no dismissal had taken place: "(I) said (to the police officer) that we (John Gnacinski and the Applicant) had worked everything out and I was just going now." (Ex 11 - para 158) This statement though is at odds with an earlier assertion in his statement that John Gnacinski said (during this car park conversation) his services were no longer needed. (Ex 11 - para 143) 61 That inconsistency was not resolved during cross-examination of the Applicant who was only asked one question about the arrival of the police. Although the Applicant gave a lengthy response, it clearly did not cover, for example, the police assisting the Applicant to the police vehicle and whatever else was said beforehand between the police and the Applicant. That lengthy response by the Applicant was not followed up with another question as to whether anything else was said. (Tr 46 - line 3 to 36) 62 That still leaves the Commission puzzled as to why the Police Report uses the term, "ex boss". 63 The Police Report continued thus: " Police attend and found Poi in a distressed state. Due to an operation that went wrong, the Poi is not very well mentally or physically and he blames his ex boss, because the injury happened at work. The Poi stated that he was suicidal as he just split up with his wife also and was in lots of pain. The Poi was taken to Bega Hospital and spoke with Mental Health. They stated he was fine and Police were allowed to leave. The Pois ex boss is taking out an AVO against the Poi ." (emphasis added) 64 The last paragraph in the above police Report helps to confirm that the term, "ex boss" refers to John Gnacinski, who gave evidence (reported elsewhere in this Decision) that he had been given the suggestion by the police to take out an apprehended violence order against the Applicant. 65 Again the Commission is puzzled as to why the Police Report uses the term "ex boss" to describe John Gnacinski. 66 The Police Report is accurate in matters stated by it: the operation had gone wrong and the injury did happen at work; the Applicant told the police he had suicidal thoughts and had split up with his partner (not wife as said in Police Report): and the Applicant was taken to Bega Hospital by the police to make sure he was all right mentally. (Ex 11 - paras 162 to 168) 67 The Police Report also said that the Poi was in a "distressed state". This was confirmed by the Applicant as being told by him to the police. (Tr 46 - line 24 to 25) 68 What is not reported in the Police Report is John Gnacinski's evidence-in-chief that he was given advice by the police to "sack him" (that is, the Applicant). John Gnacinski also gave evidence that it was not just the police who gave advice to him to sack the Applicant. He said he spoke to WorkCover about the carpark incident (and the allegation of poisoning the customers) and WorkCover suggested that Mr Gnacinski ring a lawyer " or put the bloke o ff". He also rang " the insurance people " who advised " to put him off ". (Tr 90 - line 29 to 58) 69 What is also not reported in the Police Report are the allegations said to have occurred that day, being the Applicant's alleged threats: to kill John Gnacinski and his wife, Phyllis Goudge; to gouge out the eyes of John Gnacinski; and to poison the patrons of the restaurant. It seems odd to the Commission that these serious allegations were not raised by John Gnacinski with the police. Although John Gnacinski gave evidence that he approached the police but was directed not to do so, he still managed to have a conversation with the police, who suggested he get an apprehended violence order against the Applicant and suggested he sack the Applicant. It seems odd to the Commission that in the context of the police being called out because of the alleged threatening behaviour of the Applicant, and the suggestion of the taking out of an apprehended violence order by the police to Mr Gnacinski, - that Mr Gnacinski would not raise such serious allegations with the police. 70 Putting aside for the moment, those matters not contained in the Police Report, it seems to the Commission that the Police Report contains accurate information as to that information that was put to the police - largely by the Applicant. The Police Report was not put to John Gnacinski in order for him to comment on the Police Report or to challenge the accuracy of the Police Report. In particular, John Gnacinski was not asked to comment on the term "ex boss" and that the surrounding context (apprehended violence order) implicated John Gnacinski as being the "ex boss". There is no doubt in the Commission's mind that he is the person being referred to by that term, as the "ex boss" is said to be taking out an apprehended violence order against the Applicant. (That taking out of an apprehended violence order against the Applicant is repeated by John Gnacinski's solicitor in the summary dismissal letter.) Summary of the Dismissal Letter Allegations 71 The dismissal letter sets out two lots of allegations against the Applicant: the allegations made by Gail Kenney on the one hand; and the allegations made by John Gnacinski on the other. 72 The Commission firstly dealt with the Gail Kenney allegations The Commission found that the dismissal letter's allegation that the Applicant attempted to climb over the shop (takeaway) counter to assault Gail Kenney was not an allegation made by Gail Kenney. Her allegation was an abbreviated allegation that the Applicant " was coming across the counter at me which I found was a bit aggressive ." The Commission found that to say "a bit aggressive", is not the same as saying that an assault is intended. The Commission then finally found that this abbreviated allegation (minus "the assault") had not been proven, on the balance of probabilities, because (a) there were witnesses to this alleged incident but they had not been brought forward by the Respondent who carried the onus to prove the facts to support a summary dismissal; and (b) the Applicant not only denied the watered down allegation but reasonably pointed out that he was in no fit state, medically, to climb over the counter. That is, he had recently had a hernia operation and was still off on workers compensation and in pain. He also pointed out that if he wanted to be aggressive towards Gail Kenny, all he had to do was enter the restaurant via the open doors, rather than come over the counter, 73 The second allegation attributed to Gail Kenney in the dismissal letter, is that she said the Applicant (whilst at the takeaway counter) threatened to kill John Gnacinski and Phyllis Goudge. The Commission found that this allegation had no foundation as Gail Kenney had not made this allegation, at all. 74 The Commission did consider this allegation under the heading of Interim Events. The allegation was made by John Gnacinski in his witness statement, that he had received a telephone call from Sarah Kleber who allegedly said the Applicant told her he was going to kill John Gnacinski and Phyllis Goudge. The Commission is not able to give any weight to this claim. This allegation, by Sarah Kleber, does not appear in the dismissal letter. This allegation was not put to the Applicant in the witness box. Sarah Kleber was not called as a witness by the Respondent (who carries the burden of proof) in order to prove this allegation. 75 This allegation but slightly amended was raised during proceedings for the first time by Gail Kenney during her evidence-in-chief. This new allegation was that the Applicant had threatened the lives of Gnacinski, Goudge and Kenney herself. This new allegation came from a telephone conversation that Ms Kenney had with Ms Kleber. The telephone call was made when Mr Gnacinski arrived at the restaurant and gave Ms Kenney a message to telephone Ms Kleber. The Commission is not able to give any weight to this new allegation. It was not put to the Applicant whilst he was in the witness box. It was not put in the dismissal letter. (A different allegation about killing Gnacinski and Goudge only was put in dismissal letter but this allegation, per the dismissal letter, was attributed to Gail Kenney and not to Sarah Kleber.) Finally, and once again, Sarah Kleber was not called as a witness to support the Respondent's case against the Applicant - especially given that she was the source on two occasions for this serious allegation. 76 The third allegation attributed to Gail Kenney is that the Applicant abused and threatened her. The Applicant denied he called her a "fat fucking bitch" but called her a "fat bitch". He also denied generally the allegations made by Gail Kenney as "lies". The Commission split this allegation into two parts and found that the latter part of the allegation (threatened Gail Kenney)had not been proven. This part of the allegation was one person's word against another but that could have been resolved by the Respondent calling the, at least, two employees who were witnesses to the Applicant - Kenney incident. These witnesses were not called. The other part of the allegation is that the Applicant abused Gail Kenney. He said he called her a "fat bitch" and this could be viewed as abuse directed at her. That terminology is not appropriate but, on balance, is not an offence warranting dismissal, let alone summary dismissal. The Commission is also conscious that had a meeting been held with the Applicant to put this allegation to him, and have him concede he said what he said, then a more appropriate disciplinary outcome may have resulted - that is, a warning. 77 The second lot of allegations against the Applicant are the five allegations made by John Gnacinski, as to the mid afternoon conversation with the Applicant and which concluded with the arrival of the police. 78 The Commission made a preliminary summary of the five allegations at paragraph 53 above. Importantly, the Commission noted and now finds that the second allegation (b) threatened to kill Gnacinski and Goudge had, in effect, been withdrawn through the oral evidence of John Gnacinski. Further, the fifth allegation (e) poisoning the restaurant's patrons was not put to the Applicant for comment and could not be relied upon by the Respondent. 79 That being the case, then two serious allegations (threats to people's lives) could not be relied upon to support the summary dismissal against the Applicant. 80 Having excluded two of the allegations (albeit serious allegations), this leaves three allegations for consideration by the Commission as to whether the Respondent has satisfied the onus, of proving on the balance of probabilities, that the Applicant made these three allegations. 81 It is possible that there is merit to the first allegation: (a) the Applicant felt that Gnacinski and Goudge had ruined his life because of a surgical mishap. The surgical mishap did occur. That is, the Applicant suffered and was still suffering pain from the hernia operation due to a surgical mishap. When the first allegation is considered this way, the Commission does not view it as an allegation that warrants disciplinary action by the Respondent against the Applicant. If however, the allegation is viewed as a threat to ruin the life of Gnacinski and Goudge because of the need for a hernia operation caused by the Respondent's lack of a pulley system for drawing water, then the Applicant denied that this allegation had a threat to people's lives connotation. His evidence was that he was being under remunerated and he wanted to be paid his correct monetary entitlement. Whether there was any merit to this claim, or not, is irrelevant. It is possible that he was upset in being out of pocket - as he saw it. Even if the Applicant made a demand on John Gnacinski for his correct entitlements (as he saw it) and was assertive in making that demand - it does not follow that that in itself is a dismissal offence. 82 The other two allegations: (c) the Applicant repeatedly invited Gnacinski to strike the Applicant, and (d) repeatedly threatened to gouge out the eyes of John Gnacinski, were denied by the Applicant. There were no witnesses to these serious allegations. The Respondent carried the onus to prove these allegations on the balance of probabilities and did not do so. CONCLUSION 83 The Respondent carries the onus of proving that the allegations made against the Applicant, in the summary dismissal letter, took place - on the balance of probabilities and did not do so. Mr Clarke, solicitor, for the Respondent put to the Commission in final submissions that the version of events put forward by the Respondent was to be preferred. It seems to the Commission that in putting the submission that way (the preferred version), Mr Clarke was conscious that the Respondent had a lack of witnesses in support of the Respondent's allegations. Thus, the employee witnesses who were present for the allegations made by Gail Kenney, about the Applicant, were not witnesses in the case. Thus, Sarah Kleber was not produced as a witness to back up the Respondent's claim that the Applicant had told her, he was going to kill Gnacinski and Goudge. She was not produced to back up the allegation, twice made: once by Gnacinski (and found in his witness statement) and the other by Kenney who raised this allegation (slightly amended to include herself as being a person to be harmed) for the first time during her evidence-in-chief and after the Applicant had already been examined in the witness box. 84 In considering the Respondent's preferred version of events, the Commission analysed the two lots of allegations: that lot attributed to Gail Kenney; and the other lot attributed to John Gnacinski. In considering the Respondent's preferred version of events, the Commission is concerned that a serious allegation said to be made by Gail Kenney against the Applicant, was not made by her at all. That serious allegation attributed to Gail Kenney is that the Applicant threatened to kill Gnacinski and Goudge - but the Applicant made no such threat to her at all. 85 That serious allegation was also attributed to Sarah Kleber by Mr Gnacinski during their telephone calls. This was the second time, in a chronological sequence, that the Respondent had raised this serious allegation but Sarah Kleber was not called as a witness. 86 That serious allegation (but slightly amended to include harm against Ms Kenney) was attributed to Sarah Kleber by Ms Kenney during their telephone call. This was the third time in chronological sequence, that the Respondent had raised this serious allegation but Sarah Kleber was not called as a witness. 87 That serious allegation is raised for a fourth time against the Applicant and this time by John Gnacinski during their car park conversation. But during evidence-in-chief, John Gnacinski said the Applicant did not make this serious allegation. 88 It seems to the Commission that to make such a serious allegation - attribute it to the wrong person (Kenney) - not produce another (Kleber) who claims to have been told it by the Applicant, according to the Respondent - and then have Mr Gnacinski withdraw the allegation but he relied upon as it as a ground for summary dismissal - casts a credibility cloud over the Respondent's preferred version of events. 89 Similarly, in terms of credibility, the fifth allegation against the Applicant was that he intended to poison the customers of the restaurant and ensure the restaurant was closed down. This allegation was not put to him for comment, whilst he was being cross-examined. How can such a serious allegation not be put to the Applicant? The fact that it was not, leaves an impression that not only could the allegation not be sustained, but that the allegation had no foundation in the first place. 90 The Commission draws the conclusion that the Respondent has not satisfied the onus placed on it in terms of proving the grounds for summary dismissal. More than that, the Commission is of the view that the credibility question raised about two of the Respondents' allegations (kill the proprietors of the business and poison the patrons), goes beyond just those two allegations. That is, the Commission has drawn conclusions about the other three allegations arising out of the Gnacinski - Applicant car park conversation and found them not proven. Accordingly, the Commission is unable to accept that the Respondent's version of events is the preferred version. 91 It is not necessary for the Commission to decide on the merit or otherwise of the Applicant's version of events - in order to decide on the onus placed on the Respondent in proving its case. Be that as it may, there is an independent piece of evidence that supports the Applicant's version of the car park conversation. 92 The Applicant said he told John Gnacinski that he was still off on workers compensation and did not know when he would be able to return to work. The Applicant was the chef of the restaurant. The Applicant deposed he was dismissed by John Gnacinski once this uncertainty as to a return to work date was given to Mr Gnacinski. John Gnacinski denied he dismissed the Applicant for this reason. 93 There were no witnesses to the car park conversation. But the Police Report (Ex 4) gives an account of their intervention in the car park conversation and uses the term "ex boss" in that Police Report. The Commission determined that the "ex boss" being identified, by inference, was John Gnacinski. This piece of evidence gives credence to the Applicant's version of events that he was dismissed during this carpark conversation - but it is not a matter that the Commission relies upon to determine the outcome of the onus placed on the Respondent to support its summary dismissal decision. 94 Having considered all of the evidence, the Commission concludes that the summary dismissal of the Applicant was harsh, unjust and unreasonable: Outboard World Pty Ltd (t/as Budget Waste Control Sydney) v Muir (1993) 51 IR 167. 95 The Applicant has sought compensation as his remedy. In assessing a claim for monetary compensation, the Commission must consider the provisions of s 89(6) - that is, whether an Applicant made a reasonable attempt to find alternative employment and the remuneration gained by an Applicant who succeeded in obtaining alternative employment. However, s 89(6) is not to be taken as a simple, mathematical formula in the assessment of compensation and the Commission retains its discretion to order the appropriate quantum of compensation, as the Commission deems appropriate for the circumstances under consideration: D and R Commercial Pty Ltd v Floo d (2002) 113 IR 344. The Commission is aware that the Applicant was in receipt of workers compensation monetary relief. 96 The Commission also notes that reinstatement was not sought and the Commission has formed the view that reinstatement is impracticable. 97 In considering the quantum of compensation that is appropriate, the Commission has had regard to a number of matters: · the circumstances surrounding the cessation of the employer - employee relationship; · the seriousness of the allegations against the Applicant; · the Applicant was summarily dismissed but the Commission has found without basis; · the Applicant was not given an opportunity to defend himself or give an explanation before the decision was taken to dismiss him; · the Applicant was a full time employee of approximately two years standing; · the Applicant was on workers compensation. O R D E R S In this matter, for reasons outlined herein, I have determined that the dismissal was harsh, unjust and unreasonable and I hereby make the following orders: (a) The Commission orders that the Respondent pay to the Applicant an amount of compensation of $13,000 gross. (b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald 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.