108 The submissions made on behalf of the Applicant are summarised as follows:
109 The Applicant is seeking reinstatement, reemployment or, in the alternate, monetary compensation for relief from his summary dismissal which occurred on 09 January 2008 for misconduct arising from a physical altercation with Jose Paradise on 20 December 2007.
110 The evidence confirms that Mr Silva had no prior breaches of the disciplinary policy. He had no warning letters on his personnel file. The altercation with Mr Paredes was Mr Silva's first breach of the policy and the incident grew out of Mr Silva telling Mr Paredes "You're late" when he turned up for work.
111 None of the witnesses saw the incident in its entirety. The onus was on the Respondent to prove that the misconduct took place yet Mr Paredes had not been called to give evidence.
112 Mr Silva has consistently maintained that he had acted merely to defend or protect himself. He may have pushed Mr Paredes, but not aggressively - just enough to get Mr Paredes off him.
113 The Respondent expected Mr Silva to calm Mr Paredes down. It was submitted that Mr Silva had advised during his first interview regarding the incident, on 21 December, that Mr Paredes could not be calmed down. He denied kicking or attempting to kick Mr Paredes or taking any action against Mr Paredes except in protection of himself. Mr Silva admitted that, in hindsight, it would probably have been advisable to react in a different way to diffuse the situation "but it happened very quickly". Mr Pant, who was present when the incident began, confirmed that Mr Silva was defending himself in response to Mr Paredes pushing him albeit, at one stage, Mr Silva did step towards Mr Paredes. It was submitted that, even on the very worst case scenario, the only physical contact between the parties was pushing and kicking. The incident had only lasted about three minutes.
114 It was pointed out that, according to Mr Boateng, when he was holding Mr Paredes, Mr Paredes was pushing forward to get to Michael Silva and Michael Silva was coming forward to Mr Paredes. That confirmed the Applicant's submission that Mr Paredes made the first move. There was nothing in the witness statements of the three witnesses, Mr Pant, Mr Boateng and Ms Gocevska, that addressed the issue of self-defence. As those witnesses had been interviewed before Mr Silva, their evidence should have been revisted once Mr Silva stated in his defence on 23 December that he was acting in self-defence. The Respondent's failure to do so means that the Respondent cannot rely on its defence that those three witnesses' statements were in conflict with that of Mr Silva, because they do not address the issue of self-defence or compare their aggressiveness. It was not put to Mr Silva, either at the interview on 21 December or 07 January, that his evidence conflicted with that of the three witnesses.
115 The Applicant should have been shown the witness evidence the Respondent had against him and provided him with an opportunity to explain why his statement was in conflict with those witness statements in relation to his defence of self-defence. The Respondent's failure to do that, it was contended, was a denial of natural justice to Mr Silva.
116 Mr Burrows on two occasions in his statement observed that Mr Silva had looked scared. It was contended that, had the Respondent taken that into account, the scales would have tilted in favour of Mr Silva as it would have lined up with his version of events which was that he was defending himself.
117 Mr Cochrane accepted that it was within Mr Silva's rights as Supervisor to ask Mr Paredes why he was late and to ask Mr Paredes not to swear at him.
118 Messrs. Burrows and Cochrane gave evidence that they had relied on Mr Judd's incident report which was a flawed report. On his own evidence, that report was based on his "assessment" of the situation compiled from notes. When taken to his actual witness statement and it was compared to his incident report, Mr Judd said that his witness statement was a more accurate reflection of his notes than the incident report.
119 Mr Burrows confirmed, during cross-examination, that the policy which stipulates that "Examples of behaviours which may result in instant dismissal" included an "act of aggression, violence or fighting", was not mandatory. It was submitted that a single act of aggression does not automatically result in summary dismissal, particularly when there were no witnesses to the whole of the event and it was Mr Silva's first breach of policy. The Respondent ought to have considered other options available to it in the circumstances, including issuing him with a warning or simply taking no action in relation to Mr Silva.
120 There was an incident involving Mr Paredes and Mr Silva in October 2007 which resulted in both men lodging complaints against one another. Although the Respondent considered that the matter was resolved, the Applicant had not received the letter that was supposed to have been sent to him advising him of the outcome of the ensuing investigations. During those investigations, Mr Silva had made it clear that he was afraid to issue Mr Paredes with directions. It was submitted that the prudent thing for the Respondent to do would have been to separate the work areas of both men until the issue was resolved and may be the incident in December would not have occurred. Whilst the three witnesses did not indicate that Mr Silva acted in self-defence, their statements did not negate Mr Silva's argument of self-defence.
121 It was pointed out that despite the fact that Mr Silva was able to substantiate that he had been slapped by a lady named Lorraine in 2006 in response to a complaint she had lodged against him, she had not been dismissed. That incident was not dissimilar to the incident with Mr Paredes in that both involved physical contact.
122 It was pointed out that the dismissal of Mr Silva was harsh, unjust and unreasonable for the following reasons. Firstly, the Respondent has not proven that the conduct for which Mr Silva was dismissed took place; secondly, Mr Silva had acted in self-defence and the Respondent should have looked further into that defence before taking action against the Applicant; thirdly, it was Mr Silva's first offence and he had no previous warnings on his personnel file; fourthly, the policy was applied inflexibly and without proper consideration to Mr Silva's word that he was acting in self-defence; and fifthly, there was no evidence to counter his self-defence argument.
123 The Applicant relied on Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 All ER 67 @ pp 73 & 74 as authority for the principle that a person who has been reprimanded may lose his temper and it is the standards of men and not those of angels that ought to be applied. Mr Cochrane expected Mr Silva to calm the situation down. Mr Silva, at his interview on 21 December, pointed out that Mr Paredes could not be calmed down. Mr Silva had been asked, during that interview that in hindsight, would he have done anything differently. His reply was may be he would have but, again, the incident happened very quickly. Mr Silva may have acted hastily in asking Mr Paredes to stop swearing at him, but then again, it had not been an unreasonable request bearing his mind his role as supervisor. He was also entitled to defend himself against any aggression that Mr Paredes showed towards him. The Respondent failed to consider the circumstances surrounding the incident. All it focused on was the physical altercation between Mr Silva and Mr Paredes, the fact that an act of aggression occurred, and concluded that Mr Silva had to be terminated as a matter of course without proper regard to the circumstances surrounding the situation between Mr Silva and Mr Paredes.
124 It was submitted that the facts mirrored those in Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 @ 341 wherein the decision of the Commission stated:
" Our review of the evidence in the present case leads us to a similar conclusion as that in Bostik and Gorgevski, that is, the respondent took the view that its policy against fighting in the workplace, without more and once it had been established the appellant was engaged in a fight, meant that dismissal should follow almost as a matter of course...."
"(p 343) ....of particular relevance in that respect was the respondent's failure to consider who was the aggressor, the history of the relationship between the two employees, whether Mr Usher was aggressive and provocative towards the appellant, the confrontation by Mr Usher of the appellant, the level of anger of Mr Usher at the time and Mr Usher's departure from the scene after the fight and then his initial denial of any involvement in it. Those matters which the respondent did not take into account were, in our view, proper and necessary to be so considered rather than, as it would seem, the respondent applying its no-fighting policy without regard to the particular circumstances as they existed."