Bounour v The Spanish Club Ltd, 94 IR 173

APPLICANT Mr P Ginters of Counsel SOLICITORS Colin Daley Quinn LEGAL REPRESENTATIVES: RESPONDENT Ms M Sneddon of Counsel SOLICITORS Holman Webb

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Application by Manoj Kumar re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an arbitrated decision upon an application by Mr Manoj Kumar ("the applicant"), for relief from his alleged unfair dismissal by Valuca Pty Ltd ("the respondent"), on 24 May 2000. The application was brought pursuant to s84 of the Industrial Relations Act 1996 ("the Act"). 2 The respondent employer is a manufacturer of plastic mouldings. Mr Kumar was employed as a shift supervisor in the plastics section and commenced employment in October 1992. His base salary, at the time of dismissal, was $976.60 per fortnight plus shift allowance. There was no dispute as to the applicant's quality of workmanship or the value of his skills to the employer. On 29 May, five days after his dismissal, Mr Kumar secured alternative casual employment at $13.71 an hour. 3 The dismissal of the applicant was a direct consequence of a physical altercation with another employee on 23 May 2000. Mr Kumar claimed he was attacked by the other employee, Mr Sash Trajcevski, after he (Mr Kumar) "chipped" him for using the ladies' toilet. There were no witnesses to the incident. However, relying on four previous incidents of alleged violent behaviour, the employer, through the Managing Director, Mr Derek Brown, concluded that Mr Kumar must have been the aggressor. He described this fifth incident as the "last straw" (T.p1). 4 In conciliation proceedings, on 31 July 2000, both parties appeared unrepresented.

Mr Brown maintained that there would be no offers of settlement and that he had available two affidavits and three witnesses to support his decision to dismiss Mr Kumar - presumably witnesses to the earlier incidents. Mr Kumar told the Commission that this was the first time he had heard of the four previous incidents. Nevertheless, he wished to have his application determined. He was particularly concerned with his loss of entitlement to accrued long service leave.

The Commission raises these matters in a preliminary way, as they serve as a useful backdrop to the substantive hearing which the Commission listed for 23 October 2000. 5 Unfortunately, on this occasion, the hearing was aborted due to the applicant's failure to serve his affidavit on the employer, in breach of the Commission's earlier directions. It had, however, been filed with the Registry a month earlier; albeit a day late. Mr Kumar did not understand that "file and serve" meant serving on the employer. 6 Ms Sneddon of Counsel, now appearing for the respondent, submitted that the respondent had not filed its evidentiary material because of the applicant's failure to comply with the Commission's directions. To save the hearing date, she proposed to lodge her evidentiary material forthwith and for the hearing to proceed. The practical effect of this submission would have resulted in the unrepresented Mr Kumar being confronted with evidence about which he had no notice. Moreover - as it subsequently emerged - it was evidence about which he claimed to have no knowledge. This evidence was directed, inter alia, to the four earlier alleged incidents. 7 The Commission noted that the respondent had made no contact with the Commission, prior to the hearing, to complain of the applicant's default of directions. I reminded both parties of what was said by a Full Bench of the Commission in Bounour v The Spanish Club, 94 IR 173, in respect to non compliance with the Commission's directions: It is imperative that parties to proceedings before this Commission comply with directions designed to facilitate the efficient and effective determination of matters before the Commission. Absent any proper explanation, any party in default of the direction will run the risk of a sanction imposed by the presiding member of the Commission.

8 There is one aspect of these procedural difficulties about which I feel bound to comment - as I did at the time. The respondent was legally represented; Mr Kumar was not. While I accept the default of the Commission's directions arose through the applicant's failure to serve his evidence on the respondent, this does not mean the respondent should sit on its hands and do nothing until the day of hearing. Complaining about the applicant's default on the day set for hearing is simply not good enough. 9 In the event of default of directions, there is, in my opinion, a duty on the legal profession - particularly where the other side is unrepresented - to contact the Commission and have the matter relisted for further directions. This is even more important when, as happened here, a default will jeopardise the dates set for hearing. Apart from wasting the Commission's time, and incurring unnecessary costs, such circumstances delay other cases where parties have diligently complied with the Commission's directions. It is trite to observe that compliance with directions is required to ensure an effective and efficient determination of the Commission's case list. It is a matter of good case management.

10 Nevertheless, it would have been a miscarriage of justice if the Commission acceded to Ms Sneddon's submission. I therefore reluctantly adjourned the hearing until 22 November 2000, at which time the applicant was represented by Mr P Ginters of Counsel. 11 Although the applicant's case was presented first, in view of the onus on the employer to prove the misconduct, it is convenient to deal with the respondent's evidentiary case followed by the applicant's defence of the allegation.

12 Mr Derek Brown was the respondent's principal witness. He is the Managing Director of Valuca Pty Ltd, a manufacturer of plastic mouldings.

Mr Brown deposed that he was aware of a number of occasions since 1994, where the applicant had been involved in altercations or arguments with co-workers. He had made file notes of each occasion and included them in the applicant's personal file.

Mr Brown attached each file note to his affidavit and said that after the fifth incident, involving the applicant and Mr Trajcevski, he dismissed Mr Kumar for " repeatedly fighting in the workplace ". 13 I recount each of the incidents as recorded by Mr Brown:

Mr Brown notes that he was told by Arthur Allan, the plastics supervisor, that Mr Kumar had a fight in the parking lot with another employee, a Mr Wu. The reason for the fight was unknown. Mr Brown concluded that, as it was outside working hours, no action would be taken. He accepted it was hearsay. Mr Kumar was not interviewed, nor was he told a file note had been placed on his personal file.

At the company's Christmas barbecue, a Chinese worker, cooking the BBQ, poured beer over the meat. Mr Kumar took exception to this and abused the cook. He told him he would meet him in the car park after the party (presumably for a fight).

When told of the incident, Mr Brown told Mr Kumar to " pull his head in " and " get with the spirit" (of the season). However, Mr Kumar continued to act in a threatening manner and Mr Brown told Mr Sid Straney to escort him off the premises. No further action was taken, although a file note was placed on Mr Kumar's personal file. He was not shown the note.

Bruce Parr, a senior manager, claimed he was verbally abused and threatened by Mr Kumar with a piece of wood.

Mr Brown convened a meeting of both men. Mr Kumar gave evidence that he had approached Mr Brown after Mr Parr had called him a " black bastard ". Mr Kumar admitted abusing Mr Parr. Mr Parr said Mr Kumar was lying.

Mr Brown notes that Mr Kumar admitted that Mr Parr had not called him a " black bastard ". Mr Brown accepted Mr Parr's version of events when he wrote " I knew Mr Kumar was lying ".

Both men agreed to forget about the incident and shook hands.

Mr Brown said he told Mr Kumar he was getting tired of his behaviour and he should do his job and work together with all staff.

Mr Kumar was not shown the file note of the meeting.

Another employee, Mr Steven Ledgwick, complained that Mr Kumar had become abusive after he asked him to change the blade on the hand saw in the factory. As he was working on another job at the time, Mr Ledgwick said he would do it when he finished. This response prompted Mr Kumar to throw the saw blade across the workshop and abuse him.

Mr Kumar denied throwing the blade. However, he could not explain how the blade had become bent and twisted.

Mr Brown told Mr Kumar this was another of his temper related "incidents" and if there were any further displays of this type he would be " removed from employment ".

The Trajcevski Incident - 23 May 2000 14 Mr Trajcevski reported Mr Kumar's attack on him to Mr Brown at 8.00am on 24 May. He said that after he had accidentally used the ladies' toilet in the plastics section the previous day, Mr Kumar started to abuse him. He went back upstairs and Mr Kumar followed him, continuing the abuse. At 6.00pm, as Mr Trajcevski left his bench to bundy off, he said Mr Kumar accosted him, pulled and tore his shirt and punched him to the ground. Mr Trajcevski said he didn't want to fight. He had punched Mr Kumar so he could get away from him. Mr Trajcevski asked Mr Brown if he could go to the doctor as his left hand was sore. Mr. Brown agreed. Mr Brown asked the supervisor, Mr Tan, if he saw what had happened. Mr Tan said he saw Mr Kumar come up to the assembly area shouting at Mr Trajcevski, but he did not witness any physical altercation.

Mr Brown interviewed Mr Kumar later in the day. Mr Kumar said he queried why Mr Trajcevski had used the ladies' toilet. Mr Trajcevski started to argue with him and then kicked him. Mr Kumar punched him back and Mr Trajcevski fell to the ground. Mr Trajcevski got up and tried to punch Mr Kumar, but missed. Mr Kumar acknowledged following Mr Trajcevski upstairs, but claimed he only wanted to report him to his own supervisor.

Mr Brown asked Mr Kumar to explain his violent behaviour. Mr Kumar did not respond. Mr Brown notes that he told Mr Kumar of the employer's obligation to provide a safe work environment for all employees. Notwithstanding Mr Kumar's personal circumstances, he asked if there was any reason why he should not be dismissed.

Mr Brown told Mr Kumar he regretted having to dismiss him, but he could not go through life threatening people.

Mr Brown said Mr Kumar acknowledged that there had been four other similar incidents. Mr Brown asked if he had anything to say. Mr Kumar said no. 15 In cross examination, Mr Brown said he accepted Mr Trajcevski's version of events because "John (Mr Kumar) is a pathological liar. Everything he says is a lie" (T.p38).

Mr Brown was unsure of when Mr Trajcevski had left the respondent's employ, but he was given a week's notice, which was worked out (T.p44). 16 Mr Sash Trajcevski provided an affidavit and oral evidence. Attached to his affidavit was a statement of his version of events on 23 May 2000.

He stated that at about 5.55pm, he went downstairs to use the toilet. He asked Mr Kumar which one to use, and Mr Kumar pointed to the ladies. He went in, making sure there was nobody in the toilet. When he emerged, Mr Kumar became abusive and asked him for a fight.

Mr Trajcevski went upstairs with Mr Kumar following him. Mr Trajcevski's supervisor told Mr Kumar to go downstairs, which he did. When Mr Trajcevski went to bundy off, Mr Kumar followed him and pushed him from behind. When he turned around Mr Kumar punched him in the face. Mr Trajcevski said he tried to protect himself by pulling his jumper over his face. When he broke free, he ran to the car park with Mr Kumar still following him. He jumped into his car and took off. 17 In oral evidence, Mr Trajcevski accepted that he wrote his statement some time after the actual incident.

Mr Trajcevski denied swearing and abusing Mr Kumar. He first denied throwing any punches, but accepted he did when shown Mr Brown's record of interview. He also acknowledged kicking Mr Kumar in the shoulder.

Mr Trajcevski said he was not dismissed for the fight but because " his time had come to an end ". He continued to work through June, but couldn't recall when he actually finished up. 18 Ms Sneddon accepted that it was the respondent's onus to prove misconduct. Violence in the workplace is sufficient grounds for dismissal for misconduct.

Having heard the evidence of the applicant and Mr Trajcevski, it is Mr Trajcevski's version of events which should be preferred; particularly as it accords with Mr Brown's contemporaneous file notes.

Ms Sneddon submitted that, like the respondent, the Commission should take account of Mr Kumar's history.

The respondent, Ms Sneddon submitted, at no time condoned the applicant's behaviour. The decision to dismiss him was very difficult, as he was a valued member of the workforce. While the 23 May incident was the " last straw ", it would have been sufficient, of itself, to justify dismissal. Mr Kumar was a supervisor who should have known better. He had not sought to extricate himself from the fight; in fact he followed Mr Trajcevski upstairs to continue it.

Ms Sneddon explained that the respondent did not bring the other witnesses to the earlier incidents because of the operational needs of the company.

19 Mr Kumar's version of the incident was that about 5.45pm, Mr Trajcevski, who worked in the assembly area, came into the plastics section and asked which toilet to use. Mr Kumar told him not to use the ladies' toilet; but Mr Trajcevski did. When he came out, Mr Trajcevski started swearing and abusing him. Mr Kumar went upstairs to complain to Mr Trajcevski's supervisor. Mr Trajcevski was yelling, kicking boxes and threatening him. As Mr Kumar came downstairs, Mr Trajcevski chased him down, kicked him in the shoulder and threw punches. Mr Kumar threw one punch and Mr Trajcevski either fell, or slipped on the floor. He got up and started punching him again, saying he will get him (Mr Kumar) sacked. Mr Kumar claimed he was only acting in self defence. 20 The next day, Mr Kumar commenced work at 3.30pm. At about 4.00pm, he was called to Mr Brown's office. Mr Kumar related his version of the incident to Mr Brown. Mr Brown told him he was a violent person and it was unacceptable for a supervisor to fight in the workplace. Mr Brown asked him why he should not be dismissed. While acknowledging it was illegal to fight in the workplace, Mr Kumar said he had not started the fight. Nevertheless, he was dismissed on the spot.

Other Incidents 21 Mr Kumar denied ever having a fight with Mr Wu in the carpark in 1994; moreover, he said he didn't even know who Mr Wu was.

Mr Kumar denied an incident at the 1995 Christmas barbecue in which it was alleged he challenged another employee to a fight and told other staff he was going to meet the cook in the carpark. He denied being escorted off the premises. He said, in fact, he remained at the barbecue for a further hour.

He also denied threatening and abusing another employee, Mr Parr, in late 1999. He agreed there was an incident in which Mr Parr called him a " black bastard ". He raised the issue with Mr Brown.

Mr Kumar denied throwing a band saw blade in another incident on 17 February 2000. He denied abusing Mr Ledgwick when he was unable to immediately change the saw blade. He said that he was not warned about this incident. Indeed, it was he who broached the subject with Mr Brown. 22 Mr Ginters referred to the relevant authorities dealing with serious misconduct, the onus of proof and fighting in the workplace - North v Television Corporation Ltd (1976) 11 ALR 599, Crosland v John Fairfax & Sons Pty Ltd, 3 July 1959, 14 IIB 610, AWU-FIME v Queensland Alumina Ltd (1995) 62 IR 385, Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 and Wang v Crestell Industries Pty Ltd (1997) 73 IR 454. 23 Mr Ginters was particularly critical of the basis upon which Mr Brown had made his decision to dismiss the applicant. He submitted that the applicant denied the incidents in Mr Brown's file notes; the incidents were third hand reports and Mr Kumar was never shown, nor was he aware of, what Mr Brown had recorded in the file notes. Significantly, the respondent failed to adduce any evidence from any of the persons who were said to have witnessed these earlier incidents or had been the subject of Mr Kumar's alleged violent behaviour (Jones and Dunkel (1959) 101 CLR 298).

One might wonder, Mr Ginters asked rhetorically, why Mr Kumar had not been dismissed earlier, if these incidents were true? The respondent's reasons for dismissal hardly sit comfortably with the glowing reference provided by Mr Brown to Mr Kumar in May 1999. 24 Mr Ginters strongly argued that the respondent's only first hand witness, Mr Trajcevski, was a person of little credit. His evidence wavered, was inconsistent and improbable. It was designed to falsely portray Mr Kumar as the aggressor. Mr Trajcevski had "got in first" to blame Mr Kumar and he had to admit, in cross examination, that he punched and kicked Mr Kumar. 25 Mr Ginters submitted that, by his own admissions, Mr Brown relied on hearsay and had prejudged the 23 May incident with his opinion that Mr Kumar was a "pathological liar".

Mr Brown's response to the incident was to unreservedly accept Mr Trajcevski's version of events. Despite Mr Trajcevski admitting punching and kicking Mr Kumar, he was not dismissed or even disciplined. Mr Trajcevski said he was kept on for a few weeks and left because his contract ended. Mr Brown was unsure how long Mr Trajcevski had remained employed. Mr Ginters submitted that this demonstrated the inconsistent punishment applied by the respondent and the unfairness of Mr Kumar's dismissal. 26 As an alternative submission, Mr Ginters put that, by condoning the applicant's behaviour, the employer had waived its right to take action against the applicant in relation to the past incidents. See A/asian Transport Officers' Association v Department of Motor Transport (1988) 25 IR 235.

27 A number of authorities are pertinent to the principles the Commission is to rely on when considering an employee's dismissal arising from a fight, or physical altercation, in the workplace.

The Commission, as presently constituted, had occasion to refer to these authorities in Samaha and The Maronite Sisters of the Holy Family (unreported) Sams DP, Matter IRC6598 of 1999, 8 September 2000. It is appropriate to cite the cases again and identify the relevant principles which can be distilled from them. 28 In Yew v ACI Glass Packaging, 72 IR 200, Wilcox J said: These considerations justify an employer taking a serious view about fighting in the workplace. Especially where the fight takes place in the vicinity of heavy equipment or industrial products, as in this case, there is a serious risk of injury to one or both combatants. But, as Moore J recognised, it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a "no fighting" policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence.

29 In AWU-FIME Amalgamated Union v Queensland Alumina Limited, Moore J said: What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.

30 Redman, C in Health and Research Association (NSW) v Wollongong Hospital, 29 IR 235, said at p242: Prima facie the hospital dismissed Mr Ready and Mr Hope because it was unable to determine the identity of the aggressor. In reality the dismissals of Mr Ready and Mr Hope conveniently resolved the hospital's dilemma regarding what it should and could do to neutralise the well-known feud between the two men. Any person is entitled to defend him or herself against violent attack and the evidence brought forward indicates that this is what Mr Ready did. It is untenable to suggest that Orana House is by virtue of its function such a unique place as to justify the dismissal of an employee who acts reasonably in his or her own self-defence against violent attack and I reject such a proposition.

31 After reviewing a number of authorities, an appeal bench of the Australian Industrial Relations Commission in Fearnley v Tenix Defence Systems (unreported) AIRC Print S3557 said: We think these authorities support the view that in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to: - whether the terminated employee was provoked and whether he or she was acting in self defence; - the employer's need to establish and retain discipline amongst its employees; and

• the service and work record of the employee concerned.

32 From these citations, it seems to me that some general observations may be made:

1. Fighting in the workplace would, in the absence of extenuating circumstances, be grounds for dismissal.

2. The outcome in a particular case will depend very much on the relevant circumstances.

3. In investigating the circumstances, an employer should look behind the incident and examine its causes.

4. Merely participating in a fight will usually be insufficient to justify summary dismissal.

5. An employer should seek to establish whether an employee was provoked, or was acting in self defence.

6. A "no fighting" policy should be applied fairly and consistently and be designed to ensure a safe working environment for all employees.

7. An employer should take into account an employee's period of service, work record and whether the employee was in a supervisory position.

33 In the absence of witnesses, and where each party claims to have been provoked or was acting in self defence, I do not underestimate the employer's difficulties in investigating a fight in the workplace. It may well be nigh on impossible to establish conclusively who was at fault.

In resolving this dilemma it does not follow that the employer can simply take the easy option and dismiss both employees. Moreover, when the investigation is inconclusive, and one employee is dismissed and the other is not, great care should be taken in identifying the basis upon which the employer arrived at its decision. There will invariably arise, as was evident here, other factors which the employer should take into account. 34 This leads conveniently to considerations concerning the standard of proof in such circumstances.

35 The requisite standard this Commission must apply is the civil standard, i.e. on the balance of probabilities.

A useful discussion of how this standard is to be applied in Pt 6 ch 2 proceedings is to be found in Four Sons Pty Ltd v Lamsiripothong (unreported) Wright P, Hungerford J, Cambridge C, IRC6337 of 1999, 20 March 2000. There a Full Bench considered inter alia , the civil standard of proof: In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court affirmed the principle that there is only one standard of proof applicable in civil matters, namely, on the balance of probabilities. However, it was held that the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved. Dixon J stated (at 362): The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Similarly statements are made in other cases such as M v M (1988) 63 ALJR 108 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. In the last cited case, Mason CJ, Brennan , Deane and Gaudron JJ stated (at 449 - 450): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud (See, eg, Hocking v Bell (1945) 71 CLR 430, at 500; Rejfek v McElroy (1965) 112 CLR 517, at 519 - 521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ( Briginshaw v Briginshaw (1938) 60 CLR 336, at 362; Helton v Allen (1940) 63 CLR 691, at 701; Hocking v Bell (1944) 44 SR (NSW) 468, at 477 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Rejfek v McElroy (1965) 112 CLR, at 521; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at 539 or cogent ( Rejfek v McElroy (1965) 112 CLR, at 521) or strict ( Jonesco v Beard [1930] AC 298, at 300; Briginshaw v Briginshaw (1938) 60 CLR, at 362; Helton v Allen (1940) 63 CLR, at 711; Hocking v Bell (1944) 44 SR (NSW), at 478 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Wentworth v Rogers (No 5) (1986) 6 NSWLR, at 538) proof is necessary "where so serious a matter as fraud is to be found" ( Rejfek v McElroy (1965) 112 CLR, at 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct (See, eg, Motchall v Massoud [1926] VLR 273, at 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (footnotes incorporated)

The Briginshaw v Briginshaw principle is now embodied in s 140 of the Evidence Act 1995. That section provides: 140. Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

The principle in Briginshaw v Briginshaw has been applied by the Commission in unfair dismissal cases when considering allegations against an employee of serious misconduct involving allegations of criminal activity. For example, in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464, the Full Bench said: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.

Nevertheless, the Full Bench made it clear that: … the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement.

See also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 304 and Bigg v NSW Police Service (1998) 80 IR 434 at 456.

Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings ), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. In this case, the finding made by the Commissioner was that "the termination of the [respondent's] employment was not unconnected with the raising of complaints by him about the alleged work-related harassment".

36 The passage just cited also highlights the well held principle that, in dismissals for misconduct, the onus is on the employer to prove such misconduct according to the requisite level. Having done so, the Commision may make a positive finding of misconduct which justified dismissal.

See Wang v Crestell Industries , 73 IR 454; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 and Franklins Limited v Webb , 72 IR 257. 37 A few words should be said about a particularly crucial consideration in dismissals for misconduct.

Summary dismissal for misconduct has serious immediate and long term implications for the employee. These implications were discussed in Franklins Limited v Webb , 72 IR 257, at p261:

We consider that the significance of decisions by employers to dismiss employees in circumstances such as occured here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

See also my comments in Standley and Electronics Boutique Australia Pty Ltd (unreported) matter IRC4516 of 1998, 18 March 1999 and Hill and the Commissioner for Public Employment - Department of Juvenile Justice , (unreported) Matter IRC6474 of 1999, where I referred to the serious implications for employees dismissed for alleged misconduct.

Despite Mr Kumar's alleged record and his dismissal for misconduct, it hasn't impeded him obtaining alternative employment. Indeed, he secured alternative employment a few days after dismissal - albeit in a casual capacity. 38 I turn then to the evidence adduced in the proceedings. 39 The Commission finds the evidence adduced by the respondent, far from convincing. I am left with sufficient doubt as to be unable to make conclusive factual findings. This is so because the respondent failed to bring evidence which it claimed to have. I shall say more about this shortly. 40 On the other hand, the Commission has reservations with Mr Kumar's version of events of the incident of 23 May. I am not convinced that he was provoked and acted in self defence. However, I am unable to make any positive findings in this regard. That Mr Kumar participated in a fight - there can be no doubt; that he was a supervisor and was aware that fighting is "illegal" is not disputed. 41 Despite my reservations, I am not satisfied that the employer has met the requisite standard of proving, on the balance of probabilities, that Mr Kumar was guilty of the misconduct which led to his dimissal. 42 In my opinion, Mr Trajcevski's evidence should be treated with caution. He sustained an injury which is probably consistent with him hitting Mr Kumar. Mr Trajcevski is an acknowledged martial arts expert. It seems probable that he kicked Mr Kumar in the shoulder. In the witness box, Mr Trajcevski was evasive and his demeanour was such as to strongly suggest to me that he was being less than truthful. His lack of credit was particularly illustrated when he twice denied throwing any punches but, when shown Mr Brown's record of interview, was forced to admit that he had thrown punches. 43 It is patently clear that the employer relied on Mr Kumar's "past form" as the only basis for a presumption that he must be guilty of being the aggressor on 23 May. There were no witnesses. Mr Brown's answer to the question of whose version of events he believed, was Mr Kumar was a "pathological liar". It followed, on this logic, that Mr Trajcevski was to be believed. Whether this view was correctly held is not the point. To my mind, it was sufficient to colour Mr Brown's obligation to conduct an independent inquiry into the incident. Having prejudged the outcome, Mr Brown guaranteed the process miscarried.

Unfairness is also apparent in the different consequences for both participants in the fight. Mr Trajcevski continued to work and, on his own evidence, ceased work a few weeks later for reasons unrelated to the fight. Mr Kumar, on the other hand, was instantly dismissed. Mr Brown had evidence that both had been involved; but their punishments were disproportionate. I had cause to consider the matter of disproportionate penalty in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson, and Australian Co-Operative Foods Limited (unreported) IRC7056 and 7059 of 1999, 18 October 2000, and found as follows: In view of this, and the evidence of general skylarking known to have taken place in the workplace, and Mr Van Doorn's admitted history of involvement in some of it, the dismissal decision based on accepting Mr Van Doorn as a victim, rather than a "willing participant", was not reasonably open to the employer. It was unjust. Indeed, the full brunt of the responsibility was sheeted home decisively and irrevocably to the applicants. Others who were involved including Mr Van Doorn and, to a lesser extent Mr Toff (who found it amusing) seemingly escaped scott free. ... There is no evidence that any of these employees were rebuked, let alone disciplined, for not reporting the incident. If the matter was as grievous as Mr Ludeke contends, then surely there was an obligation on all those who knew about it, to report it to Management. The failure by Management to take action against any of these employees invites me to again observe that the applicants were the only ones decisively punished, when others, with at least some culpability, escaped scott free. 44 Accordingly, and not without some reluctance, the Commission determines that the evidentiary case prosecuted by the respondent cannot sustain, in law, a finding that Mr Kumar was guilty of the misconduct alleged against him.

To find otherwise would be contrary to the well settled principles determined by this Commission in cases of alleged misconduct. 45 As I earlier observed, it seems inexplicable to me, if the employer's decision to dismiss was based on Mr Kumar's past record, that not one of the persons involved in the earlier incidents were called to give evidence.

These incidents directly involved seven other persons:

ii) Mr Tan - Mr Trajcevski's supervisor iii) Mr Sid Straney - said to have escorted Mr Kumar from the Christmas barbecue

vi) Mr Parr (who even attended the disciplinary meeting)

At least two of them are still employed by the company. 46 Ms Sneddon made a valiant, but futile, attempt to justify this paucity of evidence, by reason of the employer's business needs requiring the employees' attendance at work. With respect, this is an extraordinary submission.

Mr Ginters pressed upon me a Jones and Dunkel inference arising from the respondent's failure to bring evidence from any person directly involved in the earlier incidents.

This submission has significant force. I am readily able to draw an adverse inference by the respondent's failure to bring such evidence. Indeed, if ever a student of industrial law wanted a classic example of the effect of the Jones and Dunkel principle in a practical evidentiary setting, this case would be it.

47 Mr Kumar was interviewed and dismissed about 4.00pm on 24 May 2000.

Mr Brown's evidence was that a meeting of the Occupational Health & Safety Committee was held earlier in the day, after Mr Trajcevski had complained at 8.00am. Mr Brown said the Committee agreed that Mr Kumar's services should be terminated, and he did so when the applicant came to work later in the evening (T.p37).

The Commission expresses concern that no minutes of the O H & S Committee were put in evidence and no member of the Committee was called to give evidence. 48 Even so, Mr Brown, acting with the imprimatur of the O H & S Committee, had determined to dismiss Mr Kumar even before Mr Kumar was asked to explain his version of the fight with Mr Trajcevski. This is entirely consistent with Mr Brown's extraordinary statement at p38 of transcript "John is a pathological liar. Everything he says is a lie". On any view of it, Mr Brown had prejudged the applicant and made up his mind to dismiss Mr Kumar without affording him the basic principle of natural justice. It was most irregular. It tainted the investigative process and rendered it's outcome nugatory. 49 Obviously, I have some reservations about the outcome in this case.

Mr Kumar is hardly an exemplary employee. He was not a shining example of a responsible supervisor. Even on his own version of what happened in the various incidents, it seems to me that Mr Kumar went out of his way to antagonise other employees over trivial matters.

His aggressive behaviour and verbal abuse is unacceptable behaviour for any employee; let alone a supervisor. On the other hand, the evidence, such as it was, could not justify his summary dismissal. The correct procedure for the employer to have taken was to give Mr Kumar formal warnings of poor performance, allow a period of time to improve, and if no improvement occurred, terminate his employment with reasonable notice. 50 In all the circumstances, and relying on Byrne & Anor v Australian Airlines (1995) 185 CLR 310, the Commission is prepared to make a finding that the applicant's dismissal was "unjust" within the meaning of Pt 6 ch 2 of the Act. In view of my reservations earlier described, it would be impractical to order reinstatement or re-employment. I note neither form of relief is sought. I propose therefore to make a compensatory order. In determining an appropriate level of compensation, I have taken into account, inter alia, such matters as:

1. As a supervisory employee, the applicant had a higher obligation and responsibility to eschew workplace conflict and not engage in provocative and unacceptable conduct in the workplace.

2. The applicant acknowledged that he knew fighting in the workplace was "illegal".

3. The applicant secured alternative employment shortly after his dismissal.

51 Pursuant to s89(5) of the Industrial Relations Act 1996, the Commission orders that:

1. Valuca Pty Ltd shall pay to Mr Manoj Kumar an amount of compensation equivalent to six (6) weeks' pay at the rate of $488.30 per week.

2. The above amount is to be paid within twenty-one (21) days of today.

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