Morris and Boral Cement Limited [2013] NSWIRComm 1014

Industrial Relations Commission New South Wales Medium Neutral Citation: Morris and Boral Cement Limited [2013] NSWIRComm 1014 Hearing dates: 07 & 08 May 2012; 28 & 29 May 2012; 25 & 26 June 2012; Submissions - 15 August 2012 Decision date: 26 April 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair dismissal; Legislation Cited: Industrial Relations Act 1996 Blue Circle Southern Cement Ltd (NSW) Enterprise Agreement 2010 Cases Cited: Blythe Chemical Limited v Bushnell (1933) 49 CLR 66; Gorman & BHP Integrated Steel Division [2000] NSWIRComm 1079 Category: Principal judgment Parties: Applicant: Australian Workers' Union, Port Kembla, South Coast and Southern Highlands Branch Respondent: Boral Cement Limited Representation: Mr C Nikolovski (Applicant) Mr N Chadwick (Respondent) File Number(s): IRC 1876 of 2011

DECISION 1Mr Clint Morris, 36, was employed by Boral Cement Limited ("Boral") at its Marulan South plant. He commenced his employment as a Lime Plant Bagger on a full time basis in August 2004. Prior to that time he had been employed as a casual from about June 2003. 2On 9 December 2011, Boral terminated Mr Morris' employment with a payment to Mr Morris of four weeks' pay in lieu of notice. The letter of termination relevantly stated: The decision to terminate your employment has been made as a result of an incident involving your supervisor, Robert Young, on Wednesday 7 December 2011 in which your actions and behaviour were deemed to be abusive, threatening and intimidating. In arriving at the decision to terminate your employment, the Company has taken into account your employment history, which includes several warnings for inappropriate conduct and behaviour and a final written warning given to you on 15 September 2011. 3Mr Morris, with the assistance of his union, the Australian Workers Union Port Kembla, South Coast and Southern Highlands Branch (the AWU), challenged his dismissal as being "harsh, unreasonable or unjust" and filed an application for relief in relation to unfair dismissal on 14 December 2011.