CASES: Dickinson v Woolworth Safeway Pty Ltd

had been smoking" or "was stoned". Other evidence relied on by the respondent in concluding that the allegations against the applicant and his colleague Jobling were well founded include: (a) an incident on the afternoon of 28 November 1995 in which Jobling acted in an uncharacteristically aggressive fashion towards Patidis when Jobling allegedly tripped over a stack of frames located against a wall in the area where the frames are usually stacked by Patidis with adequate provision for safe pedestrian passage past the stack; (b) the observation by the factory supervisor Mathew John Hetherington (Hetherington) after he had been alerted to the possibility that both men had been smoking marijuana during the lunch break that the applicant's eyes were red and half shut at about 4.30 pm. WITNESSES The respondent carried the initial burden of proving that there was a valid reason for terminating the applicant's employment on the morning of 29 November 1995. It called the following witnesses - (a) Patidis, employed by the respondent since 6 June 1995, initially in the urethane section of the respondent's factory, but now employed as a material handler. Patidis was the respondent's principal witness inasmuch as he claimed to have been told by the applicant following the lunch break on 28 November 1995 that he had either been smoking or was stoned; (b) Hetherington, the factory supervisor who was instrumental in notifying the respondent's management of the allegation and who participated in the final interview in which the applicant and Jobling were terminated. Hetherington was also the person who saw the applicant at approximately 4.30pm after being told that the applicant had been smoking marijuana at lunch time. It was his observation then that the applicant's eyes were red and half shut; (c) Brendan Clive Bosse (Bosse), who is a welder employed by the respondent for some 10 years. Bosse is also the shop steward for the Federated Furnishings Trades Union. Bosse was present at the final interview at the request of the applicant; (d) David John Fisher (Fisher), who is a director and the general manager of the Respondent for some 15 years. Fisher is a mechanical engineer by training and has worked in the company's polyurethane plant both operating the machinery and managing that area's operation. It was he who decided to terminate the applicant's employment; and (e) Shelley Loren Mullins (Mullins), who is the respondent's personnel manager, on maternity leave at the time the incident with the applicant occurred. Mullins' evidence was only directed to explaining the unavailability of a competent and compellable witness, Rhonda Harries, who was acting in Mullins' role when the allegations were investigated and the applicant was terminated. It was common ground that Harries was the person who interviewed both men in the presence of Bosse and Hetherington and ultimately conveyed to them the respondent's decision to terminate their employment. Mullins' evidence was that after the directions hearing in March 1996, she spoke by telephone to Harries who was then no longer employed by the respondent. Her uncontested evidence is that Harries was, during that telephone conversation, notified of the June hearing date and agreed to attend to give evidence for the respondent. Some 48 hours prior to the hearing Mullins endeavoured to contact Harries to confirm her attendance at Court but was unsuccessful in making any contact. Her efforts to locate the witness included contacting family, friends and Harries' former boyfriend. Whilst with hindsight it may be said that the service of a subpoena on the witness in March would have enhanced the chances of securing her attendance at Court in June 1996, I am satisfied that the respondent took all reasonable steps to secure the attendance of the witness in circumstances where the witness had expressed a willingness in March to attend Court in June (see Evidence Act 1995 Dictionary Part 2 paragraph 4(1)(e)). The applicant gave evidence on his own behalf and also called: (a) Mathew Cory Jobling who was terminated on the same day as the applicant allegedly because he too was smoking with the applicant at lunchtime and may also have been stoned on his return to work for the afternoon; (b) Anthony James Chamberlain (Chamberlain), who is currently and was at the relevant time an employee of the respondent. It was common ground that Chamberlain was sitting in his van, proximate to the conversation which allegedly took place between the applicant and Patidis on the return to work of the applicant and Jobling following their lunch break. Chamberlain was not interviewed prior to the termination; and (c) Mark Albert Cunningham (Cunningham). Cunningham is another current employee who was in Chamberlain's van at the time it is alleged a conversation occurred at or near the van between the applicant and Patidis. On the witnesses' evidence and the applicant's evidence Patidis was either located in the van or next to it. Like Chamberlain, Cunningham was not approached for his version of events prior to termination; although if the evidence of both Chamberlain and Cunningham is accepted it is apparent that from late in the afternoon on 28 November 1995 they were aware of at least the allegation that the two men had been smoking marijuana during lunch time. Neither witness came forward to offer any assistance to the respondent or their work colleagues at any time prior to the termination interview even though they each believed the interview could result in the applicant being terminated. BACKGROUND The respondent manufactures specialised seating for sporting and entertainment venues both in Australia and overseas. It has a work force of between 140 and 150 employees at its Wantirna factory. It was common ground that the respondent's factory is a modern one with technically sophisticated equipment and processes. In the area in which Patidis, Jobling and the applicant worked metal frames are attached inside a dye and operators using sophisticated machinery inject or shoot polyurethane liquid into the seating frames. All the witnesses who were in a position to give evidence on this matter agreed that safety in the operation of the equipment in the polyurethane section of the plant is an issue because the foam like substance used in the process could cause serious injury and possibly death if, for example, it was accidentally sprayed into a person's mouth. The applicant and his witnesses all accepted the respondent's contention that the respondent's work site is an alcohol and drug free work site because of the potential harm the use during working hours of any performance inhibiting substances, such as alcohol or drugs, might cause, particularly, when operating the machinery. On the afternoon of 28 November 1995 the applicant's job was to operate the machinery and shoot foam. Jobling was not an operator on that afternoon but was acting as a jockey to another operator in circumstances where he was attaching and removing the frames from the dye. The applicant and his witnesses, as well as Patidis, all acknowledge that at some time or another they smoked marijuana and had had the opportunity to observe the behaviour of persons "stoned"; that is to say, persons showing the effects of the use of marijuana. They all appeared familiar with the jargon used in either describing the effects on a person who has used marijuana or in responding to a question which involved asking whether a person had been "smoking" or was "stoned". In other words it was understood, and this was confirmed particularly by the applicant in his evidence, that such a question including the question "are you stoned?" referred to the smoking of and affects of marijuana or, as the witnesses referred to it "dope", rather than referring to tobacco cigarettes and their effects. It was the applicant's case that he did smoke marijuana on social occasions from time to time, however, since commencing his employment with the respondent in June 1995 he had not smoked marijuana at all. He and Jobling were then friends the applicant having assisted Jobling in obtaining his position with the respondent and having further assisted in Jobling's training at the respondent's premises. Jobling too gave evidence that since commencing his employment with the respondent he had not indulged in any social smoking of marijuana and as far as he knew the applicant had not done this either. The evidence that neither man had smoked marijuana since they commenced their employment with the respondent was contradicted by Cunningham who not only agreed that it was common knowledge that they smoked marijuana, but also agreed that they talked at work about having in their own time smoked marijuana during the currency of their employment. To this extent Cunningham's evidence tended to corroborate the general allegations made by Patidis about the applicant's known smoking habits during the period of his employment. Guertner's home in Anne Road, Knoxfield is located some 7 to 10 minutes drive from the respondent's factory. He does not drive a motor vehicle and at the time of the incident relied on Chamberlain and his friend, Cunningham, to drive him to and from work in Chamberlain's van most days; although he said that from time to time Jobling did this. Jobling seemed surprised by any suggestion that he drove the applicant to work. This was just another instance of the many inconsistencies between the evidence given by the applicant and his witnesses. The lunch break at the factory is between 12.00 and 12.30pm. Two bells are sounded to alert the employees to return to their work. The first is sounded at about 12.28pm and the second at 12.30pm. On Wednesday 28 November 1995, according to the applicant and Jobling, they drove to the applicant's home in Anne Road, Knoxfield for lunch. The applicant's financee and child live with him at this address. It was said that it was not uncommon for the applicant to take Jobling and at times Chamberlain and Cunningham home with him for lunch. On this particular occasion when he arrived home the applicant and Jobling told the Court the applicant's financee was not at home and, because she was the only person with a key to the premises, they could not get in. Instead, at approximately 12.15pm they drove down Anne Road to a fish and chip shop located near the applicant's home and purchased lunch. Both men were able to immediately recall in evidence what they each purchased for lunch nearly eight months earlier. In the applicant's case he told the Court he ordered "...a couple of dim sims, a couple of potato cakes and a can of coke" which were consumed in Jobling's car. Jobling gave the same evidence giving me the impression that as with many other matters their responses and those of their other two witnesses, Chamberlain and Cunningham, had been the subject of some discussion between them all and possibly some collaboration on the evidence to be given in support of the denials of the applicant and Jobling. In cross-examination the applicant did eventually concede that he had "briefly" discussed the events of 28 November with Chamberlain and Cunningham. Chamberlain denied any discussion at all whereas Cunningham, who was the last witness to give evidence, was prepared to concede that there had been discussions with the applicant. The applicant told the Court that when he and Jobling returned to Jobling's car from the fish and chip shop and proceeded to work, he observed the vehicle's clock showing that it was approximately 12.23 pm. They arrived at the factory at approximately 12.27pm after the first bell had sounded. It is the respondent's contention that the first bell sounds at 12.28pm, however, the real question here is how it is that the applicant and Jobling ate their meals and managed the journey from the fish and chip shop in some four minutes when the time for the journey from the applicant's home in Anne Road was variously put between 7 and 10 minutes. When the applicant and Jobling parked Jobling's vehicle in the factory car park they alighted and on their return to the factory premises walked past Chamberlain's van in which he and Cunningham were seated in the driver and front passenger seats respectively. As I have already noted none of the applicant's witnesses could recall with any certainty where Patidis was sitting or standing when the applicant and Jobling approached Chamberlain's vehicle. Patidis' evidence is that at the relevant time, which he placed at approximately 12.25pm, he was sitting in Chamberlain's van behind Cunningham and observed the applicant and Jobling walking towards the van in a slow and loose sort of way. He also noticed when the applicant got closer to the vehicle that his eyes were glazed and he appeared to be swallowing repeatedly. Patidis told the Court that he had not only smoked marijuana before but he had also observed people who were stoned. To his mind the applicant's behaviour and appearance suggested to him that the applicant and Jobling were stoned on their return from lunch. Patidis also told the Court that he had been present on social occasions such as at a grand final day party in September 1995 celebrated by the applicant, Jobling, Chamberlain, Cunningham, Patidis and others at the applicant's home in Anne Road, Knoxfield. On that occasion Patidis alleges, against the blunt denials of the applicant and all his witnesses, that marijuana was smoked with various members of the party being stoned, including the applicant and Chamberlain. Because of the appearance of the two men and their unusual gait on 28 November 1995, Patidis believed that they were stoned. When they reached the van he alleges he said to the applicant through the van window either, "have you been smoking?" or "are you stoned?" to which query he received from the applicant the answer "yes". He took the response to be one which applied to both men. According to Patidis he was not surprised by this answer because he had seen these symptoms before in the work place after lunch; the suggestion being that he had seen the applicant stoned on other occasions after lunch. The applicant and Jobling agree that they both stopped at Chamberlain's van on the return to work with the applicant speaking first to Cunningham. However, the applicant denies being asked by Patidis whether he had been smoking or was stoned. Indeed, he denies admitting or engaging in any conduct of the kind alleged against him. He claims that Patidis asked him how he was going, to which question he "thinks" he replied "I'm stuffed". The reason for such a reply is that on that day he alleges he had the flu. It is important to bear in mind that it was the applicant's evidence that that was the first day he had been feeling unwell and on that same morning he allegedly told Hetherington, who denies this, that he was feeling unwell. Again it is important to remember that Hetherington on 28 November 1995 made the observation, after being told that the applicant was stoned at lunch time, that the applicant's eyes were red and half-closed when the applicant passed Hetherington's office late in the afternoon on 28 November 1995 prior to going home. In contrast to the applicant's evidence Jobling (who coincidently and for the first time at the hearing also alleged he was suffering from a sore throat on 28 November 1995), Chamberlain and Cunningham all claim that the applicant was suffering from the effects of flu for some days; not just on the day of the incident alleged. Chamberlain and Cunningham collected the applicant for work on the morning of 28 November 1995 at approximately 7.00am in Chamberlain's van. In his evidence-in-chief Chamberlain initially claimed that the applicant was "fine" when he collected him for work, however, after what was clearly a leading question from the applicant's counsel, Chamberlain's evidence changed with him suggesting that the applicant was actually suffering the effects of flu; namely a running nose, red eyes and a cough when collected for work on the morning of 28 November. Cunningham was also keen to describe the applicant's flu like symptoms over some days, making an earnest but unconvincing attempt to provide an explanation for the various physical symptoms observed by both Patidis and Hetherington during 28 November 1995. Following his termination on the morning of 29 November 1995 the applicant attended a medical practitioner and produced to the Court a medical certificate (Exhibit A3) dated 29 November 1995 stating that the applicant was then suffering from pharyngitis and was unfit for work from 29 November 1995 to 1 December 1995 inclusive. That the certificate was never provided to the respondent, even when the applicant wrote to the respondent on 18 December 1995 complaining about the fairness of the termination, is surprising. My understanding of the diagnosis is that it broadly relates to an inflammation of the throat. However, the medical certificate does little to advance the matter one way or another because it makes no reference to any medical condition suffered by the applicant on 28 November 1995 which could in any way be responsible for his red and half shut eyes, his loose and unusual gait following his return from lunch on 28 November and his running nose and cough described by his witnesses as being apparent from at least 27 November 1995. At hearing the applicant also sought to attribute his red eyes to irritation caused by fumes allegedly emitted in the area in which he worked in the respondent's plant. This allegation, as well as Jobling's allegation that his sore throat was caused by the emission of fumes at the plant, do not appear to have been raised at any time prior to the termination or hearing. I am satisfied that on balance there is no evidence that a problem with the emission of fumes did exist. No complaint was previously raised concerning the existence of fumes at such a level as to cause eye or throat irritation in that section of the plant and neither the applicant nor his witnesses were able to point to any occasion when such a complaint had been made in the past by any of them. Fisher, Patidis and Hetherington all worked in the same area on different occasions without, they said, experiencing or being made aware of the problem alleged. To my mind these allegations had the hallmarks of recent invention. At about 3.30 pm. on 28 November 1995 there was a contratemp in the polyurethane area when Jobling confronted Patidis over the stacking of chair frames. The respondent stacks the frames in an area along a wall to one side of the polyurethane section and has done so over a lengthy period. The evidence of Patidis, Hetherington and Fisher is that the frames were well out of the way of any pedestrian traffic. Jobling, who had been removing chair frames from the dye as part of his duties that afternoon, complained to Patidis that the frames stacked by Patidis had tripped him up. No-one witnessed any tripping up or fall by Jobling. On hearing raised voices Hetherington, who is also the safety officer, attended the area and found Jobling alleging that he had fallen over the frames. He was obviously agitated and appeared to both Hetherington and Patidis to be acting in a very loud and aggressive fashion. Jobling told Hetherington that if the frames were still stacked in the same place on the next day he would not attend work. This challenge prompted Hetherington to inform Jobling that if he did not want to work with the respondent that was okay and Jobling could go if he chose too. Jobling calmed down and Hetherington left to return to his office having formed the view that there was no safety issue because the frames were where they should have been with plenty of room to pass them safely. Jobling claimed that Hetherington had sworn at him and told him he need not come to work if he did not want to. This allegation was never put to Patidis who was present during their discussion. The weight of the evidence is in favour of their version of this particular event. Shortly after the abovementioned encounter Patidis went to see Hetherington and informed him that the applicant and Jobling had been smoking marijuana during lunch time; this, in his mind, being the reason for Jobling acting so aggressively. The news prompted Hetherington to telephone Rhonda Harries and subsequently meet with her, informing her of the matters conveyed to him by Patidis. It was part of the case run by the applicant that there was some pre-existing animosity between the applicant and Patidis because in about September 1995 the applicant had referred to Patidis as "Zorba", prompting Patidis to threaten to hit him. In context, however, it is apparent from the evidence of all the witnesses that there was no lingering ill-will between the two men, Patidis having been part of the party crowd at the applicant's home on grand final day in September 1995. On the evidence given to my mind, to attempt to explain Patidis' conduct in telling the employer that the applicant had admitted to having smoked marijuana at lunchtime by referring to any antecedent hostility between the two men exaggerates the consequences, if any, of the incident alleged. It was also the applicant's case that Patidis in reporting the alleged misconduct on the applicant's part to the employer was acting in retaliation for Jobling complaining about the stacking by Patidis of the chair frames against the wall. Again the weight of the evidence is against this conclusion being drawn because there was no history of conflict between Patidis and Jobling. If the incident on the afternoon of 28 November 1995 between Patidis and Jobling created any ill-will towards Jobling, it does not provide a plausible reason for Patidis reporting the applicant's alleged misconduct to the employer. What Patidis told the Court was that it was, he believed, common knowledge that the applicant smoked marijuana and boasted at work about this. Patidis had not said anything to the employer on any previous occasions until Jobling's unusually aggressive behaviour on the afternoon of 28 November 1995 created a concern in his mind about safety where both men appeared to him to have been stoned on their return to work from lunch. It was this observation, and the admission made by the applicant, which prompted his comment to Hetherington. It was further argued as part of the applicant's case that the applicant and Hetherington did not have a good relationship. Again the evidence did not support this conclusion. On the contrary it showed that there was social contact between the men and that the applicant along with Jobling had been invited by Hetherington to join his local football team. Accordingly, the evidence of both Patidis and Hetherington needs to be viewed in a context where there was really no apparent basis for either man's evidence being tainted by animosity or ill-will towards particularly the applicant. At approximately 4.30pm on 28 November 1995 Patidis met with Harries and Hetherington and told Harries what he had observed and heard. In giving his evidence it was apparent that from Patidis' point of view the look of the applicant and the way he walked, as well as the "yes" response to a question which had either asked the applicant if he had been smoking or if he was stoned, meant to Patidis' mind that the applicant was stoned. That Patidis held this view makes it more likely than not that the impression conveyed to Hetherington and Harries was that the applicant and Jobling were stoned in the sense that they were physically affected by the use of marijuana during the lunch break. Jobling drove the applicant home on the evening of 28 November 1995 but not before Hetherington observed at approximately 4.30pm, when the applicant returned his work card, that the applicant's eyes were red and half shut. Nothing was said to either the applicant or Jobling before they finished work on 28 November 1995. This seems to have come about because they had already left by the time Fisher instructed his staff to arrange a meeting with both men at 8.30 am in the office on the following day, 29 November 1995. Fisher gave evidence that he was attending a financial meeting in the respondent's board room late in the afternoon on 28 November when Harries interrupted that meeting to consult him on this matter. At the hearing, after hearing some preliminary argument from both parties, I permitted the respondent and its witnesses to give oral evidence of representations made by Harries to them or in their presence, subject to an opportunity to make final submissions on the weight I should give this evidence where Harries was not available as a witness. This evidence was allowed to be called because, amongst other things, Mullins' evidence satisfied me that the witness was not available. Further, it was allowed despite the respondent's failure to comply with section 67 of the Evidence Act 1995 which provides a means by which evidence may be adduced on the giving of reasonable notice in writing to other parties of a party's intention to rely on hearsay evidence. The fact that a number of other witnesses were present and were called to give evidence of the oral representations made by Harries to the applicant at the final interview satisfies me that this is an appropriate case for allowing evidence of what this witness said at the interview with the applicant. Inasmuch as Fisher also sought to give evidence of the representations made to him by Harries, which representations formed the basis for his decision to instruct her to terminate the applicant, I am satisfied that such evidence was admissible as it provided the information, accurate or otherwise, upon which he based his decision to terminate. According to Fisher the information he received from Harries on the afternoon of 28 November 1995 was that there had been an incident in the polyurethane plant that afternoon with Jobling; that incident being associated with the taking of an illicit drug. Harries had, she said, been informed that Patidis was party to a conversation where it was admitted that two people smoked marijuana during lunch time. In the time he had worked with the respondent Patidis had become known to Fisher because on Fisher's regular excursions into the polyurethane area of the plant Fisher often passed Patidis and stopped and talked to him. Because of these encounters Fisher "..... placed credibility on what he (Patidis) had to say because I believed him to be and my opinion was that he was straight up and down. He is a black and white honest person". Having had the opportunity to hear Patidis' evidence and access his demeanour in the witness box, I am satisfied that he is, indeed, a witness of truth who had nothing to gain from conveying the information he had to his employer particularly where he readily conceded that he used marijuana socially from time to time. It was never the respondent's case that the applicant was anything other than a good worker: one whose performance or conduct had never been questioned. Neither was there any evidence to suggest that the applicant's performance of his duties on the afternoon of 28 November 1995 was wanting in any way. If the incident with Jobling had not occurred there was nothing at all that afternoon to draw the employer's attention to the applicant's work. Fisher's uncontradicted allegation is that he held up his meeting to engage in a lengthy discussion with Harries about the matter she reported to him. At the end of the discussion with her, he instructed her to investigate the information. This was, he said, because of his concerns about employee health and safety in the urethane plant area where dangerous equipment was operated by employees and, further, because of his concerns about the use of an "illicit" substance. Following his initial discussions with Harries, Fisher was informed by her that the applicant and Jobling had already left the respondent's premises for the afternoon. As a result he alleges that he instructed Harries to arrange a meeting at the respondent's office at 8.30 am on the next day, which was the time the reception area opened. He also instructed Harries to arrange for the men to enter through the front door and not the plant area where they usually clocked on after 7.00 am. This last instruction was designed, according to Fisher, to avoid any discussion of the matter or "scuttle-butt" in the plant area. It was not, he said, indicative of him having already decided to terminate the men's employment before they were interviewed by Harries and offered an opportunity to respond to the allegations made. The decision to terminate was made, Fisher claimed, at about 9.15 am on the morning of 29 November. It was made by reference to the information he had received from Harries the day before during at least two conversations and following some considerable thought about it overnight. Further, the decision was only finalised following consultation with Harries in the morning when she left the meeting she was engaged in with the applicant, Jobling, Hetherington and Bosse to consult with Fisher. By the time Fisher made the decision to dismiss, it appears from Fisher's evidence that he was already aware of the allegation that the applicant had been seen by Hetherington with red half shut eyes and that at least the applicant denied the allegation made, explaining his physical symptoms as being caused by the effects of the flu he was suffering from on 28 November 1995. Fisher conceded that to his mind it did not matter whether the applicant had smoked a little or a lot of marijuana, any amount would justify dismissal. I understood the thrust of his evidence to be that because of the important safety issues confronting the respondent as an employer; not to mention the fact that the use of the drug is illegal, (see section 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)) the employer's action in summarily dismissing the men was justified. He did betray an ignorance of any degree of difference, if there is any, between the use of the drug per se and the use of the drug leading to the user being "stoned". In the absence of expert evidence it is not possible for the Court to conclude one way or the other what amount of marijuana must be used before a person is said to be "stoned" or affected in any discernible way. Nevertheless, my understanding of the respondent's case was not that the respondent was in any position to say whether the applicant was so affected by the use of marijuana on 28 November, that he was in fact "stoned" or was not capable of performing the duties he actually did perform without incident that afternoon. Drawing parallels with the consumption of alcohol, the respondent's case was that the consumption of alcohol in working hours or the use of an illicit drug during working hours is unacceptable because its use poses an unacceptable risk in the safe operation of equipment and the safe performance of duties during working hours. It was never the respondent's contention or belief that the drug was used at its premises. Hetherington told the Court that late in the day he was instructed by Harries to contact the applicant and Jobling to ask them to attend the office at 8.30am on 29 November entering via the reception area. Both the applicant and Jobling allege that the first they knew of any allegation about their conduct was on the morning of 29 November 1995 when they attended the meeting with Harries, Bosse and Hetherington. The applicant gave evidence that his financee fielded a telephone call from Hetherington requesting that he and Jobling attend the office at 9.00 am. This prompted him to telephone Hetherington to query this arrangement only to be told that Hetherington could not discuss the matter with him. The lastmentioned telephone call was never put to Hetherington; although it is conceded by the respondent that prior to the meeting it took no steps to inform the applicant or Jobling of the allegations made against them or the purpose of the meeting on 29 November 1995. In respect to issues relating to procedural fairness the applicant relies heavily on the failure to notify him of the abovementioned matters before he entered the meeting; not to mention the subsequent failure to tell him or Jobling of the identity of the person or persons making the allegation and purporting to be witnesses. Notwithstanding his alleged ignorance of the allegation and the purpose of the meeting the applicant agreed that he had the suspicion that his employment might be terminated because he was being called into the office. In the applicant's mind this was somehow related to a safety matter and his belief that he might be sacked led him to ask for the union representative, Bosse, to be present at the meeting. The applicant also alleged that when Hetherington had his altercation with Jobling in the afternoon, Hetherington saw the applicant "... shaking my head when he was telling Mathew Jobling off..". This allegation was not put to Hetherington. In giving this evidence the applicant asked the Court to conclude that, because he believed Hetherington did a lot of "hiring and firing" at the respondent's plant (an allegation strongly denied by Hetherington), and he was seen to have been shaking his head at the wrong time, this was a likely basis for Hetherington acting to terminate his employment. I am satisfied on the evidence that Hetherington had no authority to unilaterally terminate the applicant's employment and it follows from this that I do not accept these events as providing a plausible basis for the applicant to conclude that his employment was to be terminated. The applicant's knowledge of and forewarning of the allegation made is an issue in this case notwithstanding the respondent's concession that it took no steps to notify either employee of the matters alleged prior to the interview taking place on 29 November. As already indicated above neither Chamberlain nor Cunningham were interviewed by the respondent prior to the termination. The evidence supports the respondent's claim that it was not aware of their status as witnesses at any time prior to termination. In Chamberlain's case he asserted that the applicant had the flu from at least a day prior to the incident because he had collected the applicant for work both on 27 and 28 November and had noted on each occasion that he was suffering from a runny nose, a cough and red eyes. Chamberlain also tried to suggest during cross-examination that Jobling too suffered from a cold on 28 November. This assertion was subsequently withdrawn when it was queried by the respondent's counsel. It was Chamberlain's recollection in his evidence-in-chief that when the two men walked towards his van on 28 November, they both looked "fine". His evidence in response to questions asked of him in cross-examination was inconsistent with this recollection because he then said that he could not recall either the physical appearance or the way in which the two men walked even though he saw them approaching the vehicle. So far as any discussion between the applicant and Patidis was concerned all Chamberlain could say was that he "... didn't hear nothing". In his evidence-in-chief Chamberlain expressed the belief that the applicant had gone to the fish and chip shop at lunch time. When cross-examined about this matter Chamberlain told the Court that he, Chamberlain, went to a different fish and chip shop to that attended by the applicant during that particular lunch time. His evidence, despite his denials on this matter, did suggest quite strongly that there had been discussion at some stage of this evidence with the applicant because Chamberlain knew not only that the applicant had allegedly gone to a fish and chip shop for lunch but that it was not the shop closest to the respondent's premises, which shop appears to have been the one frequented by the employees at the plant, including the applicant and his witnesses. When denying that he had discussed this matter with the applicant Chamberlain referred to "we", which I understood to include Cunningham. However, Cunningham contradicted Chamberlain's evidence on this particular matter because in response to questions put to him in cross-examination he told the Court that he knew the applicant had gone home for lunch but because the applicant's fiancee was not at home he had gone to another fish and chip shop for lunch. Cunningham conceded that he knew these matters because he had discussed the events of 28 November 1995 with the applicant. When the applicant was cross-examined he too eventually conceded that he had discussed his case "briefly" with Cunningham and Chamberlain. He further conceded that both these witnesses had told him that they did not recollect the applicant and Patidis saying anything to one other when the applicant approached the van at the end of the lunch break on 28 November 1995. Relying on the abovementioned evidence I am satisfied that it is more likely than not that the applicant and his witnesses Cunningham, Chamberlain and Jobling all discussed in some detail the events of 28 November as well as their evidence. It was Chamberlain's evidence that some time between 4.00 and 4.30pm on 28 November Hetherington called Chamberlain into his office and indicated to Chamberlain that the applicant and Jobling had been caught smoking at lunch time. Chamberlain claims that on other occasions Hetherington, who is also his supervisor, had sought his advice on some work issues, although Chamberlain did not identify what those issues were. On the occasion under consideration Chamberlain alleges that Hetherington asked for advice on what he should do about this particular issue. Chamberlain's alleged response to the query was to tell Hetherington that "... if you haven't got nothing on them, call them into the office, kick their arse and send them out". Because he was not asked, Chamberlain claims that he did not take the opportunity to tell Hetherington that he had seen the two men at lunch time and had concluded that they were not stoned. Chamberlain agreed that the as a result of his alleged conversation with Hetherington he understood that the two men were at risk of losing their jobs but because he did not know whether they were stoned or not, he did not come to their defence. Chamberlain's answers in cross-examination on this particular matter were contradictory and entirely unconvincing. As a result of his alleged conversation with Hetherington, Chamberlain appears to have concluded in his own words that the respondent "... had nothing on them". He was unable to provide the Court with a plausible explanation for his failure to mention the fact that he had seen the two men at the end of lunch time and had not noted anything untoward in their appearance, believing also at that time that the applicant was suffering from the effects of the flu. His failure to speak up on an occasion when the opportunity was there to do so is more consistent with a belief on his part that the respondent had no way of proving the allegations and, therefore, he need not say anything to his employer about his knowledge of the matter. Cunningham agreed that on the afternoon of 28 November 1995 he was told by Chamberlain about the abovementioned alleged conversation between Chamberlain and Hetherington. He too failed to come forward to assist his colleagues or the respondent, believing also that the two men may have their employment terminated on 29 November 1995. More significantly, in his discussions with the applicant and the applicant's fiancee by telephone on the evening of 28 November, Cunningham allegedly made no reference to what information he had by then received from Chamberlain. Initially, I found it difficult to accept that there was any reason for Hetherington to approach Chamberlain and seek his advice concerning the conduct of the two men in smoking marijuana at lunch time. Notwithstanding my reservations about the evidence of Chamberlain generally, I am satisfied by reference to the evidence of all of the applicant's witnesses that by the evening of 28 November 1995 they had in some way become aware of the allegations made and it is more likely than not that that information was transmitted to the applicant who, because of this, then knew that he was facing dismissal connected with his conduct at lunch time on 28 November and it is more likely than not that it was this knowledge that prompted him to take steps to ensure that the union representative was present at the meeting arranged for the morning of 29 November. In February 1996 both Chamberlain and Cunningham were asked by the respondent about what they knew of the events on 28 November. This request was made to both men after the applicant's proceedings were commenced in this Court. On the evidence of the witnesses neither man proved helpful; it being suggested by them that Fisher placed pressure on them during the separate meetings he had with each witness. Both Cunningham and Chamberlain were keen to suggest to the Court that Fisher had threatened some form of retribution if information about the meeting with him was conveyed to the applicant or to outsiders. Whilst Fisher agreed that he had not only asked each witness to tell him what they knew, but he had also warned them not to discuss the case with other employees at the plant, I do not accept that either witness was threatened or intimidated in any way. The more likely scenario is that they were unco-operative because of their desire to cover for their work colleague. It was alleged by Cunningham that Mullins was present during his meeting with Fisher, however, Mullins was never cross-examined by the applicant's counsel about any of the matters Cunningham alleged occurred during that meeting. VALID REASON - section 170DE(1) Neither Cunningham nor Chamberlain were able to assist Fisher when he asked them in February 1996 to tell him what they knew. As already indicated I am satisfied, having heard their evidence, that they were not co-operative when interviewed by the respondent earlier this year; their evidence in this proceeding being tailored, as a result of discussions with the applicant and possibly Jobling, to assist the applicant in his case against his former employer. It follows from what I have said that neither witness can be viewed as giving independent evidence and such evidence as has been given should not be afforded any weight where it seeks to bolster the applicant's case. If anything, the behaviour of the applicant and his witnesses allows me to conclude that it is more likely than not that the applicant did make the admission he is alleged by Patidis to have made on 28 November because he had in fact been smoking marijuana during his lunch break and may have been "stoned" on his return to work. That conclusion leads to the further finding that there was indeed a valid reason for termination in the sense that the use of the drug during the lunch break and the risk it posed to the safety of the respondent's operation provides a sound, defensible or well founded reason for termination. Essentially, the applicant argued that there was no proof of his having smoked marijuana or of his having been stoned on the occasion alleged. The sort of proof the applicant appeared to suggest was necessary was expert evidence of the applicant having smoked marijuana and further expert evidence to establish that he was actually stoned. Much was said by the applicant's counsel about the failure of the respondent to carry out any expert investigation of the allegations; which investigations it was argued should have included arranging for medical tests to be conducted. However, such a proposition assumes, without any evidence to support it, that a medical test conducted on 29 November could provide proof one way or another of the use of marijuana during the previous day. It is an assumption the Court cannot make without evidence to support it. The applicant's case also appeared to rest on the belief that if there was a serious allegation made by one employee against another employee and that allegation was denied, the employer, without more, could not conclude that the allegation was true. Certainly it may be the case that one employee's word against another's is not always a sound basis for justifying a summary termination. However, each case should be decided on its facts and it is not appropriate to generally conclude that a decision to accept the word of one employee against another is not defensible in all the circumstances. The so called witnesses who were not consulted at termination have demonstrated to the Court that they have no reliable recollection of the events alleged. Their unco-operative behaviour in February 1996 when the employer sought to establish what the witnesses knew of the events which occurred on 28 November 1995, and their failure to come forward when they became aware of the allegations, suggests that they would not have been likely to have been any more forthcoming in November 1995 had they been approached. This is not a case where there is simply an irreconcilable conflict between the evidence of Patidis and the applicant on the question of an admission to smoking marijuana or being stoned on the applicant's return from lunch on 28 November 1995. The Court is entitled to look at the demeanour of each of the witnesses called and the overall consistency of the evidence given to determine whether the substantive allegation is proved on the balance of probabilities. If anything, the subsequent airing of all the evidence before the Court has only served to vindicate the employer in its decision to accept the evidence of one employee against the other. Section 170DC and Section 170DE(2) What is left to be determined is whether the termination process was a procedurally fair one and, further, whether in all the circumstances the termination was harsh, unjust or unreasonable. When the applicant and Jobling attended the workplace on 29 November they were interviewed by Harries in the presence of Bosse and Hetherington. It was not a long interview, however, it was agreed that during the course of that interview the allegation that both men had been smoking marijuana during the lunch break on 28 November and that it had been admitted was put to the men and denied by them. Both the applicant and Jobling asked the Court to accept that when they entered the meeting they were effectively terminated straight away, with the cheques for their termination pay ready and waiting for them on the desk. Whilst there is some incompatibility between the evidence given by Hetherington and Bosse concerning the order of events during the meeting with Harries, it is apparent from their evidence (remembering that Bosse was a witness called to attend the meeting by the applicant), that some discussion took place with Harries before the men were told they would be terminated. That discussion included putting the allegations and giving the opportunity to deny the allegations, during which time the applicant also had the opportunity to explain his alleged physical appearance by saying that he was suffering from the effects of the flu on 28 November 1995. No evidence was given by any witness at that meeting of Jobling referring to any sore throat he was suffering from. Prior to them being told their employment was to be terminated, Bosse confirmed that Hetherington made comments both to the applicant concerning his observation on the previous afternoon that the applicant's eyes were red and half closed and to Jobling that his behaviour on the previous afternoon had been unusual. Both Hetherington and Bosse claim that Harries informed the applicant and Jobling that the use of drugs and alcohol was not condoned by the respondent and at some stage during the interview Harries told the men that the respondent was prepared to pay for some form of counselling or drug rehabilitation for them. It was agreed by all those who gave evidence and were present at the interview that at some point during the interview Harries left to consult Fisher. Hetherington also left to allow the applicant and Jobling to speak to Bosse. It was Bosse's evidence that Harries returned after having consulted with Fisher and informed the men that their employment was to be terminated. Hetherington did not return, alleging that some forty minutes after he left the interview he was contacted by Harries and met the men at reception for the purpose of assisting them in collecting their personal effects and leaving the premises. In contrast to Bosse's evidence, it was Hetherington's recollection that the applicant's employment was terminated before he left the interview room. Clearly because of this there is some conflict in the evidence on when the termination was actually notified to the men. It was Fisher's evidence that he did not attend the interview and at some stage during the morning Harries came and saw him and informed him of the matters already discussed at the interview as a result of which he instructed her to terminate their employment. Neither Hetherington nor Bosse recalled any cheques waiting on the desk for the applicant and Jobling when the interview commenced. It is Fisher's evidence, which I have accepted, that he signed the termination cheques, which require two persons' signatures, after Harries came and saw him and, after he instructed her to terminate their employment. My view of the applicant's evidence and the evidence of Jobling is that it is not reliable evidence and at every opportunity given they have attempted to exaggerate the actions of the employer with a view to prejudicing the Court's mind against the employer. Even though the evidence given, particularly by Hetherington and Bosse is equivocal, I am satisfied that the most likely scenario during the final interview was that alleged by the respondent. That is to say, the respondent did not tell the applicant or Jobling who their accuser was however they were told what the allegations were and were given an opportunity to provide their version of events. After these preliminary discussions Harries attended upon Fisher during which time the applicant and Jobling consulted their union representative and Fisher then instructed Harries to terminate their employment, at the same time signing the cheques necessary to effect the termination. Because of the seriousness of the allegation which not only had the potential of bringing the applicant's employment to an end but, arguably also could expose him to criminal charges, I accept the submission of the applicant's counsel that in accordance with the decision in Dickinson v Woolworths Safeway Pty Ltd (unreported, Full Bench of the Employee Relations Commission, No. 94/0590, 3 March 1995) it was incumbent on the respondent in this case to conduct its investigations and decision making with considerable care and diligence. In his decision in Sangwin v Imogen Pty Ltd (unreported, von Doussa J, No. SA 1161R of 1995, 8 March 1996), His Honour Justice von Doussa points to the possibility of finding that a valid reason exists for terminating employment if the employer honestly believes on reasonable grounds after sufficient enquiry that the employee has been guilty of serious misconduct. In making this observation His Honour then contemplated an enquiry of the type envisaged in Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224; that is to say, a very comprehensive investigation of the allegations as well as the opportunity afforded to the employee of being heard. However, this observation should not be taken as meaning that in order to act in a procedurally fair manner an employer is required to conduct an investigation at the level of a criminal enquiry. On the contrary in a civil proceeding such as that between an employer and its employee the correct view is that an employer need not conduct an investigation with the thoroughness of a lawyer or policeman (see Schaale v Hoechst Australia Ltd (1993) 47 IR 249, Cooke v The Royal Melbourne Hospital (unreported, Millane JR, No. VI 2106 of 1995, 2 August 1995), Nicolson v Heaven and Earth Gallery Pty Ltd, 1 IRCR 199). In the present case it is apparent that the investigation was not thorough in the sense that it did not seek to establish whether there were any witnesses. Further, and as it turns out, more importantly, it did not tell the applicant or Jobling the name of the person making the allegation that the applicant had admitted to smoking marijuana during the lunch break. Had it done so it may have had the opportunity to consider the applicant's version of the conversation alleged. On one view of the abovementioned matters the termination process was flawed in a procedural sense. Having said this, however, it should also be borne in mind that, although the respondent was not aware of this at the time, it is now apparent that the applicant and Jobling were probably aware of the allegation prior to the meeting on 29 November and in all probability were aware of the identity of the witness said to have been told by the applicant that he had smoked marijuana during lunch time. In Wyndham Lodge Nursing Home Inc v Reader (unreported, Full Court of the Industrial Relations Court of Australia, No. VI 5014 of 1995, 15 April 1996), the Full Court gives support to the proposition that if an employee knows an allegation beforehand it is not necessary for the employer to state that allegation explicitly. Because of my finding that it is likely that he had knowledge of the allegations beforehand and by the time of the interview he knew and understood where the source of the employer's information was coming from, it is arguable that in relation to these matters there was no real want of procedural fairness (see also Gibson v Bosmac Pty Ltd (1995) 60 IR 1. Moreover, in relation to the alleged failure to investigate thoroughly and identify any potential witnesses and obtain their version of events prior to termination, as it now turns out those witnesses' contribution to establishing the truth of what occurred on that day during the conversation between the applicant and Patidis is negligible. At best their evidence, if it was accepted, only provides an alternative explanation for the physical symptoms and behaviour relied on by Patidis and the respondent as making it more likely than not that the admission was made. My finding that it is more likely than not that the applicant did smoke marijuana during his lunch break and, further, his attempts and those of his witnesses to contrive an explanation that he was suffering from the effects of flu on 28 November 1995, are circumstances which militate against finding that the decision to terminate the applicant's employment was a harsh one. The applicant carries the burden of showing that this was a harsh, unjust or unreasonable termination. In determining if this is so, the Court must look at all the circumstances and weigh any mitigating circumstances against the gravity of the misconduct giving rise to the decision to terminate (see Bostik (Aust.) Pty Ltd v Gorgevski (No.1) (1992) 36 FCR 20 at page 28 and Byrne v Australian Airlines Limited and Frew v Australian Airlines Limited (1995) 131 ALR 422 at pages 463 and 464). Once there is evidence of serious misconduct it is difficult to sustain any argument that the termination is a harsh, unjust or unreasonable one notwithstanding the employee's otherwise good work record with his employer. If there has been want of procedural fairness by reason of the matters discussed above (and my finding is that because of the applicant's knowledge of events there was no want of procedural fairness), this is not a case where the circumstances support an order for reinstatement or for the payment of compensation. Both remedies are discretionary ones and, as a result of amendments to the Act, the Court must determine the appropriateness of the remedies by considering all the circumstances of the case. The circumstances considered include those existing at the date of termination and the date of hearing. Any contravention of section 170DC and section 170DE(2) because of a lack of procedural fairness has to be viewed against the proof of serious misconduct and the applicant's conduct and that of his witnesses at hearing which provide a basis for saying that reinstatement is impracticable and the payment of any compensation is inappropriate. Had I determined that the evidence supported a conclusion that there was contravention of the procedural fairness provisions of the Act because of the circumstances referred to, I would not have been disposed to grant either remedy. Accordingly, the order I make is that the applicant's application is dismissed. Since writing the abovementioned decision it has come to my attention that on 4 September 1996 the High Court of Australia handed down a decision, the effect of which, amongst other things, is to invalidate section 170DE(2) and section 170EDA(1)(b) of the Act; such sections being severable from the other provisions of the Act (see The State of Victoria & Ors v The Commonwealth of Australia (unreported, High Court of Australia, No. FC 96/024, 4 September 1996)). As a result, any comments made in this judgment concerning section 170DE(2) of the Act are no longer relevant. My findings and the decision reached in relation to section 170DE(1) and section 170DC matters are not altered by reason of any of the matters addressed by the High Court. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applicant's application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding thirty (30) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 5 September 1996 Solicitors for the Applicant: Mulcahy Mendelson & Round Counsel for the Applicant: Mr Selimi Solicitors for the Respondent: Phillips Fox Counsel for the Respondent: Mr N. Kenyon Date of hearing: 26, 27 & 28 June 1996 Date of judgment: 5 September 1996