Industrial Relations Commission of New South Wales CITATION: Moad and A Whistle & Co Pty Ltd t.as Electrodry Carpet Cleaning [2006] NSWIRComm 1143 APPLICANT PARTIES: Michael Anthony Moad RESPONDENT A Whistle & Co (1979) Pty Limited t/as Electrodry Carpet Cleaning FILE NUMBER(S): 5482 of 2005 CORAM: Stanton C Termination of employment - summary dismissal - serious and wilful misconduct - alleged intimidation and threats of violence - profane language - work-related stress - workers' compensation - no full or proper investigation - procedural fairness - whether dismissal harsh, unreasonable and unjust - compensation sought. CATCHWORDS: Held, dismissal harsh unreasonable and unjust - compensation ordered. LEGISLATION CITED: Industrial Relations Act 1996 Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano [2006] NSWIRComm 1077 Antonakopoulos and State Bank of New South Wales (1999) 91 IR 385 Buckman v Burdekin Resources NL (1998) 85 IR 415 Byrne & Anor v Australian Airlines Ltd (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Franklins Ltd v Webb (1996) 72 IR 257 Howarth and Linfox Armaguard Pty Limited [2005] NSWIRComm 1170 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Knott v Carlton United Breweries Limited (1958) 13 IIB 212 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 North v Television Corporation Limited (1976) 11 ALR 599 Paris v Bankstown City Council [1999] NSWIRComm 10 Pastrycooks Employees, Biscuit Makers Employees & Flour and Standley and Electronics Boutique Australia Pty Limited (IRC98/4516, Sams DP, unreported, 18 March 1999) Sugar Goods Workers' Union (NSW) v Gartrell White [No 3] (1990) 35 IR 70 HEARING DATES: 28/03/2006, 13/04/06 DATE OF JUDGMENT: 09/27/2006 APPLICANT Mr R Wilkinson of counsel SOLICITOR LEGAL REPRESENTATIVES: Ms R Flick, Cleaves Mallik Gibbs RESPONDENT Mr B Evans, Agent DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : Stanton C Thursday, 28 eptember 2006 Matter No IRC 5482 of 2005 Michael Anthony Moad and A Whistle & Co (1979) Pty Limited t/as Electrodry Carpet Cleaning Application by Michael Anthony Moad re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1143 1 This matter concerns an application pursuant to s 84 of the Industrial Relations Act 1996 (the Act) made by Mr Michael Anthony Moad ("the applicant") who was dismissed by A Whistle & Co (1979) Pty Limited trading as Electrodry Carpet Cleaning ("the respondent") on 5 October 2005 for alleged intimidation of staff members and threatening staff with violence. In submissions, it was the respondent's case that its Operations Manager did not rely on these stated reasons as grounds for summarily dismissing the applicant. Rather, the Operations Manager relied on the applicant's threat of violence put to him at a meeting in his office on 4 October 2005. 2 The respondent operates a carpet cleaning business. At the time of his dismissal, the applicant states his earnings varied between $600 and $650 per week. 3 At the hearing of the matter on 28 March and 13 April 2006, Mr R Wilkinson of counsel appeared for the applicant, instructed by Ms R Fleck, Solicitor. Mr B Evans, Industrial Agent appeared for the respondent. 4 Mr Wilkinson brought evidence from the applicant. Mr Evans brought evidence from Ms P Wade, Ms K Carr, Ms N Bass, Ms N Schofield and Mr G Burchell. 5 The applicant contended his dismissal on 5 October 2005 was harsh, unreasonable and unjust. The applicant's Employment Separation Certificate stated "Approached staff in a threatening manner. Threatened staff with violence". The Employer Reply completed by Mr G Burchell, Operations Manager referred to an exchange between the applicant and himself on 4 October 2005 and relevantly stated: Mr Moad acted in an aggressive and confrontational manner towards other staff. This matter was addressed with Michael and I asked him to apologise to the staff members involved. He refused to do so. Later in the same conversation Michael stated to me, "If we were not in the office right now I would beat the ... shit out of you". This has created a situation where I now feel intimidated and threatened by Michael. 6 The applicant denies Mr Burchell's recollection of what he is alleged to have said to him. The applicant asserts Mr Burchell told him to write an apology to Ms Wade following his aggressive conduct towards her. He refused as he maintained it was Ms Wade who owed him an apology for her conduct. Frustrated, he said to Mr Burchell "if we weren't in this place I'd knock you down Grant. I've been in the real world. It's about time you got out there and experienced it". THE EVIDENCE 7 The applicant gave affidavit and oral evidence in the proceedings. His evidence was that he commenced employment with the respondent as a part-time telemarketer on 4 May 2004. Upon commencing full-time employment on 10 August 2004, he was responsible for telemarketing, after sales marketing and customer support in addition to supervising five staff. 8 The applicant deposed that on 1 September 2005 he received a payslip stating he had been paid $530.02. A few days later he realised that he had been underpaid. On 5 September 2005 he reported the matter to Ms Wade, the Office Manager, who subsequently advised him the underpayment would be attended to in the following week's pay run. 9 On 8 September 2005, Ms Wade gave the applicant a payslip stating he had been paid $534.59. The applicant claimed the correct amount should have been $556.78. Upon raising the matter with Ms Wade, she invited him to meet in her office shortly thereafter to discuss the matter further. 10 According to the applicant, en route to Ms Wade's office, the storeman, Mr Paul Robbs alerted him to the fact that "Pam's firing on all cylinders today... she had a go at Michelle and near (sic) had her in tears and apparently (has) had three goes at Nadine already". 11 The applicant said Ms Wade told him that she would fix the problem. He subsequently said to her words to the effect that the payslip was still not right and as he had some investments, it was important that the tax was correct. She replied with words to the effect "...it will all come out in the wash". 12 The applicant deposed he was aware how the accounting program 'Quicken Books' operates with respect to wages payments. He subsequently said to Ms Wade words to the effect "if you had done your job right in the first place this would not happen". In response, Ms Wade raised her right arm and shouted "get out of my fucking office". 13 The applicant deposed he subsequently shut Ms Wade's office door, sat down and proceeded to apologise for the conversation he had just had with her. In his view, Ms Wade expressed no further interest in his pay issues. As Ms Wade appeared agitated, he said he left to return to his own office. On the way, Mr Robb stopped him for a chat. Ms Wade then approached him and asked him in an aggressive manner whether she could talk to him. He obliged and proceeded to walk to the other side of the workshop where Ms Wade started yelling aggressively and screaming vulgar abuse towards him. He deposed she told him "(you are) only a fucking dumb telemarketer and what would (you) know about accounts and payments". 14 The applicant deposed that during this incident, he remained calm and said to her "please don't talk to me in this way and tried to discuss the issue again to no avail in regards to my pay issues". 15 Shortly thereafter, the applicant was on the phone to a customer when Ms Wade walked into his office and in a hostile manner threw two pay slips onto his desk and said "there you fucking go complaining about 20 fucking cents". According to the applicant, Ms Wade subsequently turned around in a fit of rage and walked into a wall as she left slamming the sliding glass door behind her. 16 The applicant deposed that Ms Wade proceeded to a walkway area where he said to her "Pamela, could we please talk about this?" He said Ms Wade started to yell and scream at him "to fuck off". The applicant said he wanted some answers to his unresolved pay issues and as he followed her down the stairs, she continued to yell and scream at him "to fuck off...you are a fuck wit". 17 The applicant subsequently persevered and followed Ms Wade across the workshop where on the stairs near the reception area she started yelling at him once more. He told her not to speak to him in the manner she had and Ms Wade replied she was very busy and returned to her office. During the afternoon he phoned Ms Wade to advise her the insurance phones were not being answered and to establish what he should do. During the call Ms Wade raised the earlier events and strongly advised him to forget the incident as "she does not hold grudges". The applicant deposed he believed this comment was odd because he did not believe he was the aggressor. In any event, he replied with words to the effect "that's okay with me". 18 The applicant subsequently produced a five-page Incident Report (Annexure "A" to his affidavit filed 29 December 2005) which he forwarded to the General Manager, Mr Burchell. 19 During the week commencing Monday, 12 September 2005 the applicant deposed he worked Monday, Tuesday and was sick from Wednesday to Friday inclusive. Upon his return to work on Monday, 19 September 2005, he received the following email from Mr Burchell: Hi Mick New wage structure as follows: Base wage of $550 per week Commission of $2 per job you book yourself Commission of one dollar per job other telemarketers book I expect you would spend 20 hours making calls - achieve 30 to 40 jobs or $60 to $80 Have 2 telemarketer's work 20 hours each. Expect they would achieve 60 to 70 bookings combined. Giving $60 to $70 This gives you total pay off $650 to $700 Regards 20 The applicant contacted his partner who subsequently made inquiries with "Industrial Relations" who informed her that the respondent could not advise an employee of a pay cut by email and put simply, the change to his employment arrangements should be in writing. At approximately 10.30am, Mr Burchell visited the applicant's office to inquire what he thought about the new pay deal. The following exchange took place: Burchell: What do you think about the pay deal? Applicant: What are you talking about? Burchell: The email I sent you. Applicant: Grant, it's bullshit. Burchell: You end up with more money. Applicant: I am actually behind the eight ball if I go on holidays, as there is no chance for me to get bonuses. 21 The applicant deposed he told Mr Burchell what "Industrial Relations" had said to his partner. When he subsequently told Mr Burchell that he had rights and his pay could not be cut, the following exchange then took place: Burchell: Keep using that word (rights) and I'll sack you. Applicant: Well sack me, sack me. I've got rights. 22 The applicant said that two weeks prior to his meeting with Mr Burchell on 19 September 2005, Mr Burchell discussed his performance with him and subsequently stated to him that he would never be sacked because he was a good and loyal employee. The applicant said that on that occasion Mr Burchell told him his current pay would remain, but he would have to improve his performance. The applicant's response was that his level of performance could only improve with additional staff. 23 The applicant was on sick leave from Tuesday, 20 September to Friday, 23 September 2005 inclusive. On 26 September 2005, the applicant remained unfit for work and sought a further week's leave without pay. 24 Upon his return to work on or about 5 October 2005, the applicant met with Mr Burchell who told him that he wanted him to write Ms Wade an apology. The applicant refused and stated Ms Wade owed him an apology for her conduct. Mr Burchell called him a "big boy" and said "look, Michael, staff is (sic) intimidated by you because of your size". The applicant said he was offended by Mr Burchell's comments and replied "if we weren't in this place I'd knock you down Grant. I've been in the real world. It's about time you got out there and experienced it". 25 Feeling frustrated and realising that he had made an inappropriate comment, the applicant claims he immediately apologised to Mr Burchell and he "reluctantly shook my hand". Shortly thereafter, the following exchange took place: Applicant: I can't handle this. I'm going to have to take some stress leave. Burchell: That says it all. Ah, well, I'll just put in a claim for workers compensation. 26 Later that day, the applicant spoke to the ACTU concerning the bullying and harassment he believed had been levelled against him at work. The ACTU advised him to see a doctor and obtain a WorkCover medical certificate. He visited Dr Coltheart who subsequently diagnosed "stress reaction due to abuse at work" and certified him unfit for work from 5 October to 5 November 2005 inclusive. The applicant advised Mr Burchell by email that he would be off work until early November 2005. He deposed Mr Burchell "receipted this email at 4.31pm on 5 October 2005". It was the applicant's evidence he believed he was on workers' compensation from 5 October 2005. On 10 October 2005, the applicant received an Employment Separation Certificate (set out under Annexure "D" to his affidavit filed on 29 November 2005) stating he had been terminated on 4 October 2005 for misconduct, "Approached staff in a threatening manner. Threatened staff with violence." 27 In cross-examination, the applicant recalled that Ms Kate Carr contacted him while he was on workers compensation: ... to tell me what was going on. There was an email floating around that I'd been sacked. I was under the impression I was on WorkCover and she phoned to tell me, on the Thursday I think it was, that "There's an email floating around, you're no longer with the company." I said, "What, I'm on workers comp." Then she phoned me on the Friday to tell me that Ms Wade opened my mail and was making ridicule of me around the office and that she'd sent my termination certificate out in the mail on the Friday. 28 It was the applicant's evidence that he applied for leave without pay at the end of September 2005 because he was too embarrassed to tell the doctor his illness was work related and he felt "self guilt" that he was suffering from depression. He stated "you've got no idea how hard it is to justify to yourself to have some time off and ask for money with depression". 29 The applicant stated he initially had no intention of asking the doctor for a WorkCover certificate, despite feeling ill. He said in July 2005 his role as supervisor included responsibility for handling customer complaints. Unhappy and irate customers were abusing him and other telemarketing staff would refer customer complaints to him. He said he felt "like a shit magnet". 30 It was the applicant's evidence that during his meeting with Mr Burchell on 19 September 2005, he told him about the earlier incident involving Ms Wade and also the fact that he was "getting really stressed" because the work environment was unsafe with little regard to occupational health and safety. He deposed that he had recorded his health and safety concerns, including those related to chemical safety and advised WorkCover. 31 With reference to Mr Burchell's email dated 19 September 2005, the applicant could not recall any prior discussions with Mr Burchell concerning his rate of pay and stated he only received his most recent pay rise in August. He denied the purpose of Mr Burchell's email was to address his lack of productivity. The applicant said that some two weeks prior to 19 September 2005, Mr Burchell said to him: Michael I wish I had 100 employees like you, you come to work through rain, hail or shine, you do anything I ask of you and you never ask for more and more money. 32 The applicant stated he rejected Mr Burchell's pay offer set out in the email because he would be $200 per week worse off during periods of leave. He strongly denied the respondent's assertion that in not advising that he was sick due to depression he had acted dishonestly. 33 The applicant stated he took the decision not write an apology to Ms Wade because he believed he had done nothing wrong. 34 The applicant also denied Mr Burchell's contention that he told him he had formally investigated the incident and had sought his input: Well can I put it to you that as I was a part of that why wasn't I given the chance to reply or given any counselling or anything like that. To answer your question no he didn't put it to me. I asked him, like "What's going on?" He said, "I need an apology from you." To your question, if that was the point how come I wasn't offered the chance to say what had gone on? 35 The applicant stated Mr Burchell was entitled "to conduct an investigation how he wants to". However, in the applicant's view, he was entitled "to the opportunity to rebut ... what everyone else has said". 36 The applicant stated he took offence at Mr Burchell's reference to him being a "big boy" and when questioned why he found it offensive, the following exchange took place: Applicant: Because I used to get called fat cunt all through the workshop by everyone and things like that so obviously I'm going to get offended when the boss who I thought respected me, I thought I was his golden child, turns around and says something like that to me. Mr Evans: But surely the context would have been quite different than the supposed comments made? Applicant: No it wasn't, Grant was very aggressive towards me. Not aggressive physically, but talking. Mr Evans: You don't say that at all do you in your statements? Is he usually aggressive to you when he speaks to you? Applicant: No, no normally we're just buddies, well not buddies but just two blokes. Like I had a good working relationship with Mr Burchell, I had a lot of respect for him up until this day, I'd do anything. 37 In re-examination, the applicant confirmed he wrote the Incident Report (Appendix A to his affidavit) on 8 September 2005, the day of the incident. He said he tried to submit the report to Mr Burchell at the meeting on 19 September 2005 but he was not interested in receiving it. The applicant recalled the following particulars of the meeting: WILKINSON: Q. So you went to see Mr Burchell and do you remember what you said to him, did you say anything as you gave him this report? A. I think I just said, "Hey dude I've got an incident report if you want one," just something to that effect. I don't know if it was dude or boofhead or bugalug, something along that line. Q. Did he make any reply? A. No not really. Q. Did he take the incident report? A. No. Q. Did you explain what it was? A. Yes. Q. In what terms did you explain what it was? A. "Here's some paperwork on what happened between Pamela and myself." Q. You did say "Between Pamela and myself." A. Yes. Q. Did he ask you anything about what had happened between Pamela and yourself? A. No that's all. 38 Ms Pamela Wade was the respondent's first witness. She deposed she was the Office Manager and said that at approximately 11.00am on 8 September 2005, she was approached by the applicant just outside her office door who said "Pam my pay is not right". She replied "It should be, I did the adjustments for you being paid at your old pay rate last week, but I will have a look". Ms Wade said she checked the applicant's records on the computer and said "no it looks right Michael" to which he replied "no it is $22 out in the tax". 39 Ms Wade subsequently said to the applicant "I don't understand how it can be, QuickBooks calculates the tax and we have the newest upgrade, so it should be right". She said the applicant then became agitated, raised his voice and said "listen to me, you are wrong, Elizabeth and I have checked and it is the tax and it is $22". She then told the applicant that she would arrange a hardcopy of the original pay record and check it against what the applicant had been paid. Upon further investigation, she realised she had made a mistake. She had paid him the correct number of hours. However, two or three days (she couldn't recall how many) should have been paid as leave and he had not been paid his leave loading. 40 Ms Wade deposed she later said to the applicant "sorry Michael, you were underpaid but it was not your tax, I did not give you your leave loading. I will fix it now and let Margaret know so that you get paid correctly today". The applicant's response was that he got aggressive, raised his voice and said "I have checked with Elizabeth, and we agree that it is the tax". From that point on he kept repeating in a loud voice "listen to me Pam, you are wrong". 41 Ms Wade said she had become agitated and said to the applicant "Michael do not tell me how to do my job". The applicant replied "well do it right in the first place and I won't have to". Ms Wade said she then told him to "get out of my office" and indicated where the door was. He refused to leave and she closed the door to prevent further disturbance to staff. Ms Wade deposed she then said as calmly as she could "Michael it is not your tax, it is your leave loading that I did not put through and I will get Margaret to fix it". In response, the applicant yelled at her "I know it is my tax and while you may not have anything Pam, I have investments and this will effect (sic) how much tax I have to pay at the end of the financial year". 42 Ms Wade deposed she told the applicant "I will fix your pay and reprint your pay slips and bring them over to you when they are done, now leave". She said she was required to take a few deep breaths. She subsequently located the applicant and asked if she could talk to him alone. Ms Wade deposed she took him outside near the dumpster and said to him "Michael that was neither the time nor the place for that carry on and if he had a problem with the way I did my job, he needed to take it up with Grant". 43 Ms Wade said the applicant continued talking about the tax and she responded "No, Michael it is not your tax and I do not want to talk about it anymore" and she walked away. Shortly afterwards Ms Wade said she attempted to take the tension out of the situation by saying "Michael you were ripping yourself off by 20 cents, it was actually $22.20 not $22" to which he replied "I am not wrong and you owe me $22 and it is tax". Ms Wade said she repeated what she had said before and as the applicant followed her outside he kept "raving on" and "standing over her". 44 It was Ms Wade's evidence that she tried to walk away but the applicant kept following her and she eventually 'lost it' and screamed at him "fuck off out of my face", to which he yelled "you can't talk to an employee like that". Ms Wade said she then said "well piss off out of my face then". 45 Ms Wade said the applicant then said "you apologise to me" and she replied "not a chance in hell" and walked away, again yelling at him to "just get out of my face and leave me alone". 46 In cross-examination, Ms Wade said seven employees reported to her and she was initially responsible for employing the applicant in the accounts department. 47 Ms Wade denied she did not like the applicant or that he was "pushy and criticises too much". She also denied the applicant's payslip query had made her angry or agitated. Ms Wade confirmed she was insulted and became agitated when the applicant said to her "Pam you mightn't have anything but I have a lot and this is going to affect how much tax I have to pay at the end of the year." 48 Ms Wade denied that she took the opportunity as a manager to remonstrate and provoke the applicant. She denied the applicant complained to her that she was treating him like an animal. Ms Wade agreed that both the applicant and herself were upset and she herself was enraged when she told him in the middle of the factory floor to "fuck off out of my face". 49 Ms Wade said the applicant's immediate response was something along the lines of "you can't talk to me like that, you apologise". Ms Wade said she subsequently responded saying "well piss off out of my face then". Ms Wade agreed that if the applicant did not like the expletive "fuck" then he could "'piss off' out of her face". 50 Ms Wade agreed that she was in a high state of agitation and was very angry when she used the expletive phrase and stated it was the first time in her life that she had used such language. She agreed it was inappropriate for a manager to use foul language in the workplace and also agreed the applicant took offence at its use. She confirmed that she had not apologised to the applicant. Further, she did not report her behaviour to Mr Burchell because the applicant had apologised to her. 51 Despite being questioned by Mr Burchell concerning the incident, she did not tell him that she had told the applicant to "fuck off" and "piss off". She recalled her conversation with Mr Burchell lasted no longer than 30 seconds. Mr Burchell simply asked her what the argument was about rather than what actually occurred or, what was said. Ms Wade confirmed she had told Mr Burchell that the applicant had apologised to her and while she had yelled at the applicant, she did not tell him what had transpired. 52 Ms Wade subsequently admitted she had told Mr Burchell that the applicant "was basically verbally attacking her". It was a brief and casual exchange and Mr Burchell did not ask her to elaborate. She confirmed that she did not tell Mr Burchell that "we had this terrible slanging match where I told him to 'fuck off'". 53 It was Ms Wade's evidence that Mr Burchell informed her that the applicant had been dismissed on 5 October 2005. She recalled asking him what reasons to state on the Separation Certificate and confirmed that she wrote "approached staff in a threatening manner" and "threatened staff with violence" on the Separation Certificate as reasons for the applicant's dismissal. 54 Ms Wade confirmed she used the term "threatened staff with violence" on the applicant's Separation Certificate because Mr Burchell had told her, or words to the effect, that the applicant was going to punch him. 55 In re-examination, Ms Wade confirmed that the applicant's "aggressive and standoverish" behaviour on 8 September 2005 was in her opinion an isolated incident. Ms Wade also confirmed that Mr Burchell had told her the gist of what he wanted her to state under the "reasons for dismissal" section of the Separation Certificate. 56 Ms Kathryn Carr deposed she believed the applicant thought his job was in jeopardy on or about 8 September 2005 as his job had been reduced to telemarketing and Ms Wade was "stealing all his staff". He told her that he could do the Office Manager's job better than her and he would like to get rid of her. 57 With regard to the "incident", Ms Carr deposed she heard the applicant and Ms Wade talking in her office but could not hear what was said as the door was closed. 58 Following his dismissal, the applicant continually phoned her to find out what was happening at work. She deposed he attempted to elicit support from other staff to "get rid of Pam". The applicant had made a number of threats against her on the phone. 59 Ms Carr deposed that when the applicant attended work on 26 September 2005, he phoned her at her desk and in an agitated state said "this was it" and left. Later that day, Mr Burchell circulated an email stating the applicant was no longer employed by the respondent. 60 Ms Carr deposed that the applicant had told her on two separate occasions that he had threatened Mr Burchell. In her affidavit evidence she said: The first time he said " He is a F...ing C..., doesn't know how to run a company and he said he wanted to punch him ". The second incident he walked out of Grants (sic) office and he was really agitated and sweating and said he called him a " F...ing C... " again and " if he didn't have his glasses on he would take him outside and punched the living shit out of him ". He then said goodbye as he may never be back. 61 In cross-examination, Ms Carr confirmed that she suspected the applicant's job was in jeopardy because his employees had been transferred to Ms Wade. On the morning of 8 September 2005, the applicant saw her at smoko and said "Watch this" and he went upstairs. "I could hear Michael talking, Pam and Michael talking, but the door was closed". 62 Ms Carr confirmed that from her desk she could not see Ms Wade's office and she did not see the applicant walk into her office. This led to the following exchange: Q. No wait a minute. You have said in your affidavit, "He went upstairs, I could hear Pam and Michael talking but couldn't hear what was being said because the door was closed." Are you now saying you could hear what was said? A. I only heard a few words, after that I couldn't hear anything. Q. All right and what did you hear? A. Pam had his pay wrong and if she did her job properly this wouldn't have happened. Then he closed the door. Q. He closed the door. Are you absolutely certain about that, he closed the door? A. No I'm not certain. Q. Well why did you say it if you are not certain? A. Because Pam was sitting down, I presume Pam was sitting down. No I don't know, sorry. Q. So you really don't know what is going on here, do you? A. No, after that I didn't hear anything. 63 Ms Carr confirmed she did not hear the subsequent conversation between the applicant and Ms Wade on the factory floor. Ms Carr stated that she referred to the date, 26 September 2006 as the applicant's "last day" because Mr Burchell had given her that date to put in her affidavit. 64 Ms Carr said although she did not regard the applicant as a threat, she was scared and she had informed Mr Burchell of her concerns: Q. Okay, you knocked on his door and then what happened, what did you say? A. That Michael had been constantly ringing me. Grant said I should get an AVO out on him, I said I didn't want to, I don't think it would get that far. Q. So he was your boss, why go and see him anyway, why did you go and see Mr Burchell? A. Because I was scared. Q. Why didn't you go and see the police then? A. I just didn't. 65 Referring to the two occasions when she deposed the applicant had told her that he had threatened Mr Burchell, Ms Carr could not recall when these events took place. 66 In re-examination, Ms Carr confirmed Mr Burchell told her to put the dates in her affidavit as she could not recall them. 67 Ms Nadine Bass deposed that at approximately 12.10pm on 8 September 2005 she was sitting in the outdoor lunch area with Ms Michelle Seisenbacher and Mr Donald Boyce when she heard the applicant yelling something and then saw Ms Wade walk past the door to the factory yelling "Michael go away and leave me alone, go back to work". She said the applicant was walking behind Ms Wade yelling "you're treating me like an animal now, I want an apology". She said the applicant then turned to her and said "did you see that?" to which she replied "I don't want to be involved Michael". She said the applicant was shaking with anger. 68 Ms Bass said after her lunch break she returned to her desk when the applicant phoned her on her direct line and said "I'm going to take this further, Nadine, I know that we haven't got on well in the past but would you back me up?" Ms Bass said she replied "Michael I don't really know what's going on with you and Pam but I really don't want to be involved". She said the applicant continued asking her to help him and became frustrated because she refused. 69 In cross-examination, Ms Bass stated she had been working for Ms Wade for approximately 15 months. She confirmed the exchange between the applicant and Ms Wade as deposed took place: Q. You say then Michael was walking behind her yelling, "You're treating me like an animal, now I want an apology." Are you absolutely certain you heard those words? A. 100 per cent. Q. So if Ms Wade completely denies it, that such words were said in her presence you would still say that you are telling the truth? A. Absolutely. Q. Those words were said quite clearly? A. And loudly. 70 Ms Natalie Schofield deposed she recalled the events of 8 September 2005 well. At approximately 10.00am, the applicant came into Ms Wade's office and sat down to talk to her. She said Ms Wade's office door is right next to her desk and because the applicant had not shut the door, she could hear just about everything that was said. 71 Despite taking a few phone calls at the time, Ms Schofield believed she could fairly accurately recall what was said between the applicant and Ms Wade. The applicant said words to the effect "Pam I want to talk about this pay that I was underpaid on". She said Pam responded with "I don't know what you're talking about but show me what the problem is". She said the applicant then proceeded to explain the problem and she heard Pam say "I know what the problem is, leave it with me and I'll fix the problem on your next pay" to which the applicant replied "no Pam, I know what happened and I'll show you how to fix it". Ms Wade then said "no Michael, processing the pays is my job let me do my job and I'll let you do yours". 72 Ms Schofield recalled the applicant then clearly stated in a sarcastic tone of voice "well maybe if you did it right in the first place we wouldn't be in this situation". She said she was shocked by what she heard the applicant say and turned around to see what was going on. She noticed the shocked, upset expression on Ms Wade's face and recalled her saying "excuse me" before promptly marching around her desk to shut the door. She subsequently heard an argument taking place but could not hear exactly what was being said as the door muffled the sound. 73 Ms Schofield said the argument continued for about five minutes and then Ms Wade and the applicant left her office to go downstairs. At the landing she heard Ms Wade say "Michael this conversation is over. I don't want the hear about it again". She said the applicant then tried to argue the point and the two of them went downstairs. As she could no longer hear what was being discussed, she thought nothing of it and returned to her work. 74 Ms Schofield continued that shortly after the argument, Ms Carr and Ms Bass received a phone call from the applicant asking "if they would back him up against this thing from Pam". 75 On 5 October 2005, Ms Schofield deposed Mr Burchell sent an email to staff announcing the applicant was no longer employed and if staff had any questions concerning this matter, they should discuss their concerns with Ms Wade or himself. 76 In cross-examination, Ms Schofield recalled that in her opinion, the applicant called on Ms Wade at around 10.00am on 8 September 2005. As she was on the telephone and only heard part of the conversation, she could not recall with precision what was actually said. Ms Schofield agreed that her account of the story concerning what transpired on the day was different to Ms Wade's. 77 Mr Grant Burchell deposed that he had been employed by the family company as Operations Manager for the past seven years and managed the day to day operations comprising about 150 national franchise operators. He also managed approximately 15 employees at the head office in Cardiff, including the applicant who had been employed for approximately 15 months. The applicant was initially employed as a telemarketer and later promoted to a supervisory position. 78 Mr Burchell said that on 19 September 2005, he was discussing a revised wage offer with the applicant when he advised him of an incident that had occurred on or about 8 September between Ms Wade and himself. The applicant told him that the incident involved his weekly wage payment and he said to him "Pam got my fucking pay wrong. She gave me an inaccurate fucking pay slip. When I went to consult her about it she told me to 'fuck off'". The applicant told him the "wrong thing" was always being done to him by Ms Wade who had walked up to him in the past and thrown his pay slips on the desk and said "there's your fucking pay slip, you don't deserve it". 79 Mr Burchell deposed that directly after this conversation the applicant said that he had family issues that he had to resolve and needed to take a week off as he was feeling stressed. This would give him time to sort out the problems with his wife at home. Mr Burchell agreed that he should take the week off as annual leave but the applicant said that he wanted to take leave without pay. He subsequently agreed and thought the applicant would return to work on or about Monday, 26 September 2005. 80 Mr Burchell said he found the issue regarding Ms Wade very strange as she was a very professional person who could stand up for herself and he had never heard her abuse other staff. He said the applicant had made an observation in the past regarding Ms Wade's behaviour and he believed the applicant did not get along with her. He deposed Ms Wade had not raised any issues concerning the applicant with him prior to this incident. 81 In response to his concerns in relation to the incident, Mr Burchell made some inquiries amongst the staff and it appeared from comments made by those employees, all women, that they felt intimidated by the way the applicant had behaved and spoken to Ms Wade. Mr Burchell deposed Ms Wade had said to him she told Michael to "fuck off" as he had abused her for a period of about 10 minutes. 82 Mr Burchell said that following his return to work on 4 October 2005, the applicant came into his office for a discussion. They talked about the applicant's role in telemarketing and how it was going. Mr Burchell took the opportunity to discuss the incident with Ms Wade and advised the applicant that he had made enquiries within the office. Mr Burchell said he advised the applicant that he believed that the office employees were intimidated by him and the way he had behaved and suggested he should apologise to them. He said the applicant got angry and said "I am not going to apologise as it should be Pam who apologises to me. If you make me apologise, I have got a doctor's certificate for another week's stress leave and if you make me apologise, I will use it". 83 Mr Burchell responded by saying "if that's the way you are going to deal with things, that's your choice but it's not the way that I would deal with it". He said the applicant became very hostile and "he is a big man and he can be quite intimidating". The applicant subsequently stood up on the other side of the desk and said to him "if we weren't sitting in this office right now, I would beat the fucking shit out of you". Mr Burchell said he was shocked and in fear of his safety. 84 Mr Burchell deposed the applicant returned shortly thereafter and apologised for the way he had spoken and asked "do you want me to call you next Monday?" to which he replied "no, just leave". He said the applicant left his office. Mr Burchell said he walked out of the office and saw the applicant having a cigarette. The applicant remained silent, handed over his key to the factory and walked off. Mr Burchell said he did not see the applicant again. His final pay and group certificate were sent to him on 6 October 2005. 85 It was Mr Burchell's evidence that he did not tell the applicant directly he was summarily dismissed as he believed the applicant had stepped over the line by his threat of physical violence. Moreover, Mr Burchell stated his comment to the applicant to "just leave" was acknowledged by him handing back the factory key as he had decided that he would not be coming back to work. 86 In cross-examination, Mr Burchell was shown a key and denied that key was the key to his factory. 87 Mr Burchell confirmed Ms Wade had been employed for approximately two years and during that time she had received no management related training. 88 Mr Burchell stated he became aware of what Ms Wade had said to the applicant on or about 19 September 2005, following his discussion with the applicant. He agreed inappropriate language had been used and was unaware Ms Wade had also used the words "If you don't like 'fuck off' then piss off out of my face". 89 Mr Burchell stated he became aware Ms Wade had used the words "fuck off out of my face" when he met with her on 20 September 2005. In response to a statement that it was Ms Wade's evidence that she did not tell him that she had sworn at the applicant, the following exchange occurred: Q. Well she gave evidence that she had never told you. Who is telling the truth? A. Pam told me the day after I spoke to Michael what had occurred. Now I cannot remember - she did tell me that she swore to Michael on that day. Q. Did she tell you that she said, "Fuck off out of my face" and then "If you don't like that you can piss off out of my face," did she tell you that? A. I do know that she said-- Q. Did she tell you that? A. I cannot specifically recall what she told me. Q. All right? A. I do recall that she-- Q. Just stop there for a moment. If you cannot specifically recall what she told you then that is well and good. So you don't recall her saying that. Now, if she had told you that she had said to a junior employee, one who was less senior than she is, "Fuck off out of my face," well not just said it but, in her own words, screamed it, what action would you have taken? A. I would have investigated the matter to find all circumstances. Once I found all the circumstances to the matter then I would have made a decision as to what was appropriate. Q. So did you investigate whether other employees had heard that scream of "Fuck off out of my face." A. Yes I did. Q. Tell me the names of all the employees you asked about it? A. I cannot recall all the employees I asked about it. Q. Did you ask Nadine - whatever her name is? A. Nadine Bass? Q. Bass? A. I cannot recall. Q. All right, did you ask Kate Carr? A. I cannot recall. Q. Well who do you recall, anyone? A. I recalled I asked Don Boyce. Q. M'mm, yes? A. I do recall I asked several other staff members within our office but I cannot recall which particular staff members they were. Q. What did they tell you? A. They told me that the matter was much larger than simply-- Q. Did they tell you that they had heard her say those words? A. Yes they did. Q. So it was freely heard throughout the factory, her screaming "Fuck off out of my face." A. Correct. 90 Mr Burchell confirmed he took no action to counsel Ms Wade or give her suitable training to avoid a future incident. Rather, he investigated the matter fully to establish all the circumstances and subsequently decided that the fault did not lie with Ms Wade. 91 Mr Burchell stated he conducted his investigation orally. He did not take any notes nor could he recall the names of those staff members he spoke to. He confirmed he had a long discussion with Ms Wade and was surprised that it was Ms Wade's evidence that the duration of the discussion was in the order of 30 seconds. He believed the conversation lasted about two minutes. 92 Mr Burchell said the reasons for dismissal set out in the Separation Certificate were grounded by his conversations with Ms Wade and other staff. He recalled Ms Bass had told him she had witnessed the incident. However, when it was put to him that it was Ms Bass' evidence that she didn't see the incident, he recalled it was Ms Carr who had had told him she had witnessed the incident. Mr Burchell was unaware that it was Ms Carr's evidence that she also did not see the incident. 93 Mr Burchell denied he failed to give the applicant an opportunity to explain his side of the story and recalled he only became aware of the incident when he returned to the Newcastle factory on or about 19 September 2005 and spoke to the applicant. The following exchange occurred: Q. All right and then what did he tell you, briefly? A. He advised that Pam threw the payslip on his desk, said, "There it is, you don't fucking deserve it." He said he then looked at his payslip, realised it was incorrect and then went and spoke to Pam and he said he just asked Pam to investigate the matter and that within several seconds of that Pam said she wouldn't investigate the matter, that she was right, that she shouldn't question him and to fuck off. Q. All right, and you disbelieved him? A. No I didn't make judgment at that point in time. Q. All right, when did you make judgment that Mr Moad was the one who was lying? A. After I spoke to Pam. Q. On what basis? A. I spoke to a number of other staff members. After I spoke to staff members that share the office next to Michael and asked if Pam had ever sworn at Michael. Q. You will recall that none of them could overhear the conversation. You have, no doubt, read their affidavits. None of them say they could hear the conversation. So you had her account of the conversation and his account of the conversation? A. M'mm. 94 Mr Burchell conceded he preferred Ms Wade's version of events because neither he nor those members of staff that he interviewed had previously heard her swear in front of staff. However, Mr Burchell confirmed that on occasions Ms Wade had been "short" with members of staff. 95 It was Mr Burchell's evidence that he had informed the applicant in September 2005 "what the new pay deal was" and on 19 September 2005 he discussed with the applicant how he "had come to that view". In his mind, the new pay arrangement was not final. 96 Mr Burchell confirmed the applicant commenced a period of leave without pay on 20 September 2005. When the applicant returned to work on 5 September 2005 Mr Burchell said he told the applicant employees were intimidated by him. He recalled one of those employees was Ms Schofield but he could not remember the name of the other. The following exchange occurred: Q. Now nobody has said here that he gets angry and intimidating. In fact Ms Wade told the Court she had never seen that happen before? A. Before this occasion? Q. Yes? A. No he hadn't. ... Q. You did not ask him at that stage for his side of the story, did you? A. No I didn't. Q. No you just went in there, boots and all, and said "Everybody's frightened of you," and then what did you tell him, what was the next thing you said to him? A. I said to Michael, somehow the conversation changed to the matter with Pam, and I cannot recall why. I said to Michael, "Mate you're a bigger guy. If you start yelling at people then they may be, you can be intimidating because you are a bigger guy." 97 Mr Burchell agreed he did not present the applicant with all the evidence he had during the meeting on 5 September 2005. Mr Burchell confirmed that when he asked the applicant to apologise to Ms Wade, he became distressed and agitated. In hindsight, he also agreed that rather than demand an apology, it may have been more appropriate to discuss the situation further with him. 98 It was Mr Burchell's evidence that Ms Wade, Ms Carr and Ms Schofield had told him that they felt intimidated by the applicant following the incident, but he was unaware that Ms Carr and Ms Schofield had not given any evidence "about being offended in any way". 99 Mr Burchell confirmed that he understood from his conversation with the applicant that he believed Ms Wade owed him an apology. He denied that the conversation had pushed the applicant "to a breaking point". The following exchange occurred: Q. Now, did it ever occur to you that there might be something wrong with this man? A. At that time I was too afraid to think beyond my own safety, I think. Q. Why were you afraid to think beyond your own safety? A. Because Michael had leaned over the desk, his fists were clenched, his nostrils had flared and his eyes had gone wide, which I really strongly recall, and he said, I want to beat the fucking shit out of you. And-- Q. No, that's not what you say in your affidavit. You say in your affidavit that he said, "If we weren't sitting in this office right now", you then say he said, "I would beat the fucking shit out of you", he says something different, but everybody has agreed that he said, "If we weren't sitting in this office right now". A. That is what he said, yes. Q. So I suggest to you that he gave you no indication that he was intending to hit you in the office right now. In fact he said quite the opposite, didn't he? A. That's very not the case of what actually occurred. Q. So he hit you? A. No, I'm saying that his intention was very aggressive at the time he made that statement. 100 Mr Burchell subsequently confirmed the applicant later apologised for his actions and they both shook hands. He also confirmed that following this incident he had decided that the applicant should be dismissed summarily. 101 Mr Burchell conceded he did not investigate why the applicant had made the threat nor did he know what medical condition the applicant was suffering from at the time. 102 Mr Burchell said he assumed that when he told the applicant to "just leave" he was aware that he was being terminated. The applicant's awareness was confirmed when he handed back the factory key. Mr Burchell confirmed he did not send an email to the applicant stating that he had been dismissed when he emailed employees stating the applicant "is no longer with us". He felt it was clear the applicant understood he had been terminated. 103 Mr Burchell confirmed he and Ms Wade had discussed the reasons for the applicant's dismissal but denied telling her what to state on the Employment Separation Certificate. He did not view the Certificate before it was sent to the applicant. 104 With regard to Ms Carr's evidence, Mr Burchell denied giving her any assistance to prepare her affidavit and further, he denied telling her to include specific dates as she has alleged. 105 Mr Burchell acknowledged that some staff swore their affidavits before the respondent's General Manager, Mr Paul Burchell. SUBMISSIONS For the applicant 106 It was Mr Wilkinson's submission that the applicant's dismissal was harsh, unreasonable and unjust. He submitted that the respondent summarily dismissed the applicant because it believed he had acted in an aggressive, confrontational manner towards Ms Wade and some staff. He had refused to apologise to them and had also stated to the operations manager, "If we were not in this office right now, I would beat the shit out of you". 107 Mr Wilkinson submitted that the respondent relies upon two incidents. The first incident took place on 8 September 2005 and it is the evidence of Ms Wade that the applicant complained that his pay slip was wrong and a discussion took place in which she claims that he got aggressive and raised his voice. Mr Wilkinson submitted Ms Wade did not depose to any other form of aggression other than "he raised his voice". She admits that she became agitated and that she commanded him to "get out of my office". 108 Mr Wilkinson said that apart from the accusation that he raised his voice Ms Wade makes no further claims with regard to aggression in that exchange. He submitted it was quite clear on all the evidence before the Commission that when the applicant subsequently left Ms Wade's office, that might well have been the end of the matter. However, Ms Wade, knowing that she was agitated and for no other reason than to confront the applicant, pursued him across the factory floor. She located him and proceeded to confront him regarding the accusations that he had made, which ultimately concerned her competence and she has admitted that the pay advice was incorrect. Mr Wilkinson said Ms Wade gave no evidence that during the second exchange the applicant was aggressive or threatening. 109 It was Mr Wilkinson's submission that when Ms Wade returned to her office, she was presented with an opportunity to defuse the situation. However, she elected to go across to the applicant's office to confront him yet again with a series of provocative remarks and sarcastic comments where she made an insulting remark about his work performance, which was not in question before leaving his office. 110 Mr Wilkinson submitted that during the first confrontation, the applicant was ordered out of Ms Wade's office and he left. In the second confrontation, she announced the matter closed, he followed her for a short while and when she returned to her office he did not follow her. Mr Wilkinson said for his part, at this stage the applicant had not unreasonably responded to some of the insults that had been cast upon him. However, it was at this point that Ms Wade, to use her own description, completely "lost it" when she launched into what can only be described as a vitriolic tirade, telling him to "fuck off out of my face". 111 Mr Wilkinson submitted that at this stage the applicant seems to have been remarkably restrained. He simply responded "you can't talk to an employee like that", whereupon she poured upon him the measure of her contempt when she said, "Well, in that case piss off out of my face". 112 Mr Wilkinson said it was the applicant's evidence that he wrote an Incident Report contemporaneously which he gave to Mr Paul Burchell. However, Mr Burchell was unclear whether or not he himself had actually looked at the report. It was Mr Wilkinson's submission that the respondent was certainly aware of the contents. 113 Mr Wilkinson said it was not surprising that Ms Wade had not mentioned the full details of the incident between herself and the applicant to Mr Burchell, except to discuss it in the briefest terms, a conversation lasting about 60 seconds. Mr Wilkinson noted Mr Burchell had said in evidence the conversation took somewhat longer and recalled it lasted about two minutes. 114 Mr Wilkinson submitted that it was Mr Burchell's evidence that he had carried out an investigation of the incident when he heard about it. However, no contemporaneous notes were taken during the investigation. Mr Burchell could not recall in evidence who he had interviewed, except to name two persons who gave evidence in these proceedings and they were unable to confirm that there had been any investigation of the incident as far as they were concerned. None of the witnesses could give any clear evidence of what actually happened. Mr Wilkinson said a few staff had been sitting with their backs to the offices and they heard part of the first altercation. However, they had some doubts as to what actually happened. The evidence was that one witness was so confused she had to be instructed, according to her, by Mr Burchell as to what dates she should put in her affidavit. 115 Mr Wilkinson said it was clear that Ms Wade had acted in a most provocative manner towards the applicant. She was abusive, contemptuous and insulting to him. There was no proper investigation of these events and while Mr Burchell had accepted the word of Ms Wade, it was still not clear exactly what Ms Wade had told him. There was no discussion with the applicant about the incident and he was not afforded an opportunity to put his version of events. According to Ms Wade's evidence, the incident was isolated and she could not recall any previous occasion where she had heard the applicant use abusive language or show any form of intimidation. 116 With regard to the discussion about rates of pay with Mr Burchell immediately prior to the applicant taking leave without pay, Mr Wilkinson submitted everyone involved at the time agreed that the applicant was stressed, his own belief being that he was suffering stress due to work related problems. On his return to work on 5 October 2005, there was a meeting between the applicant and Mr Burchell where without having conducted any proper investigation into the alleged incidents involving Ms Wade in September, Mr Burchell indicated to the applicant, by inference at least, that he had formed the view that his conduct was unacceptable. He confronted the applicant and told him that he wanted an apology from him. At the time, he knew the applicant had just returned from some form of stress leave when he confronted and accused him of intimidating other employees. 117 Mr Wilkinson submitted there was no evidence of intimidation. In cross-examination, Mr Burchell said there was evidence of intimidation because people who overheard what the applicant said were themselves intimidated. Mr Wilkinson said that although a number of witnesses for the respondent gave evidence, none of them was able to say they had been intimidated. Accordingly, Mr Wilkinson submitted that Mr Burchell was demanding an apology from a man who had, by his evidence become stressed because of the confrontation with Ms Wade during which he was told to "fuck off". It was obviously a heated conversation and she agreed that she had screamed at him. He was then told to apologise for something that he believed he had not done. The applicant's evidence was that he was calm and reasonable throughout. However, he admitted that he was persistent. 118 Mr Wilkinson said that after being confronted by Mr Burchell and told he was intimidating employees and, that he should apologise, it appeared that Mr Burchell envisaged some type of general apology to everyone. However, Mr Wilkinson said this was not clear as there was no evidence as to whether the apology sought was going to be a public apology or something equally humiliating to the applicant. Notwithstanding the applicant having returned from stress leave, Mr Burchell pressed the point. The applicant said he was not going to apologise and although there is disagreement as to what was actually said, the gist of it was that the applicant refused to apologise. Mr Wilkinson said Mr Burchell then pressed the point by the enigmatic statement "if that's the way you're going to deal with things, that's your choice, but it's not the way I would deal with it". 119 Mr Wilkinson submitted that Mr Burchell's resort to that type of enigmatic statement at that juncture was not the best way of settling the situation. He said that quite clearly, the applicant, a man with an unblemished record in the company who, instead of taking paid leave, was by his own evidence, so distressed by the fact of his own stress that he took leave without pay and that at this point, the applicant was driven to breaking point. 120 Mr Wilkinson submitted that even driven to that point, the applicant did not respond with violence or with threats. He said words that indicated that if he were not in an employee/employer situation, he would strike the man. He made no attempt to strike him and clearly stated that he didn't intend to strike him. The applicant said as fast as his anger had arisen, it subsided and he immediately regretted the statement and apologised. Mr Wilkinson said it is a common position between the parties that he said words to the effect of "shit, mate, I shouldn't have said that, I am sorry" and extended his hand to his boss, with whom he felt he had a pretty good relationship. He deposed he actually said, "Oh shit, Grant, I'm sorry" and Mr Burchell did not deny that that was said, nor that they shook hands. 121 Mr Wilkinson said the applicant left the office at this point and the parties met again shortly thereafter. When the applicant left the office he was not warned in any way that his behaviour was unacceptable nor was told he was going to be dismissed. Mr Burchell told the Commission that when he said in reply to the applicant's statement, "shall I call you next Monday?", "No, just leave" he thought that they both understood that the applicant had been dismissed. 122 Mr Wilkinson submitted that the applicant did not understand that he had been dismissed by the respondent and submitted that reliance upon him handing back keys was not sufficient in any way to indicate that the applicant thought he was going to be dismissed. In fact the applicant retained a set of keys and denies that he handed any key back to Mr Burchell. 123 Mr Wilkinson further submitted that with respect to the incident involving Ms Wade, the applicant's dismissal was unjust. He had no opportunity to defend her version of events against his and he was thereby denied natural justice. Mr Wilkinson submitted that Mr Burchell's reliance on the word of one very acrimonious party to the altercation, who never mentioned to him the abuse and derision that she had heaped upon the applicant was harsh, in that the applicant claims that what he was accused of in the first incident did not take place. 124 It was Mr Wilkinson's submission that the applicant at no stage threatened or intimidated Ms Wade and he claimed that if there was any unintentional intimidation, it was insufficient to warrant summary dismissal. He also claimed that dismissal in terms of that first incident was unreasonable because there was no investigation. In respect of the incident with Mr Burchell, the applicant claims that was unjust as he was never allowed to explain the stress he was under and what actually caused his outburst. 125 Mr Wilkinson said the applicant had no opportunity to defend himself, no opportunity to bring in mitigating factors and was denied natural justice. On the evidence, this was the first time that he had acted in any way contrary to the obligations of a good employee. He had received no warning or counselling despite the fact that he had apologised immediately after the incident . 126 Mr Wilkinson submitted that the onus of proving misconduct leading to summary dismissal lies upon the employer and cited Knott v Carlton United Breweries Limited (1958) 13 IIB 212 where Gamble J said: Turning now to the composite expression 'serious and wilful misconduct', it is impossible to frame an exhaustive definition of the meaning of the phrase. We have to consider that it's possible to describe with reasonable particularity certain elements or facets of the meaning. Now, the basic word is, of course, misconduct. The word is not apt to describe a breach of contract and is more appropriate to describe generally some reprehensible or culpable activity. However, it is quite clear on analysis that the word used in the Act solely in relation to conduct which constitutes a breach of contract of service. It is clear therefore that the word is intended to describe a particular type of breach of contract, namely, one which according to the current and generally accepted moral standards of the community would be regarded as reprehensible and deserving of censure in the circumstances With reference to the terms " serious and wilful" His Honour states: This misconduct if further particularised by the addition of the two objectives - as Lord Robertson calls them - two epithets - "serious and wilful". The word "serious" is the measuring rod for the gravity of the misconduct. All the elements of the conduct called in question must be taken into account including the probable effect of the conduct upon the safety and well-being of the employer's business, his property and other employees, the fact that the conduct is in breach of a regulation, an award or determination and also the subjective elements such as the knowledge and skills which the worker ought reasonably to have possessed and the motivation and general state of mind of the worker at the time. The word "wilful" has many shades of meaning varying from perverse and stubborn to "done or suffered of his own free will or choice". (See Shorter Oxford English Dictionary, 3rd Edition). In the context in which the word is used in the Act and particularly having regard to the fact that it is part of a clause which is to operate as a forfeiture of rights and as a disqualification the word in our view postulates existence of some reasonable area of freedom of choice. The Oxford Dictionary meaning "done or suffered of one's own free will and choice" seems to us to express the essential character of the word "wilful" as it is used in this section of the Act." 127 Mr Wilkinson submitted there was no evidence that the respondent assessed the "motivation and general state of mind of the worker at the time" of the incidents. He also referred to His Honour's reference to the word "wilful" where he states, "wilful has many shades of meaning, varying from 'perverse and stubborn' to 'done or suffered of his own free will or choice'". 128 Mr Wilkinson also cited Howarth and Linfox Armaguard Pty Limited, [2005] NSWIRComm 1170 where Cambridge C provided a general definition where summary dismissal occurs: 1.Summary dismissal usually only occurs when an employer has properly established that there has been some act of gross and wilful misconduct of a nature incompatible with the continuation of employment for one moment more. Established acts of misconduct, such as theft, embezzlement, physical assault in the workplace or reckless and deliberate destruction of employees' property are examples of gross and wilful misconduct. 129 Mr Wilkinson referred to Standley and Electronics Boutique Australia Pty Limited (Matter IRC98/4516, unreported, Sams DP, 18 March 1999) where His Honour said: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee . It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. 130 Mr Wilkinson further submitted one of the reasons given in the reply to the claim was that the applicant had failed to make an apology. In that regard, in North v Television Corporation Limited (1976) 11 ALR 599 Franki J said: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct. 131 Mr Wilkinson referred to Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 where the Master of the Rolls stated that to justify summary dismissal, a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions: I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is `wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions. 132 Further, Mr Wilkinson cited the judgement of McHugh J (sic) in Concut Pty Ltd v Worrell and Anor (2000) 101 IR 160: [c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 133 Mr Wilkinson referred to the possibility of mitigating circumstances and cited Paris and Bankstown City Council (1999) 93 IR 209 where McLeay C said: It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is as unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct. 134 It was also Mr Wilkinson's submission that the matters were not properly investigated. He said that despite the fact that Mr Burchell was there on the second occasion, as a party to the incident, he was the person who had a conversation that got out of hand and that whilst Mr Burchell does not see it that way, a fair minded observer or reasonable person most certainly would have looked at it and thought the matter needed proper investigation. Mr Wilkinson further cited Antonakopoulos and State Bank (1999) 91 IR 385 where the Full Bench said at 389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures, which are unfair, and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 135 Mr Wilkinson also cited Buckman v Burdekin (1998) 85 IR 415, where the Full Bench said: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. 136 Mr Wilkinson concluded his submissions by saying the respondent had brought about both the incidents that led to the accusations and the reasons for dismissal of the applicant by incompetent company management. He added that the applicant sought compensation under section 89(5) of the Act and submitted that the Commission should find that this matter was a serious breach of the respondent's obligations and accordingly, maximum compensation should be awarded. In that regard, he confirmed the applicants rate of pay immediately prior to his dismissal was in the order of $650 per week. For the respondent 137 Mr Evans submitted that a lot of what was said during the hearing and in evidence was not substantiated in any way. He said the applicant had the opportunity to call evidence from other persons who may have abused him or WorkCover "who may have told him this or that", but he did not do anything about it. 138 Mr Evans referred specifically to the incidents, the applicant's comments regarding WorkCover and the state of the factory and said the applicant and his representatives had the opportunity to call evidence from the WorkCover Inspector, but did not do so. Mr Evans said that throughout the applicant's evidence there were a significant number of unsupported comments and statements, which were simply unsubstantiated assertions. It was Mr Evans' submission "that Michael Moad, the applicant in this case, is a liar, a calculated liar who was and continues to look for an easy dollar". 139 Mr Evans questioned the fact that on 21 September 2005, the applicant was put on sick leave for two days, yet apart from one other day, did not return to work until 4 October 2005. He said this was sick leave, not workers' compensation and because the applicant requested that he not be paid, it was unpaid sick leave. Mr Evans questioned why, if the applicant was suffering from work related stress or humiliation arising from the incident with Ms Wade, he did not claim workers' compensation from the start and suggested the reason for this was that it was clearly untrue. 140 Mr Evans said that on the applicant's own evidence his elevated stress started occurring in July 2005 when he thought the factory was unsafe and reported the respondent to WorkCover for investigation. WorkCover subsequently found nothing wrong. Mr Evans said there was nothing in the applicant's evidence that said he was called "a big guy", nothing about him being abused, nothing about the company taking a "profound" case against him. He could not explain in his evidence why he did nothing about it at that time nor could he explain why he did not take sick leave or go to a doctor, he simply said he was "too embarrassed" to go to a doctor. Mr Evans submitted that on the applicant's own evidence, his own doctor did not know what had caused the problem and did not state it was stress. Mr Evans said the respondent was aware of one WorkCover certificate that had work related stress or stress reaction. He said it was interesting that the previous doctor's certificate stated "stress reaction" and not "work related stress". In any event, it was not a workers' compensation certificate but rather, simply a sick leave certificate giving him two days off and it had "stress reaction" written on it. 141 Mr Evans submitted the matters relating to stress and workers' compensation were a means of "making an easy dollar" and said that the respondent viewed this application in the same way. He questioned why, if the applicant's claim was a genuine Workers' Compensation matter, the applicant did not file an application under s 92 of the Act which deals with the protection of injured workers, where the primary remedy is reinstatement to the former position without disadvantage. It was Mr Evans' submission that there was no s 92 application because the only remedy the applicant sought was monetary compensation. 142 Mr Evans submitted that the applicant did not file a s 92 application because he did not have a legitimate workers' compensation claim. He said "if the applicant's condition was work related stress, it has been going on for a long time and he never gave any evidence of whether or not he was treated successfully". 143 Mr Evans queried who had abused the applicant to cause him to go on workers' compensation. He said it was certainly not Mr Burchell and certainly not Ms Wade who had a disagreement with him some weeks beforehand. Mr Evans pointed out there was no dispute about what was said between the applicant and Ms Wade and, Mr Burchell. The language used was also not in dispute. He also submitted that none of the employees who had "observed his tantrums and his overall reaction and his profanity" would support him. Mr Evans drew an inference that the other employees he claimed to be friends with would not support him despite the fact the applicant had phoned some of them continuously to get their support. Mr Evans asked if they were friends and knew he was right, why then did they turn against him? 144 Mr Evans submitted that when the ACTU advised the applicant to go to the doctor and go off on stress leave, "he forgot that he was supposedly already on stress leave and already supposedly on workers' compensation". The applicant had already told Mr Burchell that he had a doctor's certificate and he would use it. This was not contested at all by Mr Burchell. 145 Mr Evans submitted the major thrust of the applicant's affidavit evidence concerned his resort to profanity. He used it continuously in his affidavit of 28 November 2005 and then again in his rehashed affidavit dated 15 February 2006. Mr Evans said that while Ms Wade had used profane language once and once only which she had admitted to, the applicant said "everyone used it" but brought no evidence to support his comment and not one of the witnesses had endorsed that view. No witness gave evidence that profane language was continually used in the factory itself or in the office or anywhere else. It was out of character. 146 Mr Evans said only the applicant used profane language and apart from the one statement by Ms Wade, "it was all in the applicant's mind". Mr Evans pointed out that the applicant had the opportunity to rebut all the witness statements, but he merely rehashed his first affidavit with more profanity. He reiterated his submission that the applicant's case was a fabrication and said that when questioned about the rebuttal or lack of rebuttal of those statements, the applicant could only reply that it was based on advice from his legal representatives. 147 It was Mr Evans' submission that the fabrication of the applicant's case commenced when he filed the s 84 application for relief and stated his position with the respondent was direct marketing manager or telemarketing supervisor. Mr Evans said the applicant was an overseer who did some supervisory work. He was sent an email by Mr Burchell arising out of a discussion held about his work performance and that was the basis for the email sent to him about his wages. The applicant was to be put back to telemarketing because the company believed he would be better off in that job rather than a supervisory or overseeing role. Mr Evans asked the Commission to reflect upon the evidence where the respondent says he was put back because he was not performing and by making his wages more incentive based, management believed his performance would improve. 148 Mr Evans submitted that the applicant "terminated his own employment" when he stood over the manager Mr Burchell, and in his own words said "if you weren't sitting in your own office right now, I would beat the fucking shit out of you". Mr Evans said as this exchange took place within an employer/employee relationship, not outside the gates, not after work and not in a bar room, but in the workplace, he breached his own contract of employment irreparably and he breached the trust and confidence of his employer. 149 Mr Evans questioned why the applicant overreacted and said he believed it was because he had been "caught out". He said the applicant's reaction was that he became stressed because he was asked to apologise to Ms Wade. 150 Mr Evans acknowledged that whilst policies and procedures are helpful as a management tool and as instruments for the good running of a business, they are not mandatory. He said that an investigation was warranted in most cases, particularly where serious misconduct or misconduct was alleged. Rhetorically, he asked "is an investigation going to stop the fact that an employee leans over a desk to his manager and threatens violence and then says, hey, but you didn't investigate what happened?". In Mr Evans' submission, Mr Burchell investigated the incident at the time because he was the recipient of the applicant's threat of violence and that was the reason the applicant was terminated despite what was written on the separation certificate. Mr Evans reiterated the separation certificate was not completed by Mr Burchell and whilst he did talk to Ms Wade, he did not instruct her what to put on that form. Rather Mr Burchell simply told her what had occurred and she used her own words. 151 In relation to the keys, Mr Evans submitted that the applicant did give back the factory key and by giving back the key, he acknowledged that he would not be coming back. 152 In relation to Mr Wilkinson's submission regarding inconsistency amongst the witnesses for the respondent, Mr Evans agreed there was some inconsistency, but in terms of the evidence, there was greater consistency with their written statements than their oral evidence. He submitted that when they were asked "if they were making it up as they go" and "what they were told to say by Mr Burchell" the clear response was that they were told simply to tell the truth. 153 In response to the applicant's allegation that he was not given due process nor an opportunity to respond, Mr Evans submitted that he was. He referred to what the applicant said in his evidence regarding the Incident Report that he emailed to Mr Paul Burchell, the owner of the business and the fact that he received an email receipt. Accordingly, the report was certainly received by the respondent. 154 Mr Evans submitted that the Commission should reject the evidence of the applicant as unreliable. His statements and evidence were little more than fabrication. In regard to the contention that the applicant's dismissal was harsh, unjust and unreasonable, Mr Evans asked when is it harsh for a senior manager of a company to terminate an employee who threatens violence and has glibly talked about it in the past? When is it unjust that the employee was not given an opportunity to defend the fact that he had threatened the manager with violence? When is it unreasonable for a manager in the face of a threat of violence to not investigate the same and prove misconduct? Mr Evans said the applicant's misconduct and threats were staring him in the face and Mr Burchell was aware of the circumstances and could and did act on that basis. 155 Mr Evans submitted that the lack of evidence adduced by the applicant "are no more than a flight of fancy" and referred the Commission to Jones v Dunkel (1958-1959) 101 CLR 298. He said the applicant could have summonsed a WorkCover inspector because he said what led to his stress right from the very start was that the factory premises were unsafe. He had made a complaint to WorkCover but he produced no evidence. 156 Mr Evans said that one of the more fanciful comments the applicant had made was that an employee was taken away in an ambulance possibly suffering from the dry cleaning chemicals stored under the office. Again, no evidence was brought from WorkCover. Mr Evans said the applicant alleged he was commonly abused in the workplace by people, one of them being the storeperson, but again he did not summons them. He said that the applicant's lack of evidence or supporting evidence for any of the matters that he has alleged or has said to have occurred is striking. Mr Evans submitted the fact that the applicant makes an allegation does not make it a fact or a truth and the evidence is insufficient to support the allegation of unfair dismissal. 157 Mr Evans referred the Commission to a book written by Mark Baragwanath published by The Law Book Company in 1999, titled "Unfair dismissals in New South Wales", and in particular section 9, page 163, "Breach of Confidence" where he states: At common law, a term is implied in all contracts of employment to the effect that "neither party will, without reasonable and proper excuse, engage in conduct that is calculated and likely to destroy or seriously damage the relationship of trust and confidence" between the employer and employee. The implied term highlights the special relationship between employers and their employees. The relationship is one of trust and confidence. The duty of trust and confidence may be breached in several ways. These can include, inter alia: making derogatory statements about the employer; working elsewhere while employed by the employer; and misusing the employer's confidential information. At page 168 the author continues: In determining whether an employee's conduct has destroyed or seriously damaged the employment relationship, the Commission appears to distinguish making derogatory comments to co-workers from making derogatory comments to third parties. The latter generally appears to be seen as more serious than the former. As a result, where comments are made to co-workers, unless the comments are extremely derisive, the Commission will usually require warnings prior to dismissal. Where, on the other hand, the worker makes derogatory comments about the employer to (or in front of) a third party, the Commission will be less likely to intervene in the dismissal, even if a warning has been given. Mr Evans referred to the cases of Gorman v Players Biscuit Pty Limited (unreported, IRC 1313 of 1993, Shields CC) and Payne and Newcastle Building Society (unreported, IRC 341 of 1993, McKenna C) cited in that publication. In Payne , McKenna C noted: Whatever his health or state of mind at the time, if an employee acts in a manner which he knows, or reasonably should know, would cause damage to the business of his employer, unquestionably he could have breached his contract of employment to that extent. Conduct by an employee which in respect to important matters is incompatible with fulfilment of his duties for his employer or which is destructive of the necessary confidence between employer and employee, constitutes grounds for dismissal: Blythe Chemicals Limited and Bushnell (1933) 49 CLR 66 at 81. 158 Mr Evans submitted that the act or threat of violence, the act of standing up over the employer who was sitting at his desk and threatening physical violence, is more than sufficient grounds to terminate the employment for wilful and serious misconduct. He submitted that no warning and/or investigation was necessary because "one could really look very long and hard at this thing and still come to the same conclusion". Mr Evans submitted that threatening your employer with physical violence breached the relationship of trust and confidence and, therefore the contract of employment. Mr Evans said there was not a lot of case history regarding such threats as most related to physical violence. However, the Commission and Courts have ruled extensively on what does and does not constitute misconduct. He posed the question that if the applicant's threats of violence are deemed insufficient to breach the contract of employment, then what would? 159 Mr Evans' submission in relation to the applicant's claim for maximum compensation was that the applicant had not been disadvantaged as he had been on workers' compensation since his dismissal. Mr Evans said there has been no loss of earnings by the employee in any way, shape or form. He submitted that the applicant had been paid regularly and continuously and, these payment will continue while he is on workers' compensation. 160 Mr Evans' submitted, however, that if the Commission finds that the applicant has been unfairly dismissed, the primary remedy should be in terms of s92, that the applicant be reinstated to his former position. Mr Evans said he had had discussions with the respondent and there was no animosity towards the applicant on their part. He said the respondent's size would not cause any conflict. Mr Evans said that he was unsure what impact monetary compensation would have on his workers' compensation payments and submitted that this is a point to be taken into consideration. 161 In response to Mr Wilkinson's submissions, Mr Evans contended if a threat of physical violence to an employer does not repudiate the contract of employment, then "somebody has it wrong". He said that in terms of s 88 of the Act, the respondent believes that circumstances of the termination were sufficient to satisfy the matters to be taken into consideration by the Commission in determining the applicant's claim. In reply 162 Mr Wilkinson submitted that Mr Evans went to considerable lengths to talk about stress. He said this is not a case about stress; it is about two incidents and wrongful dismissal. It has nothing to do with whether the applicant alerted WorkCover to anything. It is simply a matter of whether the dismissal comes within s 84 of the Act or whether he was validly summarily dismissed. The case has nothing to do with WorkCover. Mr Wilkinson said in relation to the Jones v Dunkel reference, the Commission should realise that case merely states that if you do not call evidence that is relevant to the matter, it is assumed or can be inferred that that evidence will not be of assistance. He said the reason why the WorkCover Authority was not called was because there was no assistance that it could have given the Commission as to whether or not an incident took place. He said that in relation to the critical incident, there were only two people present, so nobody else could have assisted in that regard. 163 Mr Wilkinson further submitted that in relation to the email to Mr Paul Burchell, there was no evidence that he carried out any investigation or took a part in this matter at all. Accordingly, is the Commission to assume that Mr Paul Burchell deliberately sat on this incident report or that he simply glossed over it. There was no evidence concerning Mr Paul Burchell's investigation if there was one and in Mr Wilkinson's submission, that makes the employer's case doubly doubtful insofar as Mr Evans has acknowledged that the respondent was aware of the applicant's point of view, but made no attempt to discuss the matter further. The operations manager of the company did not seem to know anything about the incident report which clearly highlights a gross failure of communication within the company. 164 In response to Mr Evans' submissions concerning breach of confidence, Mr Wilkinson submitted that has nothing to do with this case and the authorities that Mr Evans referred to do not deal with the subject matter of this case at all. 165 Regarding Mr Evans submission that reinstatement pursuant to s 92 of the Act would be a suitable outcome in this matter, Mr Wilkinson submitted that this is probably the least likely case for reinstatement, in view of the fact that the company's own evidence was that staff were intimidated by the applicant and clearly there has been a complete breakdown in the employment relationship. 166 In relation to whether the applicant did or did not repudiate his contract of employment by his actions that day, Mr Wilkinson submitted that clearly this is quite crucial to this issue and said the authorities he had cited suggest that you simply cannot look at the incident and say this happened, without looking at why it happened. Clearly, there was a moment where like Ms Wade, he lost it. Mr Wilkinson said she admitted it and she wasn't sacked. The applicant lost it for a moment. If he had wanted to, he could have struck Mr Burchell but he did not and within seconds, he had apologised. The applicant realised that something had gone wrong. Mr Wilkinson submitted this happens every day in every workplace. People lose their tempers and in a heated moment sometimes say, "if it weren't for the fact that you're my boss", or words to that effect, "I'd hit you". This is not a repudiation of the contract at all. 167 With regard to Mr Evans' submissions on the use of profanities, including profanities contained in his affidavits, Mr Wilkinson said the applicant simply reported certain things. In his submissions, Mr Evans asked where were all these workers to support the applicant and inferred the applicant must be guilty because there are no workers here to support him. Mr Wilkinson submitted that that is not a sustainable argument and in relation to the altercation with Ms Wade, Mr Wilkinson said that whichever way anybody looks at this matter, the applicant went to that office and he left that office. It takes two people to make an altercation and if Ms Wade had considered the matter as a manager should she would have concluded the situation was out of hand. There was no need for what she did and there was no need to follow him down onto the factory floor or take the pay slips across to his office. CONSIDERATION 168 The applicant has vigorously challenged the respondent's decision to dismiss him summarily. For whatever reason, the applicant sought to pursue and ground his claim pursuant under s84 of the Act, rather than seek a remedy under Part 7 - Protection of Injured Employees. In this matter, the onus rests with the applicant to establish that the Commission's intervention is warranted: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 169 In determining whether the applicant's actions warranted summary dismissal, the Commission is required to consider the following issues: i) whether the applicant's misconduct alleged by the respondent has been proven; ii) whether the seriousness of the applicant's misconduct justified his dismissal; iii) whether the applicant's misconduct amounted to a fundamental breach of the terms of his employment policy; and iv) whether the respondent afforded the applicant procedural fairness. Whether the misconduct alleged has been proven? 170 The burden of proof in cases of serious misconduct justifying summary dismissal lies with the employer: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White [No3] (1990) 35 IR 70. 171 The applicant has vigorously challenged the respondent's decision to dismiss him summarily on a number of grounds: First, he contends that apart from the accusation that he raised his voice, Ms Wade made no further claims against him concerning any other forms of aggression. Second, he contended Ms Wade pursued him across the factory floor and confronted him regarding the accusations that he had made concerning his pay slips. Third, there was no evidence from Ms Wade at this stage that the applicant was aggressive or threatening towards her. Rather, she made a series of provocative and sarcastic remarks to him, including an insulting remark about his work performance which was not in question. Shortly thereafter, Ms Wade completely " lost it ", launched into a vitriolic tirade telling him to " fuck off out of my face ". He objected to her language objection and subsequently she uttered " Well, in that case piss off out of my face ". Fourth, the respondent had ignored a detailed Incident Report forwarded to Mr Paul Burchell. Fifth, on the evidence, Ms Wade had not given full and proper details of the incident to Mr Burchell, other than during a brief 60 second discussion, which on the evidence, appears to form the substantive basis of the respondent's "full" investigation Sixth, in the absence of a proper investigation to elicit all the facts, the applicant was pressured by Mr Burchell to apologise to Ms Wade and other staff when he believed she should apologise to him for her behaviour. In his stressed state, the applicant freely admitted he made a threatening statement to Mr Burchell and explained that as fast as his anger rose, it subsided. He immediately regretted his actions, apologised and shook hands with Mr Burchell. Seventh, he was denied natural justice and not afforded an opportunity to defend Ms Wade's version of events against his own. 172 In this matter, with the exception of two employees and a short conversation with Ms Wade, Mr Burchell could not readily recall who he spoke to during his investigation. In the absence of a proper investigation corroborated by contemporaneous notes, it is difficult for the respondent to ground that the conduct alleged actually took place. Whether the seriousness of the misconduct justified dismissal? 173 The Commission is required to determine whether or not the applicant's dismissal was harsh as well as whether it was disproportionate to the gravity of the alleged misconduct. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to bee too harsh a consequence. (Our italics) 174 The applicant received no warning of his dismissal. There was no termination letter. He received a separation certificate which set out the reasons for his summary dismissal stating "...alleged intimidation of staff members and threatening staff with violence". In submissions, Mr Evans said the respondent's case was that it did not rely on the reasons stated in the separation certificate as grounds for the summary dismissal of the applicant. Rather, the Operations Manager, who made the decision after a full investigation, relied solely on the applicant's threat of violence put to him during a meeting in his office on 5 October 2005. Mr Burchell, the "receiver" of the alleged threat of violence from the applicant also had carriage of the investigation. 175 Misconduct that may warrant summary dismissal includes, but is not limited to, wilful misconduct; wilful disobedience of a lawful direction; neglect of duty; intoxication; conduct that causes imminent and serious risk to the health or safety of a person or, the reputation, viability or profitability of the employer's business; the commission of a crime in or out of the course of employment; use of objectionable language; theft and dishonesty. Shortly put, serious misconduct is generally defined as wilful conduct or deliberate behaviour of such a kind that it would be unreasonable to require the employer to continue the employment during the required notice period. 176 In exercising its statutory function under s 88 of the Act, the Commission is compelled to take into consideration all the circumstances surrounding the applicant's dismissal and not simply view the termination as an isolated incident. That wider consideration may include an assessment of whether the respondent employer initiated a thorough investigation of the circumstances surrounding the employee's alleged conduct, the independence of the investigator, whether the misconduct alleged is proven and, whether significant mitigating circumstances exist to warrant a penalty other than summary dismissal or termination by payment in lieu of notice. 177 As submitted by Mr Wilkinson a Full Bench authority affirming the possibility of mitigating circumstances is to be found in Bankstown City Council v Paris (1999) 93 IR 209. 178 In Franklins Ltd v Webb (1996) 72 IR 257 at 262 the Full Bench observed that employers: ...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. While that case dealt with summary dismissal for alleged theft, it is illustrative of the heavy onus upon an employer to ensure allegations in respect to an employee's conduct are investigated in a diligent and procedurally fair manner and justify the ultimate sanction of summary dismissal. Summary dismissal may also jeopardise a dismissed employee's prospect of future employment. It is therefore my view that the more serious the allegation against an employee, the more detailed the employer's investigation should be, and should include a search for exculpatory evidence. 179 Accordingly, the evidentiary burden to demonstrate the alleged misconduct is carried by the employer who is required to establish that: 1. The employer has conducted a full and as extensive an investigation into all of the relevant circumstances surrounding the alleged misconduct as was reasonable in the circumstances; 2. The employee was given every reasonable opportunity and sufficient time to make out a defence to the allegations or, explain his or her behaviour; and 3. Having completed the investigation and put the complete allegations to the employee in writing and having given the employee sufficient time to respond, the employer genuinely believed on reasonable grounds that the employee was guilty of the misconduct alleged. 180 The task of the Commission in these circumstances is to establish whether on examination of all the evidence, the applicant's punishment by the ultimate sanction of summary dismissal "fits the crime". That is, the Commission is required to determine whether in all the circumstances of the case the applicant's dismissal was warranted. On the evidence, that onus was not discharged by the respondent in this matter. 181 It is clear on the evidence and submissions of the respondent that in this particular case, the allegations in respect to the applicant's conduct were not investigated in a diligent and procedurally fair manner to ground the ultimate sanction of summary dismissal. Whether the conduct amounted to a fundamental breach and repudiation of the terms of employment 182 In cases of dismissal without notice for misconduct, the conduct alleged by the employer must be such that it constitutes a repudiation of the contract of employment by the employee. The onus rests with the employer to show a wilful and deliberate intention on the part of the employee. In New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440, Sams DP stated at paragraph 225: The allegations against the applicant were described as misconduct - the additional adjectives " wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship. 183 Misconduct justifying summary dismissal has been variously described. Whether the conduct of the employee justifies summary dismissal was considered in North v Television Corporation Limited (1976) 11 ALR 599. In the judgment of Smithers and Evatt JJ, their Honours set out their conclusions on the kind of conduct that would justify dismissal at common law at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. ... For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is `wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions .(Italics added) 184 The decisions in North v Television Corporation Limited, Laws v London Chronicle (Indicator Newspapers) Ltd and Natoli are authorities for the proposition that the conduct must be serious, in that it can be said to be inconsistent with the fulfilment of the express or implied conditions of the contract of employment and, it must be wilful, in that it involves a deliberate or intentional flouting of essential contractual conditions. It is reasonably clear on the evidence that the applicant's perseverance to have his pay issue addressed expeditiously, the raising of his voice with Ms Wade and a "heat of the moment threatening outburst", given the stressed state of his mind at the time he met with Mr Burchell, does not conveniently fall within the plain and ordinary meaning of the words "wilful" and "deliberate". Was the applicant afforded procedural fairness? 185 Where it is established that the misconduct as alleged did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty: Byrne & Anor v Australian Airlines Ltd (1995) 61 IR 32 . The Commission is also compelled to take into account the statutory basis for considering procedural issues and whether the termination was either harsh or unjust or unreasonable. The Commission's statutory basis for considering procedural issues lies in section 88 of the Act: In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant. 186 Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct prior to dismissal. In this regard, The Law of Employment by Macken, McCarry and Sappideen, 3rd Edition, states at pages 277-278: Procedural fairness requires that where an employee has been warned that her or his work performance is unsatisfactory or the employee is asked to give an explanation regarding an allegation of misconduct, the employee must first be given sufficiently detailed information about the nature of the allegations and then given adequate opportunity to refute those allegations. 187 Where the misconduct alleged by the employer is grounded, the Commission must consider whether termination is too severe a penalty. In Byrne & Anor v Australian Airlines Ltd, the High Court dealt with an award provision that prohibited "harsh, unreasonable or unjust dismissal". The joint judgment of McHugh and Gummow JJ observed at 72: ... one termination of employment may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. Their Honours continued at 74: Procedures adopted in carrying out the termination might properley be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. 188 Their Honours' joint judgement is authority for the proposition that a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Additionally, where the findings of an employer's inquiry and investigation are reasonable, the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the gravity of the misconduct. 189 The relevant test is not whether the employer believed, on reasonable grounds and after sufficient inquiry, that that employee was guilty of the conduct alleged. The employer's findings will be relevant to the Commission's determination provided it is established that the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances and the employer gave the employee every reasonable opportunity to respond to allegations. 190 In Antonakopoulos v State Bank, the Full Bench considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal. The Full Bench said at 389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures, which are unfair, and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. At 390, the Full Bench said: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 191 The applicant has vigorously challenged his dismissal on a number of grounds. Apart from the accusation and admission that he raised his voice, it was Ms Wade who pursued him across the factory floor, confronted him and made a number of disparaging remarks before launching her vitriolic tirade against him. With respect to the incident relied upon by Mr Burchell to summarily dismiss him, the applicant said that as fast as his anger rose, it subsided. He apologised and believed this gesture was accepted. He heard about his dismissal by chance from another employee following certain statements made within the office by Ms Wade. According to the evidence, at no time did the respondent inform him, either orally or in writing, that it was imminent that he was to be summarily dismissed. He was denied any opportunity to defend himself. 192 In the absence of a full and proper investigation, Mr Burchell was not armed with all the facts, including the conduct of Ms Wade, to form an opinion that there were valid grounds to support taking the ultimate sanction of summary dismissal. Accordingly, the applicant contends there were insufficient grounds for the respondent to form a reasonable belief that he committed the gravity of the misconduct alleged. Rather, the applicant admits he was persistent in initially pursuing Ms Wade and on the day, they both "lost it" momentarily. Conclusion and Finding 193 The applicant's conduct in this matter, like that of Ms Wade's, is regrettable. The applicant's conduct concerning Mr Burchell was serious and warranted sanction. Ms Wade's conduct is also serious and also warranted some form of sanction. As a manager, she has a high obligation and responsibility to eschew workplace conflict and not engage in provocative conduct in the workplace. However,on the evidence before the Commission, the seriousness of the conduct exhibited by both the applicant and Ms Wade, in the absence of a full and proper investigation where all the facts can be gathered and put to the employees concerned, must lie at the lower end of the scale when considered in the context of what normally constitutes serious and wilful misconduct. There was no evidence before the Commission to support a proposition that in making its decision to summarily dismiss the applicant the respondent considered his work history, as part of the process to validate its decision to terminate his employment. 194 In circumstances of this case, where the respondent was contemplating dismissal and the applicant was obviously quite distressed and upset upon being told to apologise to Ms Wade and other staff, it would have been reasonable for the respondent to have afforded the applicant a short paid suspension to allow him to get advice, afford him a proper opportunity to be heard and put the best case forward to defend the allegations against him. There would have been little prejudice to the employer. 195 The purpose of s88(b) of the Act is to enable an applicant to rebut the specific allegations or persuade the employer that notwithstanding the substance of the allegations raised, there were extenuating circumstances surrounding the conduct objected to. Moreover, there may be mitigating circumstances or an undertaking in respect of future conduct that could be considered. In this matter, the applicant has been denied an opportunity to robustly defend or mitigate the respondent's allegations and concerns for his behaviour. 196 Mr Evans pressed upon me a Jones v Dunkel (1959) 101 CLR 298 inference that WorkCover was not brought to give evidence to support the application. On the evidence before the Commission, I do not see any causal connection between the applicant's occupational, health and safety concerns and his summary dismissal. As Cross on Evidence (5th Aust ed (1996) at [215] states: The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. 197 Similarly, there is no evidence to suggest that the applicant's dismissal was due in any part to him contacting "Industrial Relations" to obtain advice concerning pay issues put to him by Mr Burchell. Mr Wilkinson did not press this matter. 198 Having considered all the evidence and submissions of the parties put before the Commission, I find the applicant's dismissal was procedurally unfair and in all the circumstances harsh, unreasonable and unjust. 199 Notwithstanding Mr Evans' submission that despite the applicant's summary dismissal, if the Commission found the dismissal harsh, unreasonable or unjust, rather than award compensation the Commission should reinstate the applicant as "there was no animosity towards the applicant on their part". I have formed the view that on the material before the Commission reinstatement would be impracticable as the evidence was that the employment relationship was incapable of restoration. 200 During the hearing, the Commission became aware that the applicant had commenced a period of workers' compensation on or about the date of his dismissal. In submitting that the respondent would not oppose reinstatement, Mr Evans stated that the amount of compensation that had been paid to the applicant was broadly equal to the amount that the applicant was earning at the date of termination. He submitted the amount was $600 per week. Mr Wilkinson asserted the amount was about $650 per week and indicated that he would seek further instruction from the applicant. No further submission was made. 201 Section 89 of the Act deals with orders for compensation. Sections 89(5) and (6) relevantly state: (5) Compensation. If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) 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 received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. 202 Section 89(6) requires the Commission to consider the alternative income available to the applicant during the six months following termination of employment. In this case the applicant was paid workers' compensation. Because of his incapacity, on the evidence it appears he was unable to otherwise seek alternative employment nor did he seek it. However, the applicant has received workers' compensation payments, and on Mr Evans' submissions, equal to the amount that he would had received prior to dismissal. It was on that basis that he submitted no compensation should be ordered. Mr Wilkinson submitted that the maximum compensation of six months pay should be ordered. 203 In Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano [2006] NSWIRComm 1077, McLeay C acknowledged the limitation imposed by s89(6): 21 In Banning v Great Lakes Council [2002] NSWIRComm 47, his Honour Deputy President Harrison found that a termination of employment in breach of the provisions of s 99 was unlawful, rendering the dismissal harsh, unreasonable and unjust. In ordering reinstatement of Mr Banning, his Honour found that "compensation is not an appropriate or adequate remedy" since in the circumstances of workers' compensation payments being paid, "the limit of the Commission's jurisdiction in the circumstances of this case would result in a small if not negligible payment". 204 This is also a case where the limit of the Commission's jurisdiction in the circumstances must result in a small compensatory payment as any order for compensation must take into account the workers' compensation benefit received by the applicant. However, in determining the order, it is also proper that the Commission take into consideration the range of losses which the applicant has sustained and will continue to sustain because of the unjust termination of his employment: Algeri v GGA Law Practice Pty Ltd t/as Galluzzo Golotta Andriano at paragraph 30. 205 For these reasons, it is appropriate to consider the applicant's personal hardship, humiliation, loss of leave and other entitlements together with any diminution of his income as a result of him being on workers' compensation. I make the following orders. 206 I am satisfied that it is appropriate to order the respondent to pay to Mr Moad an amount of $3,750.00 as compensation, payable within 21 days. 207 I so order. 208 Matter No IRC 5482 of 2005 is so concluded. ooOoo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : Stanton C Thursday, 28 September 2006 Matter No IRC 5482 of 2005 Michael Anthony Moad and A Whistle & Co (1979) Pty Limited t/as Electrodry Carpet Cleaning Application by Michael Anthony Moad re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. ORDERS 1 Pursuant to section 89(5) of the Industrial Relations Act 1996, A Whistle & Co (1979) Pty Limited t/as Electrodry Carpet Cleaning, is to pay to the applicant in those proceedings, Mr Michael Anthony Moad, an amount of $3,750.00 as compensation within twenty-one days of the date of this decision. 2 I so order. J D Stanton 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.