Industrial Relations Commission New South Wales Medium Neutral Citation: Blunt v Port Stephens Council [2011] NSWIRComm 1035 Hearing dates: 27/06/11, 28/06/11 Decision date: 15 July 2011 Jurisdiction: Industrial Relations Commission Before: Ritchie C Decision: Catchwords: Unfair dismissal application-applicant terminated for head butting a fellow worker-applicant's defence was that the clash of heads was accidental-fellow worker and another fellow worker claimed that the applicant had intentionally head butted a fellow worker-Commission found that the action was not as a consequence of an accident or provocation or extenuating circumstances existed- after consideration of all the evidence found that the applicant had intentionally head butted the fellow worker. Application was dismissed. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: GJ Coles &Co Ltd v SDA NSW(1983) 6IR42: AWU-FIME v Queensland Alumina Limited (1995) 62IR385. Category: Principal judgment Parties: Applicant : Mr R J Blunt, Respondent Port Stephens Council Representation: Applicant: Mr M Preece; Respondent Mr R Warren Applicant Mr C Ryan of Chris Ryan Legal; Respondent Mr A Cardillo of Harris Wheeler Lawyers. File Number(s): IRC 263 of 2011 DECISION Background. 1The applicant Mr Richard Blunt had filed on his behalf on 18 March 2011, an application for unfair dismissal under section 84 of the Industrial Relations Act, 1996 against his employer Port Stephens Council(the respondent). 2The matter came on for conciliation and if necessary Directions on 7 April 2011. On that day conciliation was unsuccessful and a timetable for the filing and serving of evidentiary material was provided to the parties. 3The Hearing was set down for two days in Newcastle. The Hearing took place on 27 and 28 June 2011 with the Commission reserving its Decision at the end of submissions. 4As the applicant Mr Blunt was terminated on 16 February 2011 he noted in his application that the application was originally filed in Fair Work Australia on 22 February 2011. When it was brought to his attention that his application was in the wrong jurisdiction there was a delay in refiling in the State jurisdiction as his legal representative was on leave. His claim therefore was 9 days late. Mr Warren for the respondent stated in Court that the respondent would not object to the application being filed late. The application was therefore allowed to proceed. 5Mr Preece for the applicant advised that his client would not be seeking reinstatement or re employment but purely monetary compensation. Applicant's Case. 6The applicant had filed an affidavit and was subject to cross examination. No affidavits in reply were filed by the applicant. 7The applicant stated that he was employed by the respondent as a ranger and had commenced employment 0n 28 May 1990. At the time of the Hearing he was 57 years old. 8On 28 January 2011 at about 4.45pm the applicant was on a day off when he received a phone call from his supervisor Mr Paul Minett to advise that due to one of the other ranger's vehicle being unserviceable Mr Colin Kernaghan would be calling around to his home to collect his Council vehicle. A few minutes later Mr Kernaghan and another ranger Mr Garry Finlay pulled up outside the applicant's house. Mr Finlay had parked his car partially across the driveway of the applicant's house and behind the applicant's car. The applicant stated that he asked Mr Finlay to move his car as the applicant's council vehicle was parked outside his house in the street and he had to obtain personal items from the vehicle. He stated that Mr Foley said for the applicant to leave all of the Council gear in the vehicle. 9He stated that Mr Finlay moved his car and the applicant reversed his car up his drive so he could more easily remove his equipment. He had in the back of the vehicle a couple of heavy tool boxes and some other equipment . As he removed this equipment from the vehicle Mr Finlay came and stood no more than a metre from the tailgate of the work vehicle he was unloading. He stated that Mr Finlay then told him to leave the gear in the vehicle as they were not his but Council's. The applicant stated that he responded by telling Mr Finlay to leave it as there were some items that were not the Council's but his personal items. He removed the dog catch pole and placed it on the ground near the rear of the vehicle. The applicant stated that it was his intention to replace the pole once he had removed his personal items. Mr Foley took the pole and put it back in the vehicle stating that it was Council's. 10Mr Finlay then walked away from the vehicle and stood on the applicant's front lawn and made niggling comments saying such things as : " don't be a bastard: just leave the things in the car" "things won't get knocked off at Colin's place: you're more likely to have things stolen out the front of your place than at Colin's" "you're making yourself out to be a fat idiot". The applicant said he had interpreted Mr Finlay's comments as hostile and provocative. The applicant stated that he took particular offence at being called a "fat idiot ". The applicant walked over to where Mr Finlay was standing and told him to get off his property. He stated that Mr Finlay folded his arms and asked "What are you going to do about it ?". The applicant again asked him to leave his property as he was not needed there. 11At this point the applicant was about half a metre from Mr Finlay. Mr Finlay then pushed the applicant in the chest with two open hands which caused him to take a backward step to stop from falling. The applicant regained his balance to resume his stance and in doing so moved forward. The applicant stated that Mr Finlay also stepped forward at the same time and they clashed heads. 12The applicant again told Mr Finlay to leave his property. Mr Finlay shaped up with his fists and the applicant did also. The applicant heard Mr Kernaghan say something like , cut it out you two. 13The applicant said that he did not see Mr Finlay hold his head nor did he see any blood. Both Mr Finlay and Mr Kernaghan then got in the car which they arrived in and left the scene. The car drove to the end of the street and then circled back. When it went past the applicant he saw what it appeared to be Mr Finlay making a phone call. The applicant then went and phoned Mr Minett and advised him of the incident. 14The applicant denied that he was in a bad mood on that day and it was not his intention to deprive Mr Kernaghan of the vehicle. He stated that the action of handing over a vehicle to another ranger he had done many times in the past. 15He stated that the clash of heads had been an accident. 16Later he was suspended on full pay. 17He stated on either 3 or 4 February 2011 he attended a meeting with Ms Michelle Gilliver-Smith (HR Manager) and his supervisor Mr Paul Minett where he gave his side of the incident. He at that meeting denied that he had intentionally clashed heads with Mr Finlay. 18On 16 February 2011 he attended another meeting with Ms Gilliver-Smith and Mr David Broyd a member of the Executive team from Council. Also present was Mr Robert Potter from the United Services Union. It was at that meeting that he was advised that he was being terminated. 19The applicant stated that he had previously been formally disciplined twice. Once for an incident with his supervisor Ms Jillian Petersen in October 2006 and the other for inappropriately accessing RTA records. 20The applicant stated that there had been a previous incident with Mr Finlay in October 2010 when Mr Finlay made an insensitive remark concerning the Council's support to breast cancer. At the time the applicant's father had 12 months ago died of cancer and currently his sister in law had been diagnosed with breast cancer. Mr Minett organised a meeting between Mr Findley and the applicant which resulted in both parties apologising to each other. 21The applicant stated that over the twenty plus years he had worked for the respondent he had received various commendations and letters of appreciation from Council and other community workers. Respondent's case. 22The respondent filed 7 statements. Of those 5 were required for cross examination. 23Mr Garry Finlay filed a statement and was required for cross examination. He stated that he had been an employee of the respondent since 1990 and had known the applicant for over twenty years. Mr Finlay is a ranger with the respondent. 24He stated that it had been his experience that when working with the applicant he found it difficult as the applicant was a moody person who could get aggressive by yelling at people and standing very close to them. He stated that the applicant did not single him out but treated everyone the same way. 25On 28 January 2011, Mr Finlay was with another ranger Mr Colin Kernaghan when they went to pick up Mr Kernaghan's work vehicle at a Ford dealership where it was being repaired. As it was not ready they contacted their supervisor Mr Paul Minett who advised them to go to the applicant's place and take his work vehicle. Mr Minett had spoken to the applicant and that would be OK. 26Mr Finlay drove Mr Kernaghan to the applicant's house and parked in the street behind the applicant's work vehicle. Mr Kernaghan got out of the vehicle and Mr Finlay stated that he stayed in his vehicle. Mr Finlay said that the applicant got into his vehicle and revved the motor loudly and quickly reversed around the vehicle he was in over the gutter and up his drive way. The applicant then started to unload his vehicle of equipment dropping into onto the ground. He appeared very angry. 27The applicant had removed the dog catching pole. Mr Finlay stated that he got out of his vehicle and approached the applicant and said to the applicant: "" C'mon Rick Colin will need the equipment, don't be like that." Rick said: "I am taking out my equipment, he can have the Council equipment." Mr Finlay replied: " That's not right Rick we all work together , just leave him what he needs for the job." The applicant then walked to and opened the driver's side door and commenced to remove the GPS and Bluetooth hands free. During cross examination Mr Finlay conceded that he was wrong with respect to the GPS as it had been stolen a few weeks before. 28Mr Finlay then stated that he walked away from the vehicle and stood approximately on the boundary to the applicant's front yard and said : "Stop being a bastard , Colin 's not going to steal your gear." The applicant responded: "I have had my equipment stolen before in the twenty years and I am not lending my ute with my gear in it." Mr Finlay responded: " Stop being a bastard there's no need for that Rick." 29The applicant then walked quickly over to Mr Finlay and pushed his chest and stomach against him, standing over him. The applicant then yelled at Mr Finlay: " Get off my property , fuck off my property." Mr Finlay stated that he felt afraid that he was going to be hit and said: " What are you going to do ?" Mr Finlay believed he was going to be hit as the applicant lent closer to him so he tried to push him away using the palms of his hand. He was not successful as the applicant was too big and too heavy and he himself was pushed back. The applicant then leaned his head back and head butted him with a lot of force with the applicant's forehead hitting the bridge of Mr Finlay's nose. The force of the blow broke the skin on the bridge of Mr Finlay's nose causing it to bleed. Mr Finlay said he was dazed by the blow and took two or three steps back as he thought he would hit him again. The applicant then came at him swinging punches at Mr Finlay so he put his hands up to block the blows which fell on his hands and arms. Mr Finlay said that he continued to move backwards blocking and dodging the punches whilst swinging back at him in self defence. He said that he did not hit him because he was much bigger than him. 30Mr Finlay denied that he said to the Applicant that he was a " fat idiot". It was the view of Mr Finlay that the head butt was deliberate and not an accidental head clash as the applicant was so much bigger than him. To be accidental he would have had to be stooping. 31Mr Kernaghan came between the two persons and told the two to stop and settle down. Mr Finlay said that Mr Kernaghan then took his arm and walked him to the rear of his work vehicle which at that point he noticed he was bleeding. Mr Kernaghan then retrieved his brief case and bag from the applicant's vehicle parked in the driveway and said to the applicant: " That's not right what you did Rick." The applicant replied : " He punched me first." Mr Kernaghan replied: " No he didn't , you head-butted him." The applicant replied: " You will stick up for him." 32Mr Finlay and Mr Kernaghan then left in his car. A short time later Mr Finlay stopped the car and took a photo of his face and then contacted Mr Minett to report the assault. He then drove back to the respondent's office. 33A pre employment medical examination of Mr Finlay dated 29 July 1987 stated that he was 172 cms tall and weighed 70.3 kgs.(exhibit 2) 34Mr Colin Kernaghan filed a statement and was subject to cross examination. He stated that he commenced a nine month contract with the respondent on 20 March 2010 as a ranger. He had previously been employed as a police officer with the Victorian Police Force for approximately 20 years. 35Mr Kernaghan stated that as a consequence of his working vehicle not being available it was organised for him to use the applicant's work vehicle and he was therefore dropped at the applicant's home on 28 January 2011 by Mr Finlay. The applicant's vehicle was parked outside of his house in the street. The applicant came out of his house did not respond to Mr Kernaghan's opening greeting but said in a loud voice: " You will have to use your own equipment , I am getting all of mine out of the ute". Mr Kernaghan responded that all of his equipment was still in his vehicle. The applicant got into his work vehicle revved up the engine loudly and then reversed quickly around Mr Finlay's vehicle jumped over the gutter and up the drive way. The applicant then started to unload his vehicle. The applicant unloaded a tool box and drop it heavily on the ground. It appeared to Mr Kernaghan that the applicant was agitated for some reason. He then heard Mr Finlay say to the applicant: "C'mon Rick, Colin will need the equipment, don't be like that." The applicant respondent: " I am taking my equipment, he can have the Council equipment." Mr Kernaghan then saw Mr Finlay pick up a dog catching pole from the ground and place it back into the vehicle and say to the applicant: " That's not right Rick, we all work together, just leave him what he needs to do the job." The applicant then walked to the front of the vehicle where Mr Kernaghan had placed his brief case and a blue bag and advised the applicant that he did not have a choice as his vehicle had not been ready. The applicant then took out his Bluetooth. 36He then saw Mr Finlay walk towards his vehicle parked in the street. He stood either on or close to the boundary of the property. He then heard the applicant state that he had his equipment stolen before in the last twenty years and was not lending his ute with his gear in it. Mr Finlay responded by say: "Don't be a bastard, Colin is not going to steal any of your gear." Mr Kernaghan then heard the applicant say to Mr Finlay : I do not need you here , get out of my face" Mr Finlay responded: " Stop being a bastard, there is no need for that Rick." 37Mr Kernaghan then saw the applicant rush towards Mr Finlay and stood very close to him. The applicant's face was about two centimetres from Mr Finlays face with the applicant's chest and stomach appearing to be against Mr Finlay's chest. The applicant is considerable taller than Mr Finlay. The applicant then yelled: " Get off my property , fuck off my property." Mr Finlay stated : "What are you going to do ?" He saw the applicant lean closer to Mr Finlay and Mr Finlay try and push him off. The applicant did not move. He stated that he then saw the applicant cock his head backwards, and then move his head very quickly forward in a head butting move down on Mr Finlay's face. He said that he did not know where the blow landed but he did see later there was a cut on the bridge of Mr Finlay's nose which bled. 38He then saw the applicant throw about three punches at Mr Finlay and Mr Finlay moved backwards. Mr Finlay put his arms up to fend off the applicant's punches. He did not see Mr Finlay move forward. He saw the applicant move forward and the two men moved in a circular movement. Both of the men had shaped up and he saw Mr Finlay throw two or three punches at the applicant which bounced off his arms. 39Mr Kernaghan stated that he had no doubt that the applicant deliberately head butted Mr Finlay. 40Mr Kernaghan stated that he then jumped between the two men pushing them back from one another and stated: "Stop that, you cannot do that, settle down." He then took Mr Finlay's arm and walked him to the rear of his vehicle and left him there and then walked back towards the applicant's vehicle and retrieved his briefcase and bag from it and said to the applicant: " That's not right what you did, Rick." He said: "He punched me first in the stomach." Mr Kernaghan replied: " No he didn't, you head-butted him first." As Mr Kernaghan walked back to the vehicle where Mr Finlay was, the applicant said: " You will stick up for him." 41The two then drove away back to the respondent's office. The assault was reported to Mr Minett by Mr Finlay. A short time later he spoke with Ms Gilliver-Smith who asked both he and Mr Finlay to prepare a statement. 42Mr Kernaghan said that when he first commenced with the respondent he was paired with him and found the applicant to be friendly and helpful. During those first few weeks the applicant sometimes spoke to members of the general public in a very loud and occasionally in an aggressive manner. 43Mr Kernaghan stated that there was an incident on 10 January 2011 when at a rangers meeting the applicant stated that he did not believe that Mr Kernaghan had three RDO's which he had applied for to be taken in February 2011.The applicant was advised by Mr Kernaghan that he had checked and he was entitled to them. What Mr Kernaghan said was not accepted by the applicant so Mr Minett asked Mr Kernaghan to recheck and let him know which he then left the room to do. When he returned he explained to the applicant , Mr Minett and Mr Finlay that he was correct. The applicant still did not believe him so the applicant left and went to the payroll office. The lady at the payroll office explained to the applicant that Mr Kernaghan did have an entitlement . The applicant left the office and returned to the ranger's office. 44When Mr Kernaghan arrived back in the ranger's office the applicant was still discussing the issue. Mr Kernaghan said to the applicant : " Are you now clear I have 3 RDO's to take by February." The applicant glared at Mr Kernaghan and said: " Get away from me , just leave, fuck off." Mr Kernaghan said: "I will leave but you need to do a lot of thinking." 45Mr Kernaghan reported this incident to Mr Minett and advised that he had been yelled at, sworn at and accused of trying to get leave that he was not entitled to in front of fellow rangers and office staff. 46Mr Peter Gesling filed a statement but was not required for cross examination. He is the General Manager for the respondent. He stated that he was advised of an incident between two rangers that occurred on 28 January 2011 on the following day. He convened a meeting of the code of conduct panel and he authorised an investigation to be commenced immediately. The initial report revealed to him that the matter was serious and he therefore made a decision to suspend the applicant on full pay pending an investigation. 47Mr Gesling stated that he considered the information gathered in the report and determined that the applicant had head butted Mr Finlay and had breached the respondent's code of conduct. He stated that he considered the applicant's length of service, and his employment record and decided that his employment should be terminated. 48He stated that it was reported to him through Ms Gilliver - Smith that the applicant through his union representative would take unfair dismissal proceedings against the respondent but would not do so if the respondent allowed him to resign. He agreed to this subject to a Deed of Release being completed. He was subsequently informed that the applicant had engaged a lawyer and was proceeding with an unfair dismissal claim. 49Ms Ines Piggott filed a statement but was not required for cross examination. She holds the position of Customer Support Officer for Environment Health Team for the respondent. 50She stated that at approximately just before 5.00pm on 28 January 2011 she received a phone call from the applicant seeking to speak to Mr Minett who was not in. The applicant stated that the vehicle was ready to be picked up, the keys were in the back and the car was unlocked. Mr Minett would understand. 51Later that afternoon after 5.00pm she saw Mr Finlay and Mr Kernaghan come into the office. There was a conversation between Mr Kernaghan and a Mr Bruce Petersen and then Mr Petersen went and spoke with Mr Finlay . They were talking about an incident and the disbelief at the applicant's actions. She stated that she went into the rangers room and saw Mr Finlay who had a cut and redness on his nose and appeared to be a bit pale and shaken. She asked him how he felt and he advise that he had a bit of a headache. Mr Finlay then told her what had happened and that he was astonished at the applicant's actions towards him. She stated that she then left the room but heard talking about arranging a doctors appointment for the weekend at the poly clinic. 52She stated that when a Jill Petersen was appointed as the Ranger Team Leader the applicant was upset at not being appointed and refused to talk directly to her and would leave messages with other staff to convey to her. 53She had heard the applicant raise his voice and belittle fellow staff in front of others and be domineering. She believed he had poor interpersonal relationships with some of his direct team members bringing some female staff to tears over disagreements. 54She also stated that he was dedicated to his job showing professionalism in his performance and had a wealth of knowledge and experience as a ranger. 55Mr Paul Minett filed a statement and was subject to cross examination. He holds the position of Coordinator of Environmental Health and Regulation. He supervises the ranger team. 56On 28 January 2011 as a consequence of Mr Kernaghan's work vehicle not being available for the weekend he contacted the applicant at about 4.30pm and advised that Mr Kernaghan would be around to pick up his vehicle which the applicant was fine about. He did advise Mr Minett that he would have to remove some personal gear from his vehicle. He then spoke to Mr Kernaghan that it was OK to pick up the vehicle. 57Approximately ten minutes later he received a phone call from Mr Finlay who sounded distressed stating that he had just been head butted by the applicant. Mr Finlay stated to him that his nose was bleeding and he was with Mr Kernaghan. Mr Finlay outlined what had occurred . Mr Kernaghan the came on the phone and confirmed to him the details of what he had seen. He requested that Mr Finlay come back to the office and complete an incident report. 58He then received a phone call from the applicant who sounded extremely agitated. The applicant advised that he had just had an altercation with Mr Finlay. The applicant said to Mr Minett: "Paul, he can't come onto my property and try to make me look like a fool and swear at me, I asked him to leave my property and he wouldn't and then he pushed me." Mr Minett said: "Did you head butt him " The applicant replied: " Yes, but only after he pushed me in the chest and refused to leave my property." Mr Minett said: " Where was Colin while all this was happening?" The applicant replied : " He was there, but he'll obviously take Garry's side. I've got a witness that saw it all happen, one of the kids next door saw it all. He saw Garry push me . He ran down the street to tell Riley that his dad was in a fight." Mr Minett said: " Ok Rick. This is pretty serious though. Why would you need to fight over swapping vehicles" The applicant stated : " I was only taking out my own gear, my hat, vest and things like that. Garry was swearing at me and trying to tell me what to do on my own property and wouldn't leave when I asked him to." Mr Minett said: " You'll have to prepare a file note of what happened. Are you still OK with Colin coming to get the vehicle." 59Later he said he received phone calls from Ms Gilliver-Smith and Mr Petersen. 60On the following day he met Mr Finlay at Nelson Bay District Hospital. He again questioned Mr Finlay as to what had happened the previous day and he confirmed what he had told him the previous day. 61In his statement Mr Minett recounted two incidents concerning the applicant. One concerned a complaint by Jill Petersen in February 2007 who reported that she was having difficulty working with the applicant as he did not respect her position in that he speaks very aggressively to her and will stand right in front of her and acts in a manner that undermines her position. Mr Minett stated that he had several meeting with the applicant relating to his behaviour towards Ms Petersen. One meeting held on 7 February 2007 with the applicant , Mr Minett and Mr Petersen who was his manager. Mr Petersen led the meeting. The meeting ended with the applicant shouting at Mr Minett saying : " I'm not talking to you because I don't trust you." It was Mr Minett's view that this was an unprovoked outburst. 62Mr Minett also recounted an incident that took place in early January 2011 when the applicant had an issue with Mr Kernaghan's roster. Mr Minett stated that he was advised by Mr Kernaghan and other rangers that the applicant confronted Mr Kernaghan and stood very close to Mr Kernaghan in a physically intimidating manner. 63Mr Minett stated that since he has been the supervisor for the rangers that applicant has not approached him with any complaints about bullying from other rangers. It was only after the incident on 28 January 2011 at a meeting he held with the applicant and Ms Gilliver-Smith on 3 February 2011 that the applicant alleged that rangers had bullied him about his weight. 64Mr David Broyd filed a statement and was required for cross examination. He holds the position of Group Manager, Sustainable Planning. Rangers fall within his Group. 65He stated that he was on the verge of going home on 28 January 2011 when he received a phone call from Ms Anne Schmarr who advised that there had been an incident between two rangers . He then had a conversation with Anne and Richard Petersen. He was advised that the applicant had assaulted Garry Finlay. It was requested that both Mr Finlay and a witness to the incident Mr Kernaghan prepare statements setting out what happened. 66A few days later he spoke to both Mr Finlay and Mr Kernaghan individually and gave him a verbal account of what happened. 67Mr Broyd stated that when Ms Jill Petersen was appointed Ranger team Leader he received a number of complaints concerning the applicant's behaviour towards her. It was reported that he was abrasive towards her, had an undermining attitude towards her leadership and showed a lack of respect towards her. Mr Broyd advised the applicant that his behaviour was unacceptable and to adjust his behaviour. 68Ms Michelle Gilliver - Smith filed a statement and was required for cross examination. Ms Gilliver - Smith is the Human Resources Manager and has held this position for approximately 4 years. She stated that she has had a number of dealings with the applicant in relation to performance issues and also in a general sense. 69She stated that on 28 January 2011 at approximately 5.00pm when she was advised by Mr Bruce Petersen that there had been an incident with tow of the rangers and that the applicant had head butted Mr Finlay. This had occurred when Mr Kernaghan with Mr Finlay had driven to the applicant's home to pick up a work vehicle. Mr Broyd was contacted and she then had a meeting with Mr Broyd and Ms Schmarr about how to handle the situation and to make sure that the two rangers would not come into contact with each other whilst an investigation took place. On the basis of this risk assessment it was decided to suspend the applicant with pay. 70Ms Gilliver-Smith then went down stairs and saw Mr Finlay and Mr Kernaghan. In her view Mr Finlay was visibly shaken and had a cut on his nose. When asked how he felt Mr Finlay said : " I have a headache , I can't believe this has happened." She then asked what had happened and was told. She asked for a statement by each of the rangers to be prepared. She received by email Mr Finlay's statement later that evening and Mr Kernaghan's the following day. Arrangements were made for Mr Finlay to see a doctor the following day. She sent an email of the incident to the United Services Union and the General Manager of the respondent. 71On 31 January 2011 it was organised for the collection of the work vehicle from the applicant's home. On the same day Ms Gilliver- Smith contacted the applicant and advised that this was a code of conduct matter, she was meeting with the General Manager and they were going to organise a meeting with the applicant for 7 February 2011. The applicant stated that he would prefer that the meeting was held as soon as possible. The applicant also stated that he wished his union representative to be available. 72She then received a phone call from Mr Robert Potter of the union to say that he would be available on 3 February 2011. The applicant was formally advised of his suspension on full pay by the General Manager in correspondence dated 31 January 2011. 73Ms Gilliver- Smith and Mr Paul Minett met with the applicant and Mr Potter on 3 February 2011. This meeting was recorded by consent. All parties received a copy of the tape. At this meeting the applicant told his story stating that at the critical moment he was standing about two feet apart when without provocation Mr Finlay pushed him in the chest with his two hands, causing him to step back one step. He then quickly stepped forward and he believed that Mr Finlay stepped forward too at the same time and they knocked heads. 74During the meeting the applicant stated that he was a big man weighing some 145 kilos. 75On 8 February 2011 she sent a copy of the statements of Mr Finlay and Kernaghan to the applicant. 76On about 15 February 2011 she met with the General Manager to discuss the results of the investigation. She stated that the respondent has an advisory council which considers investigations involving code of conduct matters with a view of providing the General Manager with appropriate advice so as he can make a final decision. 77On 16 February 2011 she had a meeting with Mr Broyd, Mr Potter and the applicant. It was at this meeting that the applicant was advised that the General Manager had decided to terminate his employment and that he would receive 5 weeks pay in lieu of notice. It was during this meeting that she and Mr Potter left and had a private meeting where Mr Potter sought that the applicant be allowed to resign. Ms Gilliver-Smith said she would have to check with the General Manager and that a Deed of Release would have to be signed. 78Ms Gilliver - Smith checked with the General Manager who allowed a resignation to take place subject to a Deed of release. She then contacted Mr Potter. On the same day after hours the applicant came into the office to collect some personal items and asked: "Do you have that piece of paper to sign ?" She replied :' " Not yet, the solicitors are drafting the deed and we will get it to you as soon as possible." The applicant replied: " I want to sign it because I am going to retire anyway." 79The next day the Deed was sent to the union. She received no response so a few days later she contacted Mr Potter and was advised that they were no longer representing the applicant as he had engaged a solicitor. 80Ms Gilliver- Smith stated that there had been a number of incidents with the applicant where he had displayed aggressive behaviour towards other staff with numerous file notes on his personnel file recording incidents involving aggressive and bullying behaviour towards other members of staff. She highlighted two incidents. The first being the applicant's behaviour towards Ms Jillian Petersen who had been appointed as a team leader. Ms Petersen complained that the applicant had been bullying her and undermining her position.. A number of meetings were held to try to resolve the matter but were never fully resolved as Ms Petersen took time off work for stress and then shortly thereafter went on maternity leave. The second involved an incident in early January 2011 when the applicant believed Mr Kernaghan was not entitled to days off and had spoken to Mr Kernaghan in a manner that resulted in Mr Kernaghan making a report. Consideration and Decision. 81The substantive question to be determined in this matter by the Commission centres on the incident that occurred on 28 January 2011 between the applicant and Mr Finlay. The location of the incident was the front lawn of the applicant. Whilst the location of the incident was clearly not a work site, the reason why Mr Finlay and Mr Kernaghan were there on that day was most definitely work related. Neither party made a submission that it was not work related. The applicant's submission was that what occurred was an accident. The respondent's submission was that it was a deliberate act. 82It is an agreed fact that the applicant walked over to where Mr Finlay was standing a matter of some three to four metres away either on or near the edge of the applicant's property. The applicant stated that he then stood some two feet from Mr Finlay. It was the action of Mr Finlay in pushing with his two open hands onto the chest of the applicant that made the applicant step back. This action in the applicant's view also caused Mr Finlay to step back and when the two persons came forward they struck there heads. 83It was Mr Finlay's evidence that the applicant came over towards him in an aggressive manner and stood so close that his stomach/chest was leaning on him and his face was a matter of a few centimetres from him. Mr Finlay admits using his two open hands to try and push the applicant off him. It was his evidence that he did not move him at all. It was Mr Finlay's evidence that the applicant deliberately used his head to strike him on his nose. 84I am satisfied that there was a clash of heads that day which resulted in Mr Finlay sustaining a cut on his nose as seen in the photograph taken very shortly after the incident which became evidence in the case. 85It was the evidence of Mr Kernaghan that the applicant was standing so close to Mr Finlay that their bodies were touching and that the applicant's face was mere centimetres from Mr Finlay. It was the clear evidence of Mr Kernaghan that the applicant deliberately head butted Mr Finlay. 86I am satisfied that from the evidence of all three individuals who were there on the day the incident took place, that Mr Kernaghan was in a position to have a clear unobstructed view of the incident. 87I am also satisfied from the evidence of both Mr Finlay and Mr Kernaghan that the applicant was not in a pleasant or reasonable mood that afternoon. Both Mr Finlay and Mr Kernaghan gave evidence that the applicant reversed his work vehicle around the parked work vehicle that Mr Finlay was sitting in, jumping the kerb to drive up his drive way in a loud aggressive manner. I accept the evidence of Mr Finlay that the reason he got out of his vehicle was to make sure that the respondent's equipment was left in the vehicle so as it could be used by Mr Kernaghan over the weekend. I am also satisfied that whilst Mr Finlay used the term "bastard" towards the applicant it was not used in a derogatory fashion that meant to incite the applicant. I accept the evidence of both Mr Finlay and Mr Kernaghan that Mr Finlay was trying to calm the applicant down. Both Mr Finlay and Mr Kernaghan denied that Mr Finaly had called the applicant a "fat idiot". After considering the cross examination of Mr Findlay on this point I am satisfied that he did not use the term " fat idiot" at any time during the verbal exchange between the applicant and himself. 88The Commission asked the applicant the reason why he walked away from his work vehicle and stood so close to Mr Finlay. He could give no reason. Taking into consideration that the applicant had received training at work which included how to diffuse a situation, then the very act of the applicant of standing so close to Mr Finlay in my view was a provocative one that can be interpreted as seeking to intimidate Mr Finlay. 89In considering the evidence as to whether the incident was an accident or a deliberate act I have also considered the physical size of the two persons. The applicant advised that he is 6'1'' (185.42cms) and weighs approximately 140 kilos. Mr Finlay stands 172 cms tall. Mr Kernaghan believed that Mr Finlay weighed about 80 kilos. I accept that his belief is a reasonable summation. In comparing the two persons the applicant is approximately some 13.42cms taller and is approximately 60 kilos heavier. For the applicant to have struck Mr Finlay on the nose with his head in an accidental manner he would have had to come forward, from the push on the chest, in somewhat of a semi crouching fashion. It was the evidence of Mr Kernaghan that the applicant did not take a backward step at all but saw the applicant's head cock back , and then quickly moved forward and down and head butted Mr Finlay on the nose. This evidence he stated quite clearly. 90Mr Preece for the applicant raised the issue of the quoted text of the two statements that Mr Finlay made on 28 January 2011 and Mr Kernaghan on 29 January 2011. It was expressed by Mr Preece and accepted by Mr Warren for the respondent that the quoted text of what was said by the parties were the same. Mr Kernaghan stated that whilst Mr Finlay had commenced typing his statement on the afternoon of 28 January 2011,it was Mr Kernaghan who completed typing the statement because Mr Finlay was still not feeling well. Mr Kernaghan gave evidence that he only typed what Mr Finlay stated. This evidence was supported by Mr Finlay. The following day Mr Kernaghan typed up his own statement. When questioned by Mr Preece as to the replication of the quoted text it was Mr Kernaghan 's response that he remembered the words from the day before. It is my view that the possibility of Mr Kernaghan remembering the quoted text, word for word, with what was expressed that day before in Mr Finlay's statement is difficult to believe. Whilst I appreciate that given Mr Kernaghan's long experience in the Victorian Police which would have encompassed taking statements of incidents, such an ability to remember exactly word for word of quoted text is questionable. It was Mr Preece's submission that Mr Kernaghan was a liar and that Mr Finlay and Mr Kernaghan colluded in their evidence and therefore it should not be believed. In his submission both Mr Finlay and Mr Kernaghan had reason to have the applicant terminated. Mr Finlay had a previous incident with the applicant and so had Mr Kernaghan. Also at that time Mr Kernaghan was on a fixed term contract and was looking for a permanent position. In cross examination both Mr Finlay and Mr Kernaghan denied colluding in reporting the evidence. Mr Kernaghan had made application for a permanent position but decided to return to Albury once his fixed term contract had ended and did not persue permanent employment. I am satisfied that after carefully watching both Mr Finlay and Mr Kernaghan give their evidence in Court that what they stated they saw on 28 January 2011 was the truth. 91In his final summary Mr Warren made the statement that the applicant was terminated for what he did, not what he said. I accept this submission. The applicant was terminated for what occurred on 28 January 2011 at the front of his house. It is my finding that the applicant left the area of the work vehicle parked on the driveway and walked over to Mr Finlay some metres away and by standing so close to Mr Finlay, that he was actually leaning on him, he placed himself in a provocative position. A large man standing over a much smaller man. 92After considering all the evidence that has been placed before this Commission, it is my finding based on the balance of probability that the applicant deliberately did head butt Mr Finlay in the face striking him on the nose. His response to, in my finding the non threatening remarks of Mr Finlay and Mr Finlay's pushing of the applicant to get the applicant off him, was quite disproportionate. I do not therefore accept the applicant's statement that the clashing of heads was accidental. 93I shall now consider whether the applicant's action was as a consequence of provocation and or self defence or if there were any extenuating circumstances. After consideration of the conversation that went between the applicant and Mr Finlay prior to the incident, I do not believe that Mr Finlay's conversation was provocative. The applicant stated that there was no foul language from either party. It was the verbal evidence of Mr Kernaghan, that Mr Finlay was making conciliatory remarks to the applicant. It was also the evidence of Mr Kernaghan that it was only after the head butt that punches were thrown with Mr Finlay seeking to block the blows whilst retreating in a semi circular fashion. Whilst the applicant stated that it was an accident and not intentional I am unable to find any extenuating circumstances that existed that gave reason for his actions on that day. 94The result of the applicant head butting Mr Finlay was that he was terminated from his position from the respondent for whom he had worked for over twenty years. A considerable period of time. Attached to the statement of Ms Gilliver-Smith were a large number of correspondence/reports concerning the applicant during his employment with the respondent. These correspondence/reports covered incidents of the applicant's unacceptable behaviour with fellow employees and the general public and failure to follow policies and procedures. Also placed into exhibits were correspondence of praise of the applicant and certificates of various courses of achievement. 95The respondent through correspondence terminating the applicant stating that by his actions on 28 January 2011 he had seriously breached the respondent's Code of Conduct detailing the particular sections so breached being the Key Principles and sections of the General Conduct Obligations. I agree that by his actions he did breach the respondent's Code of Conduct. 96In GJ Coles & Co Ltd v Shop Distributive & Allied Employees' Assn of NSW (1983) 6IR 42, wherein a Full Bench of this Commission stated at p44: "In our opinion an employee who strikes another employee in the workplace will normally be guilty of serious misconduct justifying summary dismissal." In AWU-FIME Amalgamated Union v Queensland Alumina Limited (1995) 62IR 385, wherein Moore J after reviewing several decisions held at 393: "...generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable." 97In summary I find that the applicant did intentionally head butt Mr Finlay. Such an action in the circumstances can not be tolerated and it is my finding that his termination by the respondent was neither harsh, unreasonable or unjust. 98I therefore dismiss this application for unfair dismissal. This matter is now concluded. D.RITCHIE 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. Decision last updated: 10 August 2011