Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shraff

CATCHWORDS: Fighting in the workplace - investigatory process - unfair dismissal - supervisor - unseemly conduct

LEGISLATION CITED: Industrial Relations Act 1996

Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shraff (1937) All ER 67 Burge v NSW BHP Steel Pty Ltd 105 IR 325 CGEA Transport Limited t/as Southtrans v TWU [2001] NSWIRComm 287 CASES CITED: Jones v Dunkel (1959) 101 CLR Yew v ACI Glass Packaging 72 IR 200 Browne v Dunn (1894) 6 R 67 Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 96

APPLICANT Ms F Hancock, of Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr B Cross, of Counsel

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

KUMISTHERU (MICHAEL) SILVA v ST VINCENT'S PUBLIC HOSPITAL LIMITED

Application by the Health Services Union on behalf of Kumistheru (Michael) Silva re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Notification under section 130 by the Health Services union of a dispute with St Vincent's Hospital Sydney Ltd. re: dismissal of member ........................................................................................................................................... DECISION

1 The Health Services Union filed an application on 29 January 2008 pursuant to the provisions of Section 84 of the Industrial Relations Act 1996 seeking relief for the alleged unfair dismissal of a member of that Union, Mr Kumistheru (Michael) Silva, by St Vincent's Public Hospital Limited.

2 The Applicant had been employed as a full-time Environmental Services Supervisor pursuant to the provisions of the Health Employees (State) Award and the Health Employees Conditions of Employment (State) Award. He commenced employment on 11 October 2004.

3 He contended that he was stood down with pay on 20 December 2007 pending an investigation into his alleged involvement in a physical altercation with one of his staff. He was dismissed on 09 January 2008.

4 Conciliation proceedings before Bishop C failed to resolve the claim. Standard directions were issued and the matter was re-allocated for hearing before the Commission as currently constituted on 06 and 07 May 2008.

5 The Health Services Union filed a section 130 notification on 04 April 2008 in relation to the said dismissal. That matter was listed for compulsory conference on 17 April 2008 at which time the Commission, as currently constituted, was advised that the matter was not capable of resolution by conciliation. A Certificate of Attempted Conciliation was issued and both matters were joined for hearing.

6 Ms F Hancock, of Counsel, entered an appearance on behalf of the Union and called evidence from: Mr Kumistheru (Michael) Silva Applicant Mr Saroj Pant Hospital Assistant, Grade 2 Annexed to the Witness statement of the Applicant were witness statements from Mr Saroj Pant and Ms Mirjana Gocevska. 7 Mr B Cross, of Counsel, entered an appearance on behalf of the Respondent and called evidence from: Mr Stephen Kehagias Security Officer Mr Colin Graham Moar Security Officer Mr Ross Kenneth Judd Security Manager Mr Dean Nathan Burrows Employee Relations Officer Mr Francis Raymond Cochrane Manager, Support Services Mr Don Gritter Campus Environmental Services Manager

8 Mr Kumistheru (Michael) Silva was employed by the Respondent from 11 October 2004 until 09 January 2008. He was initially employed as a Cleaner and was promoted to Supervisor, Environmental Services, on 14 May 2007. 9 Mr Silva's office was located on level 1 of the hospital in an area known as Xavier. Every morning his staff walked along a corridor, entered through the mail room door, and walked through the mail room to his office located on the right hand side of that area to sign in and pick up keys. Mr Silva agreed that staff needed to take only one step through the doorway to his office in order to sign the Attendance Book (which was left on the desk close to the door) and to pick up the relevant keys which were on the wall just inside the door. He stated that he usually arrived at work about 10-15 minutes before his starting time of 6.00 am and left his door open for that purpose. The permanent staff signed on and then proceeded to their work stations. He checked his messages and logged them. By 6 am he was in a position to allocate work to relief staff. 10 There was a previous altercation between the Applicant and one of his staff members, Mr Paredes, in October 2007. At Mr Silva's request, an essential interim arrangement was entered into despite the chain of command within that Department. Mr Gritter, Environmental Services Manager, agreed to be the communication medium in relation to any messages that needed to be transmitted between them. Mr Silva was to receive written communication from the Respondent as to the outcome of its investigations into that altercation. Mr Silva had not received that communication as at the time of his dismissal. 11 On 20 December 2007, Mr Paredes arrived for work at approximately 6.20 am. He attended Mr Silva's office to sign the Attendance Book and collect keys as per the normal practice. Both allege that the other swore at him while Mr Silva was reprimanding Mr Paredes for being 20 minutes late for work. 12 There was physical contact in addition to the verbal exchange. Both alleged that the other was the aggressor.

13 Investigations were conducted by the Respondent and witness statements were taken from both the Applicant, Mr Paredes and witnesses to the incident and the events immediately thereafter. Although there were witnesses to the entire incident, none had witnessed the incident in its entirety. Mr Saroj Pant had witnessed the commencement of the altercation, Mr Boateng arrived just after the start and was there till the end of the altercation and Ms Gocevska arrived towards the end.

14 The Applicant was dismissed on 09 January 2008. Mr Paredes was also dismissed.

15 Mr Francis Cochrane, Manager-Support Services, stated that he was on the panel that appointed the Applicant to the position of supervisor on 14 May 2007. Mr Silva was selected because he was a lateral thinker and had experience in cleaning. 16 Mr Silva stated that his induction on 15 May was the only induction he had been put through by the Respondent and had lasted "probably two or three minutes". 17 Mr Cochrane contradicted that evidence stating that he had personally conducted Mr Silva's induction which lasted approximately 15 minutes because it was a revision of the induction he had undergone at commencement of employment. 18 The induction record subpoenaed by the Respondent confirmed that the Respondent's code of conduct had been explained during that induction, amongst a host of other relevant matters. 19 Mr Cochrane sent an email to Mr Silva dated 22 May 2007 attached to which were some pro formas of documents he may require to use in his role as Supervisor. He had added, "Can you please enrol yourself into a supervisor training course given by our HR department as soon as possible". He admitted that he had not pursued the matter to determine whether or not Mr Silva attended such a course nor was he aware that Mr Silva had contacted HR and was advised that such a course was not immediately available. 20 Mr Silva could not recall an email he had been forwarded by Mr Cochrane on 28 May 2008 advising that there were places still available in the management course and suggesting that he may be interested in enrolling in Managing People Effectively. 21 Mr Silva confirmed that he had read all the Respondent's statements in reply and had taken pains to indicate in his statement in reply every statement that he took issue with. Later in cross-examination, he admitted that he had studied and stored all annexures attached to emails thereby gaining an understanding in relation to things such as the code of conduct. bullying and harassment. He stressed that he always followed the code of conduct. 22 Mr Cochrane gave evidence that both he and Mr Silva had received training in conflict management. If he had been in the situation Mr Silva found himself in when Mr Paredes swore at him, he would have approached the situation differently. He would have advised Mr Paredes that he would see him later in his office. He would not have confronted or embarrassed him in front of another staff member.

COUNSELLING/WARNINGS 23 Mr Silva stated emphatically in his statement to the Commission that "During my employment I have never had any disciplinary action against me". He also stated that he had not received any warning letters during the period of his employment.

24 Mr Gritter gave evidence that Mr Silva had been the subject of several informal counselling sessions designed to provide him with feedback as to his progress and to clarify the Respondent's expectations of him. Of the 23 cleaners reporting to Mr Silva, four had lodged complaints against him. He believed that to be a significant number considering the strength of the concerns expressed by the complainants.

25 He held approximately 5 - 10 meetings of 10-30 minutes in duration with Mr Silva regarding his poor communication and interaction with Pola Samaris albeit there was no written record kept. During cross-examination, Mr Silva confirmed that he had attended discussions "on many occasions" with Mr Gritter regarding his conduct, particularly regarding his dealings with Ms Samaras, but did not accept the Respondent's position in relation to whom was at fault.

26 Another employee, Ms Lois Walsh, made a verbal complaint about Mr Silva's management style in or about August/September 2007 - about the same time that Mr Silva commenced to performance manage her. Mr Gritter could not recall which of them had taken action against the other first.

27 The Applicant further agreed that he attended a disciplinary meeting in October 2006 over an incident with Lorraine Taylor. He recalled that he had refused to apologise to her. 28 Mr Cochrane tendered a statement in the proceedings in which he set out details of complaints lodged against the Applicant. Apart from the previous altercation with Mr Paredes, those matters are not relevant to the current proceedings, save to confirm that the Applicant had been counselled over a number of incidents. 29 During cross-examination, it was substantiated that Mr Silva was aware of the definition of "disciplinary action". The Applicant, later in cross-examination, provided a different definition to what he had provided earlier.

30 In relation to a complaint against him by Mr Peter Zeene, the Applicant agreed that Mr Cochrane identified wrong conduct by him which fell within his own original definition of disciplinary action. Nevertheless, he did not agree with Mr Cochrane's conclusions following investigation of that incident. He received a letter from Mr Cochrane, dated 12 June 2007, in which it was pointed out that he had not followed proper procedures. The situation was resolved with both employees agreeing to a fresh start and there had not been any further issues between them. 31 Mr Cochrane agreed that, despite the Respondent's contention that it had several issues with Mr Silva's supervisory style, there were no warnings recorded in his personnel file. 32 Mr Gritter stated that he agreed with Mr Silva on quite a few occasions that some staff members were not performing to an adequate level. However, respect is a critical component of the Respondent's Code of Conduct. It was constantly reinforced that Management were required to deal with employees with respect and dignity and achieve goals without having to belittle people. From the reports he had received on Mr Silva, it appeared that he did not treat his workers with respect.

33 There was an earlier incident between the Applicant and Mr Paredes on 26 October 2007. Mr Gritter was aware of the incident as both had filed complaints against one another. A meeting was held with Mr Silva on 02 November 2007 at which Mr Burrows was also in attendance. The point of contention was not whether the lifts were clean, but the ensuing argument and the words exchanged between them. 34 He agreed that Mr Silva stated at the conclusion of that meeting that he was "not comfortable dealing with JP" and was "still afraid to issue him with directions". It was agreed that a meeting would be held with both employees in attendance to work the matter out. He agreed, during cross-examination, that "time and logistics" had prevented that meeting from taking place - the right people were not in the right place at the right time. He agreed that he was labouring under his own workload at the time resulting in Mr Silva not ever receiving any formal communication advising him of the outcome of that investigation. As to whether Mr Silva was within his rights to consider the investigation into that incident as ongoing, Mr Gritter replied, A. I can see how you could think that, but I also know the grapevine works very strong in the hospital, so I find it hard to believe that he wasn't aware that - he was aware that we had done an investigation, that we would have interviewed both himself as well as Jose. It certainly is not a good thing that we haven't actually delivered that letter, but that was a missing link in the jigsaw as far as I was concerned. 35 Mr Gritter argued that the two men had been kept apart in that, despite the chain of command, they did not have to deal with one another. At Mr Silva's request, and for what he considered to be an essential interim arrangement until the issue was resolved, he had acted as a go-between in relation to messages that needed to be transmitted between them.

36 The letter to be given to each of them would not have, in his opinion, resolved their differences because it was going to state that, in the absence of witnesses to the incident, neither of their claims had been substantiated. To settle their differences, therefore, more work was required to be done, for example, mediation, to ensure that they were able to work amicably together in the future. He had no intention of splitting them up permanently. 37 In accordance with the temporary truce they had in place, the situation would ordinarily be handled as follows: He expected Jose Paredes to sign on, collect his keys and go off to undertake his duties. Mr Silva would then report to Mr Gritter that Jose was late and the situation needed to be followed up. Mr Gritter would then deal with Mr Paredes regarding the lateness issue. 38 Mr Burrows, Employee Relations Officer, stated that he issued the Applicant with a verbal caution to abide by the Respondent's Code of Conduct in his dealings with his staff, including Mr Paredes. 39 Mr Cochrane stated that he was aware of that incident which was the subject of an internal email from him to Ms Branka Kleut in the Human Resources Department to which he had attached minutes signed by Mr Paredes. It appeared from the statement of Mr Paredes that the Applicant kept following him and pushing him back into the office. Mr Cochrane considered that to be harassment. His memo read, in part: Recommendation It appears that there have been several issues with Michael's Supervisory style. In this case he was (should have been) in control yet he chose to confront and argue with the staff concerned (worst of all in public). In this case I would say that Michael was the root cause of the issue and should have conducted himself professionally and should have never let the matter escalate the way it did. As there are no witnesses to collaborate any of the versions, I propose to send both a letter of reprimand - as both need to follow the Code of Conduct - with Michael's one worded a lot stronger. I would also have the two parties meet and make up/shake hands and move on in a conciliatory meeting. Your comments please. 40 He was aware that the letter was not issued and that Mr Silva was of the opinion that the issue had not been put to rest at the time of his termination. 41 The supervisors were in charge of rostering the cleaners and the Department head was in charge of rostering the supervisors. He thought that both men could work out their differences and therefore had not considered rostering Mr Silva at a different time to Mr Paredes, particularly as the latter had made a statement that he had always supported Mr Silva in the past.

42 He confirmed that he was aware that Mr Paredes claimed to be a martial arts expert and that he also worked as a bouncer in the Kings Cross area. Nevertheless, Mr Paredes had always dealt with him calmly and he was not aware of any other occasion when Mr Paredes had exploded or was violent in his dealings with any other person at the workplace.

43 The incident with Mr Paredes occurred on 20 December 2007. An initial interview was conducted with Mr Silva on the following day, 21 December 2007. 44 Present at that interview were Messrs Don Gritter and Dean Burrows. Mr Silva was provided with the transcript of his interview which he annexed to his statement. During cross-examination, he agreed that the transcript of that interview was correct albeit he did not agree with its contents.

45 The transcript of that interview indicated that Mr Silva stated that he was in his office with Saroj Pant when Mr Paredes arrived for work at 6.20 am. He made a comment to Mr Paredes, "you are late" intending it to be a question. Mr Paredes did not respond at first then, as he was walking out of the office, he said "f.... off". Mr Silva responded with, "don't say to me f... off". At that point, Mr Paredes walked back into the office towards him where he sat at his desk. As Mr Paredes approached him, he stood up. Mr Paredes leaned forward and they were face to face, "only inches away from each other". He asked, "What did you say?" Mr Silva repeated, "don't say f... off to me". Mr Paredes responded by pushing him. At that point, Mr Pant jumped out of his chair and attempted to restrain Mr Paredes. Mr Silva went to the telephone to call security but Mr Paredes lunged at him. Mr Pant stood between them facing Mr Paredes. Mr Paredes attempted to punch Mr Silva around Mr Pant saying "No one is going to believe you". He was cowering behind Mr Pant while that was going on. One punch landed, a glancing blow to his face. He contended that Mr Pant would not have seen this. Despite the fact that Mr Pant was between them, Mr Paredes got closer to him. At one stage, he may have pushed Mr Paredes in self-defence in order to get him off the top of him and even then it was not done aggressively. At that point Mr Kwasi Boateng entered the office and immediately stepped in between both of them. Mr Silva asked Mr Pant to call security while Mr Boateng restrained Mr Paredes. In the interim, Mr Paredes continued to lunge at him. Mr Boateng managed to pull him out of the office but Mr Paredes forced his way back into the office and came close to him with Mr Boateng still holding on to him. There was no contact made on that occasion. He could not recall if anything had been said. Ms Mirjana Gocevska entered the office and stood between them. Her attempts to calm Mr Paredes down were successful. He ceased to be physically aggressive although he was still quite angry. He believed that it was because Mr Paredes did not want to cause her any harm. As Mr Boateng propelled Mr Paredes out of his office, through the mailroom and then into the general corridor, the latter continued to make threats of physical harm as well as death threats against him. The door leading from the general corridor to the mailroom was shut. He remained in his office the whole time. Mr Silva was adamant that no scuffle occurred in the mail room. He was adamant that he had not gone into the general corridor until after Mr Gritter arrived. When security staff opened the door to the mailroom, Mr Paredes saw him and attempted to rush him again and had to be restrained. Mr Silva stated at the interview that Mr Paredes could not be calmed down. He pointed out that he did not believe that Mr Paredes was a mentally stable person and that "if the hospital decides to end my employment that is fine but if you continue to employ Jose Paredes there will be problems".

46 Mr Silva agreed, in cross-examination, that both Mr Burrows and Mr Gritter afforded him opportunities during the interview to state whether or not he had stepped out of his office prior to the arrival of the security officers and whether there had been a scuffle in the mailroom. He insisted that he did not leave his office until security arrived. He further insisted that he neither punched or kicked, nor attempted to punch or kick, Mr Paredes.

47 During the interview, Mr Burrows ran through Mr Silva's evidence with him to ensure that Mr Silva was satisfied that the Respondent had an accurate version of events from his point of view. Mr Silva agreed that the Respondent had recorded his version of events correctly. 48 He agreed that he was stood down on 21 December on full pay while investigations were conducted over the following two weeks. 49 Mr Silva's witness statement, written three months after the incident, and his oral evidence, differed markedly in a number of respects from the version of events recorded in the transcript of the interview. The Applicant was taken through each of those differences. He remained resolute that the additional matters raised in his witness statement and oral evidence more accurately reflected his recollection of the incident. He did point out that the preparation of his witness statement was rushed. 50 The marked differences between his interview record and witness statement are as follows:

Firstly, Mr Silva stated that he was still seated when Mr Paredes returned, bent over him with his face against his and asked " What did you say ?";

Secondly, Mr Silva stated that Mr Paredes grabbed him by the shoulders while he was seated. It was at that stage that, terrified, he stood up instantly;

Thirdly, Mr Silva stated that when Mr Paredes put his hands against his chest and pushed him backwards, he fell against the corner of his desk. He was dumbstruck for a few seconds because of the unexpected " life threatening situation " he was in;

Fifthly, he said that Mr Paredes taunted him using foul language and threatened to " teach [Mr Silva] a lesson ". Mr Silva screamed for help;

Sixthly, when one punch landed lightly on his face Mr Pant was not standing between them;

Seventhly, Mr Silva contended that Mr Pant pushed Mr Paredes out of the office and into the mailroom before proceeding to get security. In other words, both Mr Paredes and Mr Silva were alone for a period of time during which the former re-entered the office and followed him around the office trying unsuccessfully to punch him prior to the arrival of Mr Boateng;

Eighthly, Mr Silva stated that he pushed Mr Paredes against the filing cabinet to get Mr Paredes away from him;

Ninthly, once Mr Boateng got Mr Paredes out of the office and into the mailroom area, Mr Paredes was not provided with an opportunity to return to the office despite his attempts to do so. He tried to kick Mr Silva around Mr Boateng and missed. Mr Silva was standing " right close to [his] door " at the time.

Ninthly, when Ms Gocevska intervened, Mr Paredes was in the mailroom not in his office; and

Tenthly, Mr Silva came out of his office to look through the window of the mailroom into the general corridor to see what was happening. Mr Paredes reacted by forcibly attempting to re-enter the mailroom. Mr Silva was ordered back into his office by the Security Officers and one remained to guard him. Mr Gritter arrived at around 7 am to discuss the incident with him. 51 Notwithstanding the versions given by the Applicant in both his interview record and witness statement, other versions emerged during cross-examination.

Firstly, Mr Silva insisted that once Mr Boateng got Mr Paredes out of his office, the latter re-entered the office several times, pushing him forward. He could not recall how many times " because I was struggling to survive myself because of his violent act ".

Secondly, Mr Silva stated that after Ms Gocevska and Mr Boateng took Mr Paredes out of the mailroom and closed the door, he did not leave his office at all until the security officers arrived, " I came out of my office to the mailroom as to see what is going to happen next. I could see a couple of security guards through the open window in the mailroom, they got hold of Jose ". 52 Mr Silva agreed that his reaction to Mr Paredes was not an appropriate way for a supervisor to defuse the situation but explained that everything had happened very fast. He did not have time to think and act appropriately. 53 Mr Silva relied on the amended statements of both Mr Boateng and Mr Pant as supporting his recollection of what he said happened on 20 December. 54 Mr Saroj Pant stated that he had reported to Mr Silva's office at 6.40 am on 20 December on his first day at work. There were three chairs against the wall and he was sitting on one of them when the incident occurred. He was interviewed by Dean Burrows and Don Gritter about the incident at 2.05 pm that same day. He reviewed his record of interview and signed it approximately four hours later but could not recall when exactly he was provided with a photocopy of it.

55 The transcript record of the interview stated that Mr Silva told Mr Paredes "You are late". Mr Paredes told Mr Silva to "f... off" as he left the room causing Mr Silva to reply "Don't you tell me to f... of". Mr Paredes re-entered the office and said "What?" Mr Silva stood up when Mr Paredes came back in and both stood face to face. Mr Pant pointed out that even though Mr Paredes made the first move and covered most of the ground between them, Mr Silva had also stepped towards Mr Paredes. The body language of both men was aggressive. Mr Paredes gave Mr Silva a push which, in Mr Pant's opinion was not forceful albeit it caused Mr Silva to take a couple of steps backwards. At Mr Silva's request, he stepped out of the office to get security. He noted that as he left the office both men were moving towards each other once again. Mr Pant ran into Mr Boateng in the corridor and both returned to intervene to settle the matter. When they entered the office, he noted that both men were pushing one another although Mr Paredes appeared to be the more aggressive of the two. Mr Boateng grabbed Mr Paredes and Mr Pant left to get security.

56 Mr Pant, in oral evidence, stated that when he returned with two or three security officers, he presumed that Mr Silva was in his office because he did not see him and the door was closed. Mr Paredes was outside with Ms Gocevska who was trying to calm him down. The Security Officers led Mr Paredes away from the scene.

57 Mr Pant agreed that the statement that he gave on 20 December was a recollection that was given on the day of the incident while it was still fresh in his mind. He explained, however, that he was not confident and he was nervous too. He had just a brief glance at the record before he signed it. On 06 January 2008, he asked for a hard copy of his statement and spoke to Kwasi Boateng about his concerns. Both realised that their recollections, as advised on 20 December, were wrong. They met on the following day, 07 January, with Mr Con Roussos, the union delegate. Mr Roussos was a neighbour of a friend of his and was instrumental in his subsequent engagement with the Respondent in that he had let him know when a job opening came up. Mr Pant showed his record of interview to Mr Roussos. 58 Mr Pant considered that some of the contents of the first record of interview did not exactly reflect what he said and asked to make a change. The change was made at a meeting with Dean Burrows which he attended in the company of Mr Boateng as the latter also wanted changes made to his record of interview. He denied that they had proceeded to Dean Burrows' office from Mr Roussos' office although Mr Roussos may have telephoned Mr Burrows and advised of their intention to amend their records of interview.

59 Mr Pant originally stated that, "When SP returned to MS's office, JP and MS were pushing each other". His statement was amended to recant that statement. In doing so, he acknowledged, in writing, that he had made the omitted statement during the interview in error. He denied that Mr Roussos had influenced him to make the change or that it was designed to make the situation less incriminating to Mr Silva. As he was giving evidence for the first time, he wanted to obtain some advice from him. Mr Roussos told him that Mr Silva had been dismissed and had filed an unfair dismissal claim. As Mr Pant was being interviewed by management and the police at the time, Mr Roussos' advice to him was "just stick to it like what you said, don't say anything else". All in all, the meeting took about 5 minutes. He did not recall Mr Roussos contacting Mr Burrows during that meeting.

60 During cross-examination, Mr Pant stated that he stood by the contents of the record of interview as true and correct. During re-examination, Mr Pant stated that he stood by his amended record of interview.

61 Mr Pant's statement was included as an annexure to Mr Silva's statement. When it became obvious, during cross-examination, that the statement of Mr Pant differed in critical detail from his, Mr Silva denied having seen the statements of Mr Pant and Mr Boateng prior to obtaining them from the union and denied any knowledge of their version of what they stated happened at the interview on 21 December. He agreed that he had been provided with those statements and read them prior to preparing his statement on 20 March 2008. He denied that his body language was aggressive, that he had stepped towards Jose Paredes and that as Mr Pant left the office, both he and Mr Paredes were moving towards each other. Mr Silva qualified the statement he made earlier in cross-examination - he said that the statements of Mr Pant and Mr Boateng supported his recollection of events, "...except a couple of things that I don't agree with".

62 Ms Gocevska was interviewed on the same day of the incident. Her transcript of interview clearly stated that she walked into the mail room to find Mr Silva and Mr Paredes standing face to face screaming at one another with Mr Boateng standing between them. Both appeared nervous. Mr Silva appeared to her to be the more nervous and scared of the two whilst Mr Paredes was the more aggressive. As soon as Mr Boateng pulled Mr Paredes away, she grabbed him and escorted him out of the mailroom but he was so furious that he attempted to re-enter the mail room to hit Mr Silva, screaming out "Your finished", "Your going to die today". Security staff arrived and took Mr Paredes away.

63 In the transcript of interview, Mr Boateng originally stated that he met Mr Pant in the corridor as he was rushing to get security. He told Mr Pant that he must be mistaken about the fight and would investigate for himself. Accompanied by Mr Pant, he went into Mr Silva's office. They were not touching but Mr Paredes looked like he was set to "pounce" on Mr Silva. He grabbed Mr Paredes who said to Mr Silva "I am going to teach you a lesson". His fist was clenched and he tried to push Mr Boateng away. Mr Boateng cautioned him, "Don't do that". He pushed Mr Paredes towards the door. Mr Paredes lashed out at Mr Silva with his leg but missed. Mr Silva responded in the same manner and also missed. Mr Boateng managed to get Mr Paredes out of the office and into the mailroom. Mr Silva followed them into the mailroom. Mr Paredes said to Mr Silva, "security can't help you" to which Mr Silva replied, "you wait and see". Mr Boateng noted that although Mr Silva looked scared, he approached Mr Paredes who was pushing forward to get at him even though he was still being held back by him. Mr Boateng said he slipped in between both of them as they pushed and shoved each other although no punches were traded. He noted that Mr Paredes was the more aggressive of the two. Mr Boateng proceeded to push Mr Paredes out of the mailroom area into the general corridor then shut the mailroom door thereby separating both men. Mr Silva remained in the mailroom area looking scared and not attempting to come out but Mr Paredes attempted to push past him and re-enter the mailroom. He stopped him from opening the door. When he saw Ms Gocevska, he enlisted her help asking her to speak to Mr Paredes. Mr Paredes was still aggressive and he urged him to listen to her. Security arrived at that point and one of the officers stayed with Mr Paredes and held him back. 64 After the meeting with Mr Roussos, Mr Boateng made two amendments to his original statement. He sought the deletion of the sentence "MS responded by trying to kick JP but he also missed". He also sought the amendment of the sentence, "Michael Silva followed Jose Paredes into the mailroom area" to read: "Michael Silva was standing in the doorway between his office and the mailroom".

65 Mr Silva stated that it was untrue that he approached Mr Paredes claiming that he was moving around to ensure that Mr Boateng was always between the two of them in order to defend himself. He was adamant that it happened in his office and not in the mailroom.

66 Mr Silva also pointed out that his statement was wrong in reference to Mr Boateng completely agreeing with his version of events on 20 December 2007. He blamed it all on his poor English language skills despite his earlier evidence that he was more comfortable in written English than oral English. He confirmed that he had not asked for an interpreter.

67 Mr Stephen Kehagias, a Security Officer employed at the site, tendered a statement in the proceedings in which he stated that when he arrived at work with another Security Officer, Colin Moar, at approximately 5.30 am on 20 December 2007 his Supervisor, Brendan Osman, was already in the Security office. Another Security Officer, David Gorman, arrived about a minute later. He noted that it was 6.20 am when Saroj Pant came to their office seeking urgent assistance. The three Officers rushed with Saroj Pant to the cleaners' department which they reached in about 30-40 seconds. On the way there, he received a call from Brendan Osman on the two-way radio telling him that someone had called and asked for security to attend at the cleaners' office.

68 Mr Kehagias stated that, as they made their way along the general corridor, they saw Ms Gocevska with Mr Paredes and another cleaner standing roughly around the door to the linen room/laundry. The incident was over. The entry door to the mail room was open. He decided to go and talk to Mr Silva. He asked David Gorman to stand by the door. Colin Moar stayed talking to Jose Paredes. He did not see Mr Silva at that stage. As he was walking towards the mailroom, he saw Mr Silva who was yelling out "F... him" "Effing C, come here" one arm was up and the other was down. He made a note of that using the notepad and pen he always carried in his pocket. He said to Mr Silva, "Settle down, relax, whatever happened, it's all over, take a deep breath".

69 That exchange was overhead through the open area in the wall because Mr Paredes responded with, "Let him come after me" as Colin Moar was moving him further down the corridor away from the cleaners' office. 70 He rang for the security manager, Ross Judd, about 6.30 am but he had not yet arrived at work. He took Mr Silva into the office with him to talk to him. Mr Silva co-operated with him. When he saw Mr Judd arrive at 6.40 am, Mr Kehagias went out to meet with him to give him a report on what had happened, however, he had already received a report from Colin Moar who was with him at the time. 71 He confirmed that, based on his experience as a Security Officer, Mr Silva appeared to be traumatised. It was possible for trauma to affect a person's ability to reason.

72 He made a note of the fact that Mr Silva told him that when he said, "Jose, you are 20 minutes late", Mr Paredes had responded, "Yes, so what's it to you?" Mr Silva told him that he had defended himself. 73 There were no defensive marks on Mr Silva. He agreed that it is possible that bruises do not show up as quickly on people with darker skin like Mr Silva as quickly as they do on fair skin. 74 He stayed until the police arrived at 7.15 am and took statements. He did not witness Jose Paredes become violent towards Mr Silva.

75 He prepared a report on the incident because he was the first officer on the scene.

76 Mr Colin Moar, another Security Officer with St Vincent's Hospital, tendered a statement in the proceedings. 77 During cross-examination, Colin Moar stated that when he arrived at work at about 5.30 am on 20 December 2007 with Steve Kehagias, the night shift crew were still in the security office. 78 He recalled Saroj Pant coming to the security office for help at roughly 6.20 or 6.25 am, not 6.40 am as stated in his statement. He went to the window of the security office to talk to him but had difficulty understanding him. They finally made out that he was asking for someone to come to the cleaning office. 79 He, Steve Kehagias and David Gorman proceeded to follow Mr Pant to the cleaning department. The first person he saw was Jose Paredes in the corridor with a couple of other cleaners. He appeared agitated - "it was just his actual body language, he was agitated, he was verbally agitated, aggressive and he appeared to be in an argument or a verbal argument at the time with the other cleaning staff that were there and they appeared to be trying to stop him from moving into another area of that level". He had not paid much attention to what he was saying. He was more interested in moving him out of the area into the cleaners' change rooms and toilets. David Gorman remained with Mr Kehagias because he was a trainee at the time, under his supervision. Mr Kehagias opened the door to the mailroom and went in. 80 He had no problem restraining Jose Paredes who had responded positively to his verbal instruction. He did not have to actually hold Mr Paredes until, as they were leading him away, Mr Silva opened the door to the mailroom and became aggressive towards Mr Paredes. He attempted to step out of the mailroom, past Mr Kehagias, and into the corridor. He did not make it. Mr Kehagias stepped back to stop him. All guards were out in the corridor area at the time and Mr Kehagias was standing in front of the door to the mailroom. Mr Judd arrived then. He had not called him on his mobile telephone to inform him of what was going on. 81 Jose Paredes was agitated. In his opinion, Mr Silva was not traumatised. 82 After moving Jose Paredes completely away from the area, he spoke to him for a period of time and he seemed to calm down significantly.

83 Mr Moar was read part of the statement from Mr Judd which was a statement attributed to him: " I'm not happy with the supervisor. We had Jose settled down in the corridor and he came out all smug and was pumped up, looking to rev him up again. He was strutting around the corridor, looking at Jose to rile him up. Jose was about to go off again and we told him to get back inside, but he wanted to keep out there and keep it going. He shouldn't be inflaming the situation like he was. " Mr Moar stated that they were not his words and if they were stated to be his, he could not recall saying them. He admitted, during re-examination, that the incident had happened so long ago that he could not recall what words he had used to describe the situation to Mr Judd. He admitted that they could have been along those lines, something similar. Nevertheless, they accorded with the description he had given in his statement. 84 Ross Kenneth Judd, Security Manager at St Vincent's Hospital, tendered a statement in the proceedings. He insisted that either Colin Moar or Steve Kehagias rang him on his mobile telephone advising him that there was an incident.

85 When he arrived at the scene, he saw Messrs Moar and Kehagias standing with Mr Paredes. He pulled them aside and asked for a quick briefing. He made notes of all the information he obtained but pointed out that he was not reporting what they said verbatim. He could not recall which one of them said to him: " There has been an altercation between the cleaners. Apparently it became quite violent. Everyone was quite agitated when we got here and we had to physically separate them to keep them apart. "

86 He asked if anyone was hurt and the reply was negative but Mr Moar said words to the effect of, "No, but apparently it became quite violent". He went on to point to Mr Pant and Mr Boateng as witnesses to the incident. They were standing together at the time. He approached them in the presence of Mr Kehagias and Mr Pant said to him words to the effect: " I was in Michael's [Silva] office. He reported Jose [Paredes] was late. Something was said and Jose said, "Don't tell me to f.. off." Jose came towards Silva and Silva stood up. They were both clashing, face to face, up close to each other. Silva said, "Go. Get security. I then left the room.....I didn't see any punches but both were pushing when I left the room. "

"I heard scuffling in the supervisor's office so I entered the office. Both were up close and struggling. I stepped between them and grabbed Jose [Paredes] (by his waist) pushing him out the office. Silva followed out into the main office.... I stood between them and they both tried to kick each other and there was........ pushing."

88 In response to his inquiry as who was seen as the aggressor in that incident, Mr Boateng replied, "No. Both men were kicking at each other".

89 Mr Judd proceeded to Mr Silva's office to obtain his version of events. Mr Silva immediately said to him, "I want Jose [Paredes] taken off site immediately. He shouldn't be allowed here. Get him out of here." Mr Judd explained that no action would be taken until the matter was fully investigated and the Police may want to interview everyone involved. He asked Mr Silva to provide his version of events. Mr Silva gave a similar version to the one he provided in his interview. He stated that Mr Paredes had punched him 5-6-7 times and one connected to the right side of his face. He said that he had defended himself by pushing him away. Mr Judd said he could not see any evidence of injury on Mr Silva's face or neck to which Mr Silva replied, "I only received a little touch on my face. I was pushing him away and he was punching on my chest. None of it was strong enough to hurt me. I tried to call for security but he wouldn't let me." He said Mr Paredes had threatened him saying "You'll be a dead man today. My brother will be here. You won't leave the hospital today." 90 Mr Judd then proceeded to talk to Mr Paredes who was agitating to have the Police called in. Mr Paredes said to him words to the effect of: "I arrived late and I knew he would stick it to me. It was about 6.20 am so I knew I'd be in trouble and was prepared for that. He (Michael Silva) said, "Get your keys. You're late." I said, "No kidding." He then said to me, "Fuck you." I said, "I'm not taking any more of your shit." He then made some remark about security. He then said something to me like "You want to step up" or something similar. I said to him, "Don't step up to me." He said, "Get out of my face." He then pushed me back. I wasn't going to take that from him. There was a new guy in the room (Saroj Pant) and he went outside the room. Kwasi grabbed me to settle me down and I was walking away out into the main office. He came and kicked me in the nuts. This was in the outer office. I then called "000" I wanted to press charges against him."

91 Mr Paredes had already called King Cross police and they were on their way. He denied that he had threatened to call his brother.

92 Mr Judd noted that Mr Paredes had a large tear under the left arm of his jacket, along the seam. Mr Paredes later claimed that his jacket was torn by Mr Silva during the struggle although he did not mention the torn jacket to him during his interview. The jacket was intact when Mr Boateng saw him wearing it the day before.

93 While collecting information from the security staff, he was adamant that Colin Moar had said to him words to the effect of: "I'm not happy with the supervisor. We had Jose settled down in the corridor and he came out all smug and was pumped up, looking to rev him up again. He was strutting around the corridor, looking at Jose to rile him up. Jose was about to go off again and we told him to get back inside but he wanted to keep out there and keep it going. He shouldn't be enflaming the situation like he was."

94 Mr Judd stated that he used the notes he had taken during those interviews to prepare both the statement tendered in the hearing and his security report on the incident.

95 He had discussed the security incident report with Dean Burrows prior to sending the report to him as requested at about 1.09 pm on 20 December 2007. He also sent it to Don Gritter, as Manager of the department involved.

96 Mr Judd felt that his report to Dean Burrows was fair and reasonable. He had clearly indicated that he was not inferring that anyone was at fault and had not made any determination as to who might be the instigator at that stage, "I wasn't asked for anything other than that at that point in time".

97 Dean Burrows, in the statement he tendered in the proceedings, stated that he first learnt about the incident at 8 am on 20 December from a cleaner. As he had not witnessed the incident himself, he had relied on all witness accounts as to what had happened. He had also received a security report from Mr Judd which he read after interviewing the three eye witnesses. He had relied on it to form a view about Mr Silva's involvement in the altercation. He was aware that the security report was Mr Judd's assessment of the situation and that the witnesses had actually made those statements to the security staff. Nevertheless his department conducted its own investigations and interviews into the matter. 98 He interviewed Ms Gocevska, Mr Boateng and Mr Pant on 20 December in the presence of Mr Gritter. In each case he kept notes from which he prepared his reports, read them out to the witnesses, confirmed their contents and then provided them to Mr Gritter to confirm them and have them signed. 99 He stated that he had not relied to a great extent on Ms Gocevska's statement to form a view about whether or not Mr Silva had engaged in misconduct. He had, however, relied on all what was said by Messrs Boateng and Pant in that interview to arrive at a decision as to whether or not Mr Silva had misconducted himself.

100 On 21 December, once again in the presence of Mr Gritter, he had conducted interviews with Messrs Silva and Paredes. He did not believe Mr Silva's version of events as it conflicted with the versions provided by the witnesses the day before. He accepted that while Mr Silva may, at some stage, have pushed Jose Paredes away in self-defence, not all of his actions were in self-defence and the witnesses did not indicate that Mr Silva was defending himself.

101 At 4.30 pm on 21 December, he sent an email attached to which were the records of all interviews to Gary Dorahy (General Manager-Group Finance and Operations), Kerrie Field (HR Executive), Kerry Stubbs (Executive Officer St Vincent's Public) and to Messrs Gritter, Cochrane and Judd advising that, in his opinion, the Respondent had grounds to terminate both employees. Acts of aggression were listed amongst matters considered to be breach of policy, although there were some issues that needed to be considered. He had taken into account that Mr Silva had no warnings on his personnel file and that it was the first breach of policy that he had committed to his knowledge. Nevertheless, his recommendation that Mr Silva be terminated was adopted. He agreed, during cross-examination, that dismissal was not mandatory. 102 He confirmed that he had not told Mr Silva at the interview on 21 December that his evidence was inconsistent with the witnesses. He was aware that there was a prior incident between Mr Silva and Mr Paredes on 26 October 2007. Both had lodged formal complaints and there was an investigation into the so-called "elevator incident". It related to the lifts not being cleaned. The outcome of the investigation was to advise Mr Silva verbally that he was to abide by the code of conduct in his dealings with Mr Paredes and other staff. Mr Silva did not receive a formal letter about the outcome of that investigation prior to his dismissal.

103 He invited Mr Silva to a show cause meeting on 07 January 2008. Although Mr Silva was not specifically advised that the witnesses had contradicted his statement, the show cause letter inviting him to the meeting had informed him that the Respondent believed that he was involved in a physical altercation. He was therefore given an opportunity to respond to that belief. Mr Burrows considered that he had provided Mr Silva with natural justice.

104 Mr Cochrane confirmed that he had attended the show cause meeting and kept minutes. He had read the witness reports and the security reports prior to the meeting. He was aware that Mr Silva was contending that he had taken action against Mr Paredes in self defence. Mr Cochrane did not accept that reason as a valid excuse because he believed there were other ways of handling situations such as this. He contended that Mr Silva had agitated Mr Paredes and then failed to use methods to calm the situation down. Instead, he "actively was involved in the altercation". He pointed out, however, that he had no involvement in the decision to terminate Mr Silva. He agreed that Mr Silva, as his Supervisor, was within his rights to question Mr Paredes about his late arrival and also within his rights to tell Mr Paredes not to swear at him.

105 Mr Gritter's office was adjacent to where the incident occurred on 20 December 2007. Mr Gritter stated that he went into the mail room and found Mr Silva there. The Applicant was "rather circumspect" and made brief comments only, stating words to the effect, "I can't believe what's happened, I've been attacked". It struck him as odd that Mr Silva, who alleged that he was scared and claimed that he was the victim, did not do the natural thing and get further away from Mr Paredes rather than stand in direct visual line of sight to him.

106 He was of the view that Mr Silva provoked the situation because of the blunt, inflammatory statement he made to Mr Paredes about being late when they had not spoken to one another for approximately 6 - 8 weeks and in the knowledge that he was not meant to have direct dealings with him. The manner in which it was said was neither denied nor justified by Mr Silva during the investigations. In his view, Mr Silva had not done anything to de-escalate or defuse the situation, rather, he had "added fuel to the fire whatever he did". It took two minutes to get Mr Silva back into his office. He was calm, he did not make a lot of eye contact and appeared to be thinking.

107 During re-examination, Mr Gritter stated that he had also heard that Mr Silva had undertaken significant training in martial arts and was at a reasonable standard.

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."

125 The Applicant also relied on the decision in CGEA Transport Limited trading as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287 @ 18, wherein the Full Bench, on appeal, upheld the decision below in which the Commissioner had taken into account the circumstances surrounding a fight which occurred on the job: "The appellant submitted that the Commissioner's findings were not justified because he relied upon background events, particularly the history of the conflict between Mr Boglari and the appellant, to explain Mr Boglari's reaction to the complaint. We do not consider that there was any error, in this regard, in the manner in which the Commissioner approached the evidence. When considering an application under s84 of the Act, the Commission is entitled, and indeed required, to determine whether the dismissal of an applicant was harsh, unreasonable or unjust in light of all the circumstances of the case."

126 In conclusion, it was submitted that the dismissal of Mr Silva was harsh, unjust or unreasonable for the following reasons - there were no witnesses to the whole of the event; there was no evidence to show that Mr Silva did not act in self-defence as that proposition was never put to the three witnesses; Mr Silva was not given the accounts of the witness evidence against him to reply to in his show cause meeting; Mr Judd's report, which was relied upon by Mr Burrows and Mr Cochrane, was flawed in that it was his assessment of the evidence, rather than the witness evidence of the event; Mr Silva had no prior warnings and the incident with Mr Paredes was his first breach of policy after working at the hospital for about five years. 127 The submissions made on behalf of the Respondent are summarised as follows: 128 The Commission needs to focus on the credibility of the Applicant in the present proceedings - both in relation to the evidence and in the discretion it is asked to exercise. 129 It was submitted that no credit will attach to the evidence of the applicant for the following reasons. Firstly, in his first statement the Applicant denied that he had been the subject of any disciplinary action throughout his period of employment. He demonstrated his understanding of the meaning of that word and then went on, during cross-examination, to admit that he had been subject to disciplinary action during his employment, although he disputed the outcome in each instance. 130 It was also submitted that where there was any variation between the evidence of the applicant and any other witness in these proceedings, the Commission ought to prefer the evidence of those other witnesses. It was pointed out that this case was extraordinary because the applicant, despite the clear evidence in his statement that his witness statements supported his version of events, went on, during cross-examination, to disagree with his own witnesses. Therefore, in order for the Applicant to succeed in his application, he must impeach his own witnesses and he did not do so. The fact that no one witness saw the whole incident was of absolutely no moment to this Commission. 131 It was suggested, on behalf of the Applicant. that a Jones v Dunkel inference arose against the Respondent because it did not call on Mr Paredes to give evidence. It was pointed out that Mr Paredes was dismissed for fighting with Mr Silva. To suggest, therefore, that he was in the Respondent's camp was nonsensical. 132 It was submitted that the Applicant has proved the case on behalf of the Respondent. The three principal statements on which the Respondent relied were filed as statements on behalf of the Applicant. That evidence was gathered during a detailed investigation of the matter by the Respondent. 133 The Commission was reminded that the fact that the Applicant was a Supervisor was a very important consideration and imposed greater duties on it. It has long been authority in this Commission that there is one rule for chiefs and another for Indians (per Justice McClelland in the Elizabeth Drive Nursing Home case) recently applied in A V Jennings Holdings Limited and Robert Dean; ex parte Elma Mary Pecotic [2008] NSWIRComm 1057. 134 The judgment of his Honour, Sams DP, in Kumar and Valuca Pty Ltd. [2001] NSWIRComm 63, contained a distillation of relevant authorities in relation to the question of fighting and set out seven principles that arise in fighting cases: 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; and 7. An employer should take into account an employee's period of service, work record and whether the employee was in a supervisory position.

135 The standard of conduct expected from Mr Silva was greater than that applicable to Mr Paredes. Mr Silva was in a supervisory position, he had been trained in relation to managing conflict and had been warned previously, in relation to Mr Zeene, regarding how to deal with employees: " It appears that the proper procedures were not correctly followed by you in the first instance and then subsequently by Peter. This in my opinion created a negative cycle which was not conducive to clarify and resolve issues ".

136 Mr Gritter gave evidence that he had at least a dozen meetings with Mr Silva ranging from 10-30 minutes in duration to assist him in how to perform his supervisory duties, how to be less confronting and how to treat people with respect. Mr Gritter explained that it was necessary to do so because it was unusual that four out of 23 cleaners would have a problem with the way Mr Silva conducted himself. 137 The applicant conceded during cross-examination that he was aware of the Code of Conduct, that he had been trained in conflict management, and had received particular directions as to his dealings with Mr Paredes. 138 In regard to Mr Paredes, as a result of the conflict two months' earlier, Mr Silva was advised how to deal with Mr Paredes, how to avoid conflict with him and the requirement to bring the matter to the immediate attention of a Manager if problems arose with Mr Paredes, with Mr Gritter acting as a conduit thereby absolving any fear, real or imagined, on the part of Mr Silva. That system seemed to work for at least two months, albeit there was some annual leave during that period. Mr Silva did not have to utter a word to Mr Paredes. Yet, on 20 December 2007, he made a confrontational statement to Mr Paredes, "You're late". 139 The Respondent was quite clearly able to discover what happened. There were three witnesses who saw just about all of what occurred at different times and in their interviews on 20 December 2007 gave clear explanations as to what occurred. The transcript of those interviews quite clearly indicates that Mr Burrows took great pains to ensure that the respondent was understanding everything that was being put. He repeated and made sure on each occasion something was said that that was in fact what the person was wishing to express. Those three eye witnesses were the applicant's witnesses in the proceedings. 140 Mr Pant stated that Mr Paredes made the first move towards Mr Silva and covered most of the distance, but Mr Silva did step towards Mr Paredes, that the body language of both men was aggressive, and as he left the office to fetch security, both men were moving towards each other again. Mr Silva cannot assert self-defence when he, on two occasions, was observed moving towards Mr Paredes. That action was also contrary to his training as Supervisor. In his original interview, Mr Pant stated that when he returned to the office, both men were pushing each other. Weeks' later, following discussion with the union delegate, Mr Pant sought to amend his statement to remove that sentence. During cross-examination, Mr Pant agreed that his recollection would have been more accurate the day the incident occurred. 141 Mr Boateng made a number of statements which he later sought to retract. The reason for that retraction was not known. Mr Burrows received calls from Mr Roussos, the union delegate, who advised that both Mr Pant and Mr Boateng were with him and were discussing their statements. Mr Boateng sought to retract the statement that "Mr Silva responded by trying to kick Mr Paredes but he missed". He also sought to amend the statement that Mr Silva followed Mr Paredes into the mailroom area to read that Mr Silva was standing in the doorway between his office and the mailroom. Whether or not Mr Silva followed Mr Paredes into the mailroom is a key part of the Respondent's case. The Commission was urged to prefer the contemporaneous record on the day. Mr Boateng went on to add that he was still holding Mr Paredes and Mr Paredes was pushing forward to get to Mr Silva and Mr Silva was coming towards Jose Paredes. It was pointed out that it could not have possibly occurred in the doorway. If Mr Silva came towards Mr Paredes, then Mr Silva proceeded out of his office into the mailroom where the scuffle continued. Mr Boateng got between the two of them as they pushed and shoved each other. Mr Silva was participating in a fight in the mailroom. Ms Gocevska saw him in the mailroom. If he was self defending, he would have remained in his office. Mr Boateng continued, "Both made contact with the other, although no punches were traded. JP was very aggressive". 142 It was submitted on behalf of the Applicant that there was no evidence of punches. It was pointed out on behalf of the Respondent that the only evidence of punches was contained in Mr Silva's statement which the Commission was asked not to accept. 143 Mr Boateng went on to add that he rushed Mr Paredes through the mailroom door to the general corridor and shut the mailroom door separating both men leaving Mr Silva in the mailroom. Despite Mr Silva's repeated denials, he was there and he was scuffling and fighting in the mailroom. Mr Boateng noted that at that point security arrived, a very important temporal reference, because Mr Kehagias gave evidence that when he arrived, he saw Mr Silva in the mailroom. Yet Mr Silva stated that he did not come out of his office until after security arrived. 144 Ms Gocevska said in her statement that when she entered the mail room, she saw Mr Silva and Mr Paredes standing face to face, screaming at one another while Mr Boateng was standing in between them. There was no self-defence occurring in this incident. There was participation in a fight and Mr Silva was a supervisor who ought to have known better, had been trained better, had been instructed better. 145 The investigation process simply cannot be faulted. All participants were interviewed, Mr Silva was interviewed on 21 December and had the opportunity to say why he should not be terminated on 07 January. He was on full pay while the investigation was being conducted. The witnesses supported the conclusion of a fight. 146 The rule in Browne v Dunn (1894) 6 R 67 was correctly applied. A witness does not have to be specifically quoted precisely what another witness had said. Mr Silva was given the opportunity to respond to contradictions in his version of events. He was specifically asked if he had left his office? Whether he was involved in a scuffle in the mailroom? Whether he had gone into the general corridor area at any time? The questions continued - all designed to ventilate with him and provide him with an opportunity to admit the points of distinction between his version of events and that of the witnesses. He denied all of the above. 147 It was submitted that it would be ludicrous to return to the witnesses and ask them if they thought the scuffle they observed and assisted in breaking up was self-defence. 148 The security report was a very contemporaneous document executed within hours of the incident and provided to Messrs Gritter and Burrows. Mr Judd gave evidence that it contained his first impressions in relation to what occurred. It was not relied upon as evidence in the termination but formed the basis of the investigations later conducted by Messrs Gritter and Burrows. It was the statements received from those witnesses that were relied on in terminating Mr Silva's employment. 149 In Burge there was a concession that the Respondent had applied its no fighting policy by way of a straight application of policy without reference to the detail. Nothing could be further from the truth in this case. Contrary to the Applicant's submissions, the policy was not applied as a matter of course. The policy was applied after every person who witnessed or participated in the incident had been interviewed and an assessment made in relation to what the respondent thought was proved from those interviews. To compare what occurred on the evidence of the applicant's witnesses to somebody being slapped on the bottom was ludicrous. There was a full on fight, one in which Mr Silva was a willing participant in that he followed Mr Paredes into the mail room, and one in which he did not in any way seek to step back from. The security guards observed him posturing at the door of the mailroom, gesturing to Mr Paredes when they were trying to calm the situation down. Mr Silva had displayed conduct very unbecoming to a supervisor. 150 In conclusion, it was submitted that the Respondent had clearly proven the facts of the matter and it was clearly not an unfair dismissal. 151 Even if the Commission were to find against the Respondent, it was submitted that the Commission should not exercise its discretion to afford any remedy to the applicant because of his untruthfulness. His statement did not even line up with the transcript of his interview which was attached as an annexure to it. In Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 96, her honour, Justice Schmidt held that such a failure in a person's evidence is grounds upon which to not exercise one's discretion and give remedy. In that case her Honour, in an unfair contract case, actually varied the contract, but because of the admitted untruthfulness of Ms Gilmore, declined any remedy. The only distinguishing feature between that case and this case is Mr Silva did not admit untruthfulness. Nevertheless, that untruthfulness is evident from both his written evidence and particularly in cross-examination. 152 Reinstatement or reemployment were not available because of the Applicant's baseless allegations of conspiracy, "Some superiors were waiting for an opportunity to end my employment". He later identified Mr Cochrane in his reply statement and nominated three particular issues as a basis for this allegedly held belief. Each of those reasons was shown to be absolutely baseless. It cannot be seriously suggested that a supervisor would be reinstated after making such unfounded allegations of conspiracy. Mr Cochrane gave evidence in the proceedings. He is a very reserved, clear, and concise man. He did find some humour in the conspiracy theory, but what was extraordinary was the conspiracy theory was never even put to him in cross-examination. He was not even tested one iota on what was a very serious allegation against a respondent. 153 In conclusion, discarding the Applicant's worthless evidence, and relying merely on the evidence of the other witnesses, it was abundantly clear that the Applicant was fully involved in a fight. There was no self-defence. It occurred in places he said it did not occur, it involved things that he said were not involved. The Respondent did apply its policy based on those circumstances. It is completely inappropriate for a supervisor to conduct himself the way the applicant did and he was fairly terminated. No remedy ought to be made available to somebody who presents evidence and gives evidence in the manner the applicant did in this Commission. 154 In reply, it was submitted on behalf of the Applicant that there were no warnings on the Applicant's file. Mr Pant had not changed his evidence as a result of a meeting with the union delegate. He gave evidence that he read his statement and wanted to change it. In terms of the application of the policy, it was clarified that the Applicant was submitting that not that it was applied as a matter of course but, rather, that it was applied without proper regard to the circumstances. CONSIDERATION

155 Mr Silva quite clearly stated that he was very adept at the use of computers and was much more comfortable communicating in writing than verbally. He agreed that drafting his statements was the most comfortable manner in which to put his evidence before the Commission. 156 He prepared a detailed statement and a statement in reply for the hearing. He was provided with copies of the statements from his own witnesses which he attached as annexures to his statement. He confirmed, in cross-examination, that he read them prior to preparing his own statement. He initially stated in cross-examination that those statements supported his recollection of events. However, when inconsistencies were pointed out to him between his version of the incident and that of his witnesses, he qualified his response by stating that there were a couple of things in their statements which he did not agree with. 157 He indicated that he had not been provided with much time by his union to prepare his statement. Yet, during his examination-in-chief, he declined to make any changes to it when an offer was made by his counsel. He was content, in subsequent review of this document, that it was true. 158 Mr Silva embarked on a conspiracy theory claiming that some of his superiors were planning over a period of time to set him up so as to terminate his employment. He claimed that Mr Cochrane was the key conspirator. The grounds upon which he based that belief were three-prong. He had asked for additional staff, he had pursued a claim for the payment of nauseous linen allowance and asked to be allowed access to Kronos. All three claims had been denied. That theory had not emerged in any of the interviews conducted with him. That theory, in my view, lacks substance and was not able to be justified in the proceedings. The first ground was not sufficiently aired before the Commission and there was sufficient evidence before the Commission to dismiss the other two claims as unwarranted. 159 The Respondent is entitled to infer from the procedure adopted at the interviews and the sequence of events that followed that Mr Roussos probably influenced Messrs Pant and Boateng to change their eye witness accounts of the incident. That matter could easily have been put to rest by calling Mr Roussos as a witness in the proceedings. It was the Applicant's decision not to do so. It is also noted that Mr Gilchrist was not called to give evidence on the Applicant's behalf. 160 Mr Silva stated that he had not been allowed free speech at any of the meetings called in relation to the incident. He claimed that he merely responded to questions put to him by management. That statement was made during cross-examination despite the fact that he had agreed with the contents of an annexure to his own statement which included the following statement by Don Gritter, "Michael, I want to hear from you in your own words what occurred yesterday morning" and a one-page response by Mr Silva followed. He insisted that he had merely answered the question but not stated his views. A few minutes later, he agreed that he had been provided, at two separate meetings, with an opportunity to explain what occurred on 20 December but claimed "not enough". Presumably he meant not sufficient time to respond. 161 Mr Silva confirmed that there was a further meeting on 07 January, 2008 during which time he was provided with the opportunity to explain why his employment should not be terminated. Mr Roussos attended the meeting as his support person. The minutes of that meeting were also annexed to his statement. He had not questioned the accuracy of those minutes and confirmed that they were correct. Those minutes indicated that Mr Cochrane had reminded Mr Silva of his advice to him on each occasion he had a run in with Mr Paredes that he "needed to calm down" and to take matters to a higher level by reporting the incident to him or Mr Gritter. 162 Upon being cross-examined on the contents of that document, Mr Silva recanted his previous evidence stating that the minutes were incorrect. He stated that Mr Cochrane had reminded him of the need to calm down but had not reminded him that he needed to take such problems to a higher level. He contended that he had not had an opportunity to correct those minutes prior to his dismissal. He stated that despite the fact that the minutes of that meeting had been in his possession for many months, he had attached them to his statement, he had seen them attached to other affidavits, and had read them, it was the first time he had actually noticed that error. I cannot accept that excuse. 163 Mr Silva accepted that there were many things that he had not said to management during the interviews about the incident. He explained that he had been "...really traumatised with this situation, I was really upset, I was really completely - most of the time I was completely out of my mind, because this was a terrifying situation..." and it was not until he was able to go over it and put everything in sequence that he could recall it properly. He denied that it was an exaggeration made up specifically to embellish the incident and set up some self-defence argument, "Yes, even though the day after, still I was traumatised. I never - this is the first incident, I was really getting upset, really getting afraid in my life". That response does not sit comfortably with the evidence. He claimed that Mr Paredes was an expert in martial arts. He did not deny the allegation that he, too, practised that sport. Despite the so-called aggressiveness of Mr Paredes, he failed to land more than one soft touch to his face. As Mr Gritter noted, the Applicant stood in full view of Mr Paredes who was being held back by other staff rather than retreat to his office in order not to aggravate the situation. 164 Having taken into account all of the evidence before the Commission, the submission of the parties and the authorities relied on, and bearing in mind some of the inconsistencies described above, I have come to the conclusion that the termination of the Applicant, in those circumstances, was neither unreasonable nor unjust. 165 On the other hand, the Applicant commenced employment with the Respondent in 2004. There was no history before the Commission of any counselling or warnings prior to his elevation to Supervisor. His problems commenced when he took on the responsibility for the work of other cleaners. 166 He had not enrolled in the appropriate course because, he stated, the course was full. Despite his obvious struggle with appropriate supervision of staff, no attempts were made by the Respondent to assist in that regard apart from drawing his attention to the training available. 167 A band-aid approach was taken to the settlement of the first altercation with Mr Paredes. Mr Silva had every right to query tardy employees within his team and to object to the use of foul language. It is most unacceptable to have to put up with such behaviour from a subordinate and then report it to a superior. That matter should have been finalised within days of its emergence. 168 The Respondent had other avenues for dealing with Mr Silva's involvement in the incident on 20 December. One glaring example is an offer to return him to the position of cleaner. That offer was neither made nor, apparently, considered. 169 On that basis, the Commission finds that the dismissal of Mr Silva was harsh. 170 Nevertheless, in the circumstances described in detail above, reinstatement or reemployment are not viable propositions. Monetary compensation, therefore, is the only remedy available. Orders 171 Pursuant to s 89(5) of the Industrial Relations Act 1996, the Commission orders that: 1. St Vincents Hospital Sydney Limited shall pay to Mr Kumistheru (Michael) Silva an amount of compensation equivalent to five (5) weeks' pay at the rate of pay at the time of his termination; and 2. The above amount is to be paid within twenty-one (21) days of today. I Tabbaa Commissioner

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