Mr Jason Ratcliffe was employed as a battery operator at the BHP steelworks at Port Kembla under the terms of the Iron and Steel Works Employees (Australian Iron and Steel Pty Limited) Port Kembla Award. On Tuesday, 28 November, 2000 his services were terminated after almost eleven years of employment. The Australian Workers' Union, of which Mr Ratcliffe is a member, lodged an application on his behalf under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof.

The matter was allocated to me and I listed it for a preliminary hearing on Wednesday, 10 January, 2001 (in Sydney) and mentions on Wednesday, 28 February, 2001 and Wednesday, 14 March, 2001 (both of which occurred in the AMP Centre in Wollongong) in an effort to settle the matter. Conciliation failed to settle the AWU claim on behalf of Mr Ratcliffe however and I scheduled it for arbitration on Monday, 9 July, 2001 and Tuesday, 10 July, 2001, also in the AMP Centre in Wollongong. In the hearing Mr Whiley, accompanied by Mr Anderson, represented Mr Ratcliffe and the AWU and Mr Brotherson represented BHP.

Mr Ratcliffe's history file details a number of warnings in relation to absenteeism, poor attendance, unsatisfactory work performance and threatening and abusive behaviour, which included two final warnings. Mr Ratcliffe has described himself as a person who was "...different and did not really fit in...". His hair, in a Rastafarian style, extends far down his back. In a diagnostic interview Mr Ratcliffe described himself as "erratic" and indicated that a friend has described him as the "Chaos Theory personified".

Mr Ratcliffe nevertheless wanted to be part of the workplace team at the BHP steelworks and has apparently made several attempts to fit in. There is, as Mr Brotherson submitted in the hearing, an element of tragedy about Mr Ratcliffe's desire to fit in. It appears to me that his individualism does not conform with the team spirit which BHP is attempting to foster at the steelworks. In fact, with his appearance he sets an incongruous figure in the BHP steelworks.

Of course, it is not a dismissible offence to be an individualist, to fail to conform with established community norms or get on well with fellow employees. In many ways such an attitude may be a plus for an employer as it brings into the workplace different talents and attitudes. But it seems doubtful to me that the established and, from his point of view, confining culture at the BHP steelworks would ever make it easy for Mr Ratcliffe to fit comfortably in on his terms. His employment potential would lie elsewhere, where he has a greater opportunity to express himself. I understand he has received counselling to that effect.

And Mr Ratcliffe's poor attendance, unsatisfactory work performance and misconduct at work is not excused by the fact that he is an individualist. Mr Ratcliffe's dismissal, in fact, flowed out of an incident in the evening of Wednesday, 22 November, 2000 when Mr Ratcliffe was attending a residential team building workshop with other members of his crew. That workshop was conducted at the Seascape Manor at Gerringong and it ran from Wednesday, 22 November, 2000 to Friday, 24 November, 2000.

"...each participant is welcome to two standard pre-dinner drinks with standard wine and beer with dinner and a responsible number of after dinner drinks. Top shelf drinks and premium beers are not included. The bar will close at 11.00pm and no further drinks will be served after this time..."

Participation in the workshop was voluntary but employees who did take part in it were paid for their attendance. Mr Ratcliffe understood that attendance at the workshop was voluntary and, at first, he did not propose to attend it. Mr Whiley called Mr Ratcliffe to give evidence in the hearing and he acknowledged in his evidence that he has had a serious problem with the consumption of alcohol in the past which has "...got him into trouble...". He claimed in his evidence that he had not consumed alcohol for approximately three years. Consequently, he has tried to avoid situations where he may be tempted to drink and, knowing that there would be alcohol available at the manor, he was reluctant to attend the workshop.

Mr Ratcliffe's annual leave ended on Thursday, 23 November, 2000 (although in his evidence he appeared to be unsure of that fact). Nevertheless, he was still on annual leave and at home when on Wednesday, 22 November, 2000 he received a telephone call from a team mate who was at the workshop and who told him that he "...had to get down there...". Mr Ratcliffe took that invitation - which I am satisfied was all it was in fact - as a direction. He put some clothes into a backpack and left home immediately, arriving at the manor at approximately 3.30pm at which time the course was just about completed for that day. He attended what was left of the course to its conclusion on that day.

Employees had the option of staying overnight at the manor or returning to their homes each night at the conclusion of the activities during the day. A lift was arranged for Mr Ratcliffe to return to his home at approximately 5.30pm to feed his dog and cat. It would have been better had he remained at home at that time and made arrangements for a lift to take him to the manor in the morning for the next sessions. Instead, Mr Ratcliffe returned to the manor, arriving there at approximately 6.30pm. Mr Ratcliffe is a vegetarian. A vegetarian meal was provided for him which he ate.

Mr Ratcliffe's evidence, contained in a written statement which he provided in accordance with my directions, was as follows:

"...When I arrived, everyone had finished dinner and most of them were drinking. I had some dinner and people were asking me to join them for a drink. I refused many times and finally enough pressure was put on me to be part of the team and have a drink. I had a couple of drinks and I cannot remember very much from that point on..."

Mr Ratcliffe claimed that somebody had put chilli in his second beer but he nevertheless drunk it. He claimed that he was egged on to further beers by the other employees and the waiter who kept telling him that the drink would not hurt him.

Recognising his problem with alcohol, Mr Ratcliffe should have confined himself to drinking soft drink or mineral water. As Mr Brotherson suggested, he might have gone to his room and watched television. Either options would have been better than the course he chose - to continue on drinking beer and, in doing so, becoming drunk and abusive to other employees. But Mr Ratcliffe wanted to be part of the team and that meant to him that he had to continue drinking.

Mr Neil Harvey, an human relations consultant whom BHP engages for counselling services for its employees (and whom Mr Ratcliffe has consulted from time to time in the past), was present at the workshop. He was not called to give evidence in the hearing by Mr Brotherson but he indicated in a written statement which became part of the evidence in this hearing that he had gone to bed at approximately 11.15pm on Wednesday, 22 November, 2000. At that time he had observed Mr Ratcliffe and formed the view that, although he tended to be speaking loudly, he was not acting aggressively or unfriendly. However, around midnight things appear to have got more rowdy and there was noises. Mr Harvey was not able to identify voices from his room.

Mr Harvey was confronted by the owner of the manor as he went to breakfast at about 7.50am on Thursday, 23 November, 2000. The owner informed him of six missing bottles of wine which had been taken from the display table overnight. He also spoke of abuse that he had received from Mr Ratcliffe. Apparently, Mr Ratcliffe had locked himself out of his room, or had been locked out by somebody else, and the owner told Mr Harvey that Mr Ratcliffe had become very abusive to him, asking him for a cigarette and, when the owner replied that he did not smoke, telling him to "fuck off". Mr Ratcliffe had also apparently complained to the owner that he had "...a terrible night's sleep..." and the manor was "...the worst place he had ever stayed...".

Mr Ratcliffe had left the manor in the morning of Thursday, 23 November, 2000, and hitchhiked a ride to his home, without notifying anyone of the fact. It was subsequently discovered that a sign on the premises of the manor had been damaged, a volleyball net had been destroyed and a dent had been placed in the door of car of one of the course facilitators. Also there were the six missing bottles of wine. The housekeeping staff at the manor apparently recovered three of those bottles unopened from Mr Ratcliffe's room and three empty bottles were with the rubbish from the other rooms. It is not so surprising therefore that complaints had been made by the owner of the manor.

Attempts to contact Mr Ratcliffe were unsuccessful. He was due to resume normal duties at the steelworks in the afternoon shift on Saturday, 25 November, 2000 but he did not present himself for work then. Nor did he attend work on Sunday, 26 November, 2000 or Monday, 27 November, 2000. He understood that he was still on annual leave. Mr Trevor Beaver, a senior supervisor (cokemaking) at the steelworks, whom Mr Brotherson called as a witness in the hearing, finally reached contact with Mr Ratcliffe on his mobile telephone on Tuesday, 28 November, 2000. It was Mr Beaver's impression that Mr Ratcliffe was embarrassed by his conduct and he recalled Mr Ratcliffe saying:

And arrangements were made for a meeting with Mr McClure later that day at which Mr Ratcliffe was dismissed.

Mr Andrew McClure, at that time a superintendent for Nos 4, 5 and 6 batteries at the steelworks, was called to give evidence in the proceedings by Mr Brotherson. He had investigated the incident and had been informed by BHP employees that Mr Ratcliffe had been abusive, yelling, kicking in doors and throwing the keycard which opens the front door of the manor out into the carpark. Mr McClure arranged the meeting with Mr Ratcliffe and he recorded in the written statement which he provided that:

"...at the commencement of this meeting I questioned Mr Ratcliffe about his behaviour on the evening of Wednesday, 22 November, 2000. I told him that he was described as having been very drunk, having abused certain employees and that there had also been a significant amount of property damage, which all indications were that he had been responsible for. Mr Ratcliffe claimed that he did not remember anything about the evening. He did, however, claim that certain things during the evening had upset him. He exampled comments about his skin colour, that he had failed to complete the Sydney to Wollongong bike ride and that someone had put chilli in his beer. Mr Ratcliffe suggested to me that he should be allowed to take voluntary redundancy. I told Mr Ratcliffe that this was not an option..."

Mr Ratcliffe had formerly put his name forward for voluntary redundancy and had been accepted by BHP for it. He had changed his mind however and rejected the offer which he had invited. Mr Beaver claimed that he spoke to Mr Ratcliffe on Wednesday, 1 November, 2000 at which time:

"...Mr Ratcliffe acknowledged that he was behind the pack as an operator, but he made it clear that he did not want voluntary redundancy and that he desired to become the best operator..."

But Mr McClure is now right: the question of voluntary redundancy is no longer on the table for Mr Ratcliffe. It lapsed when he rejected the offer originally held out to him in that respect.

A number of other recommendations were made to BHP management by Mr Ratcliffe's fellow employees to preserve his employment with BHP. The gist of those recommendations was to retain him in employment, subject to his expressing regret for his actions and undertaking to in future work safely, modify his behaviour and not act threateningly to any individual employee. They are hardly a glowing endorsement from Mr Ratcliffe's fellow employees, in my opinion, and they hedge in his continued employment on very strict terms. In any event, BHP management considered those recommendations but rejected them.

As Mr Whiley submitted, there is no direct evidence before me in this hearing that Mr Ratcliffe was responsible for the damage to the property of the manor or the car of the course facilitator. Everything comes to me as secondhand. Nor, for that matter, was there any direct evidence from any employee who had allegedly been abused. Ultimately, I am obliged to rely on Mr Beaver and Mr McClure who investigated the matter and formed their own view that Mr Ratcliffe was responsible for the damage to property, ie what Mr Beaver and Mr McClure obtained from other employees over the incident.

Evidence of that type is hearsay, of course, and Mr Whiley submitted that I should reject it on that account. Nevertheless, Mr Ratcliffe has conceded that he was drunk at the workshop in the evening of Wednesday, 22 November, 2000 and the fact that he cannot remember anything that happened that night after his second beer must confirm that to be the case. Notwithstanding the fact that Mr Brotherson did not advance any witnesses capable of giving direct evidence of events in the manor on Wednesday, 22 November, 2000, I do not believe that there is any reason to doubts that Mr Ratcliffe behaved as he has been described in this hearing, ie that he abused and threatened other staff members and the owner of the manor. I am satisfied that he did so.

And, as far as the property damage is concerned, BHP management had formed the view, most likely correctly in my view, that the damage was, in fact, Mr Ratcliffe's responsibility. Mr Harvey's claim, contained in a report he wrote, was that:

"...we all believed that it was Mr Ratcliffe even though there were no witnesses..."

It is here that the unsatisfactory record of Mr Ratcliffe's employment with BHP emerges as significant to my mind. Mr McClure indicated that Mr Ratcliffe's past conduct working for BHP was "...quite destructive...", confirming him in his view that he was the culprit on this occasion as well. Certainly, his fellow employees appear to have come to that conclusion, offering to pay for the damage and apologising to the owner of the manor on his behalf.

In my unreported decision of Monday, 19 June, 2000 in Smyth v. CGEA Transport Management Sydney Pty Limited [Matter No. IRC 6896 of 1999] I commented (at pp.17 and 18) that:

"...as a general rule and strictly following customary procedure in litigation, evidence of similar facts or acts in the past are usually not admitted into evidence. The evidence that a person has done similar acts in the past is irrelevant to show that the person did a particular act at a later time. But, as I see the situation, that is far from a hard and fast rule of evidence and there are many examples where past conduct has been received into evidence [Makin v. Attorney General for New South Wales (1894) AC 57, R v. Smith (1915) All ER Rep.262 and Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367]. In Hales v. Kerr (1908) 2 KB 601 Channell J explained the situation thus: `...It is not legitimate to charge a man with an act of negligence on a day in October and to ask a jury to infer that he was negligent on every day in September... But when the issue is that the defendant pursues a course of conduct which is dangerous to his neighbours, it is legitimate to show that his conduct has been a source of danger on other occasions, and it is a legitimate inference that, having caused injury on those occasions, it has caused injury in the plaintiff's case also...'"

In other words, the fact that Mr Ratcliffe has been responsible for property damage, outbursts of anger and abuse and threats to fellow employees in the past corroborates the likelihood - reaching the level in this case to an absolute certainty to my mind - that, on the balance of probabilities, he was responsible for both the abuse of fellow employees and the owner of the manor and the property damage on this occasion as well.

I have a suspicion that some of Mr Ratcliffe's work colleagues chose to assist him down the path of self destruction which he charted for himself on the night of Wednesday, 22 November, 2000. Nobody came forward to stop him drinking when it should have been clear to anybody that he had consumed enough. Somebody put chilli in Mr Ratcliffe's drink and may have locked him out of his room. It seems doubtful to me that Mr Ratcliffe was alone responsible for everything that went wrong that night at the manor. I note that the three empty bottles of missing wine were not found in Mr Ratcliffe's room (although the full bottles were). But I hold no doubt that Mr Ratcliffe must bear the lion's share of the blame. Furthermore, his conduct must be considered in the context of his unsatisfactory employment record.

There were sufficient grounds, in my opinion, for BHP to dismiss Mr Ratcliffe. In all the circumstances, I see no justification for my intervention in support of him in this hearing and I propose to dismiss the AWU Part 6 application lodged on his behalf.