s.643 application for relief in respect of termination of employment

[1] This matter concerns an application by Mr Robert Budd (the applicant) lodged under s.643 of the Workplace Relations Act (the Act) for relief in respect of his termination of employment by Dampier Salt (the respondent). The termination of employment took effect on 29 December 2006.

[2] The matter could not be settled in conciliation and a Certificate was issued under s. 650. Mr Budd elected to proceed to arbitration and consequently I was allocated the matter.

[3] Mr Budd was represented by Mr Cox of Counsel and Dampier Salt by Ms Cash of Counsel.

[4] The respondent is a member of the Rio Tinto group of companies and is an exporter of solar salt with operations in Port Hedland, Dampier and Lake Macleod in Western Australia.

[5] Mr Budd is 54 years of age and of Aboriginal descent. Mr Budd was employed as a Plant Operator at the respondent's Port Hedland operations. He was first employed on 3 March 2003.

[6] At approximately 6.OOpm on Thursday, 28 December 2006 prior to commencing his shift the Applicant was sitting in the main crib room with two other employees, Mr Yitting and Mr Lord. A third employee, Mr Melehan, was in the kitchen adjacent to the crib room.

[7] The crib room television was on and a news item showed pictures of Aboriginal people causing a disturbance outside a court house.

[8] Mr Yitting made a derogatory comment in response to the scenes on the television. The actual words used are disputed by the parties. Mr Budd believes Mr Yitting said "Fucking bunch of fucking ferals" in relation to the Aboriginal people featured in the news item.

[9] Mr Budd then got up from where he was sitting behind Mr Yitting and stood close to him. The respondent submits that Mr Budd then placed his hand on Mr Yitting's throat with sufficient force to push Mr Yitting backwards on his chair and to leave red marks on Mr Yitting's throat and leave him emotionally shaken.

[10] Mr Budd's version of what occurred was that he did get up out of his chair and stood close to Mr Yitting but did not touch Mr Yitting's throat. Rather he held Mr Yitting's shirt to get his attention and made it known to him that he objected to the comments that he viewed as racist. He believes Mr Yitting was not distressed or injured.

[11] The incident lasted only a few moments and then Mr Budd left the crib room. Mr Budd then asked Mr Lord who had witnessed the incident to drive him home and they left the site together.

[12] The incident was reported to Mr Harbinson, Production Supervisor, who reported it to Mr Czubek, Acting Operations Manager.

[13] Mr Czubek stood down both the Mr Budd and Mr Yitting. He also arranged for witnesses to the incident to prepare written statements.

[14] The following morning at 9.OOam Mr Czubek commenced an investigation into the incident. He met with Mr Budd on three occasions and separately with Mr Yitting to discuss what had occurred and to gain their respective responses. Throughout this process Mr Czubek received advice from the respondents Superintendent HR, Ms Lee.

[15] At the conclusion of the investigation process both Mr Budd and Mr Yitting were disciplined.

[16] Mr Budd's employment was terminated on 29 December 2006 for physically assaulting a co-worker by placing his hands on another employee's throat. Mr Budd received one month's pay in lieu of notice.

[17] Mr Yitting received a final written warning for making the comment.

[18] Mr Budd firstly submits that the superiors who conducted the investigation are friends of Mr Yitting's. The applicant argues that Mr Yitting was treated more favourably by the respondent than himself. During the investigation, Mr Budd was accused of grabbing Mr Yitting by the throat which he denied at the time explaining that he had only held the front of Mr Yitting's shirt.

[19] Mr Budd argues that he was provoked into reacting to Mr Yitting's comment about Aboriginal people.

[20] Mr Budd submits that he was not afforded a fair inquiry because the investigators were biased and had already pre judged the events in favour of Mr Yitting.

[21] Although Mr Budd signed a statement during the investigation he did not take care to ensure that it included all the matters that he had told his inquirers, nor did he notice that it included a statement that he states he did not make.

[22] Mr Budd submits that Mr Lord and Mr Melehan were not placed in positions in the crib room to witness the incident in a way that allows them to contradict his version of the events. Mr Lord was behind the applicant and Mr Melehan was in the kitchen.

[23] Mr Budd was unwell at the time of the incident due to a hernia and the flu. The applicant submits in contrast Mr Yitting is younger, bigger and stronger than Mr Budd and what is said to have occurred by the respondent is inconsistent with his work history.

[24] The applicant contends that the incident in question was precipitated by a racially offensive provocation by Mr Yitting. The incident itself was a spur of the moment reaction by the applicant that lasted a few seconds. Mr Yitting sustained no injury and sought no medical aide.

[25] The applicant argues that it was out of character for Mr Budd to be aggressive as he has a sound work record and had indicated that he was willing to undergo counselling and wished to move on from the incident.

[26] The applicant submits his version of events should be preferred but even on the respondent's finding of the events, that Mr Budd had grabbed Mr Yitting by the throat the termination was disproportionate to the offence.

[27] The applicant argues that the respondent had been insensitive to the issue of race in the workplace. The applicant has suffered termination whilst Mr Yitting has retained is job with only a waring.

[28] The applicant a long term resident of Port Hedland has suffered significant economic loss as a result of the termination and has been unemployed for three months. In addition, Mr Budd has been forced to move to Geraldton to seek alternative employment.

[29] The respondent must establish on a balance of probabilities that the decision to dismiss for misconduct was sound, defensible and well founded.

[30] In examining whether there was a valid reason for the termination, it is not the role of the Commission to substitute its view for that of the employer but to assess whether the employer had a valid reason. [1]

[31] The respondent submits that it had a valid reason for the termination of the applicant's employment as follows:

• the applicant engaged in misconduct in the workplace having assaulted Mr Yitting by placing his hand firmly around Mr Yitting's throat during an incident in the crib room;

• the respondent had a clear policy that inappropriate workplace behaviour was a dismissible offence and the applicant knew this;

• the applicant was aware that such action would have disciplinary consequences; and

• the applicant's conduct had a negative impact on the respondent's workplace, which views the safety of employees in the highest regard.

[32] Circumstances such as those in the present case clearly constitute a valid reason for dismissal [2] and the Commission should conclude that there was a valid reason for the dismissal.

[33] The evidence shows the applicant was notified of the valid reason for the termination of his employment which occurred during the investigation on 29 December 2006.

[34] Further, the applicant was given ample opportunity both to know the reason for his termination and to respond to the reason which he did on 29 December 2006 by means of providing the respondent with a statement of events. The respondent submits that the applicant had a reasonable opportunity to respond to the allegations against him. This opportunity was given to the applicant prior to the decision being made to terminate his employment.

[35] The allegations against the applicant were set out in detail at the meetings with the investigator, Mr Czubek, on 29 December 2006. The meetings were attended by the applicant's chosen witness, Mr Todd. At these meetings the applicant provided his written statement in relation to the allegations against him.

[36] It is acknowledged that the respondent is a large employer who employs dedicated HR specialists to assist their various subsidiaries. In undertaking the investigation into the applicant's misconduct the respondent's Superintendent HR, Ms Leonie Lee, provided guidance to the investigator, Mr Czubek, at all stages of the process.

[37] The respondent acknowledges there are a number of other factors which the Commission may consider relevant in these circumstances which are provided as follows.

[38] The respondent submits that it conducted a thorough investigation into the incident. It provided the applicant with ample opportunity to present his version of events and explain his actions.

[39] The respondent in making its decision to terminate the applicant's employment also had the benefit of the following material obtained during the investigation:

• a witness statement from Mr Lord who was present during the incident as well as a further questioning of Mr Lord;

• a witness statement from Mr Harbinson who came to the crib room after the incident occurred and spoke with both the Applicant and Mr Yitting;

• a witness statement from Mr Melehan who was in the crib room kitchen when the incident occurred.

[40] The respondent submits that the evidence shows that Mr Yitting's statement was made without an intention to provoke and was not malicious.

[41] It is further submitted that if the Commission were to accept that the applicant was provoked into reacting in the manner in which he did the Commission should find that based on the evidence, the reaction of the applicant was disproportionate to the alleged provocation. It is hard to reasonably explain how the statement made by Mr Yitting led to Mr Budd's violent reaction.

[42] The applicant had only been employed by the respondent for only three years which is not considered a substantial period of service and therefore is not relevant here.

[43] The respondent submits that its "The Way We Work" policy is clear in enunciating what is expected of employees in the way they behave in the workplace and the need to maintain a safe workplace.

[44] The respondent operates a large industrial operation. If employees fail to carry out their duties in accordance with all relevant safety policies and procedures there are increased risks of injury or death.

[45] The evidence shows that the applicant himself did not bring up any issues in this regard during the interview process. It was only in response to a direct question by Mr Czubek that the applicant raised that he had had the flu at the time of the incident. The Applicant did not pursue this.

[46] The respondent submits that the applicant's race was in no way related to his termination of employment. The applicant was dismissed for physically assaulting an employee in the workplace.

[47] Given the above the respondent submits that the relevant factors as set out in s.652(3) of the Act do not support a finding that the dismissal was harsh, unjust or unreasonable.

[48] Mr Budd and his wife both gave evidence in this matter and the respondent called Mr Czubek, Mr Yitting, Mr Lord, Mr Harbinson and Ms Lee.

[49] The evidence of Mr Budd regarding the incident in the crib room was that there was a news item involving the Krakouer brothers and other Aboriginal people outside a Court. Mr Yitting was looking at this and he said "You fucking bunch of fucking ferals." What happened next in Mr Budd's words was - "My reaction I didn't think - I walked around, held him by the shirt and called him a 'fucking racist'. He said, "Let me go" and I let him go." [3]

[50] Mr Budd was questioned about a witness statement that a fellow employee, Mr Melehan had written immediately following the incident that also stated that Mr Budd had grabbed Mr Yitting by the shirt. Mr Budd's evidence in his written statement was that he had observed that Mr Melehan was in the kitchen and not in the crib room and could not see what was going on. Mr Budd's oral evidence [4] confirmed his belief that Mr Melehan could not see what was going on because at the time he could not see Mr Melehan himself because Mr Melehan was around the corner in the kitchen. [5]

[51] Mr Budd in cross-examination with respect to the television news report indicated that the cameras were on a group of people outside a Court who were yelling and screaming and carrying on. He was unshaken in his belief that the words Mr Yitting used were "Fucking bunch of fucking ferals". [6] Mr Budd states that at the time of the incident Mr Yitting was glued to the television. He also said that immediately prior to approaching him Mr Yitting was leaning back on the table behind him.[7]

[52] Mr Budd's evidence was that he held Mr Yitting by the shirt and called him a "racist" and that he did so to get his attention. [8] Mr Yitting did not retaliate at all.[9] After the incident he did not wish to listen to anything Mr Yitting wanted to say and did not hear anything that he did say.[10] Mr Budd stated that he then immediately left the crib room. [11]

[53] Under cross-examination Mr Budd acknowledged that a statement that he made in his written statement that afterwards Mr Yitting was laughing and not upset was included only after he had read a written statement of Mr Turner which included this same observation. Mr Budd acknowledged that he did not know at all how Mr Yitting felt after the incident. [12] Mr Budd acknowledged that his evidence on Mr Yitting's state after the incident was based on someone else's statement.[13]

[54] Mr Budd acknowledged that the comment made by Mr Yitting was not made or directed to him personally but his evidence was that it was directed at all Aboriginal people. [14]

[55] Mr Budd presented as an articulate and capable individual as demonstrated by his sound grasp of his employment obligations, his preference to deal with any health issues separately from work so as not to jeopardise future employment opportunities and that he is an active real estate investor owning two investment properties, in addition to his residence in Port Hedland, one in Port Hedland and one in Geraldton. [15]

[56] The evidence of Mr Yitting with respect to the incident was that he and Mr Lord were sitting at tables in the crib room and that Mr Melehan was in the kitchen adjacent to the crib room. There was a news story about a court case involving the Krakouer brothers who are Aboriginal football players. It showed them leaving the Court under a police escort amongst scenes of people including their family who were yelling and screaming at the police. Mr Yitting viewed this behaviour as thoughtless and stupid - to be yelling at the police who were just doing their job and his evidence was that he said out loud to the television "You fucking idiots".

[57] Mr Yitting heard a chair scraping on the floor behind him, then heard Mr Budd say "It's because they're black isn't it?" and Mr Budd came around in front of him, leaned forward and grabbed him by the throat with his right hand. Mr Budd had his left hand clenched tightly in a fist. Mr Yitting said that he was still in his chair, that the grip on his throat was restricting his breathing and was forcing his chair back so that it was balanced on its two back legs. Consequently Mr Yitting had his arms stretched out behind him to the table at his rear to ensure he did not fall.

[58] Mr Yitting's evidence is that by this stage Mr Lord had got out of his chair and was standing behind Mr Budd looking on. Mr Budd then let him go and said something to the effect that "He was not working with any racists".

[59] Mr Yitting stated that he tried to say to Mr Budd "That's not what I meant, it's because they're idiots fighting in the street". By this stage Mr Melehan had also come from the kitchen into the crib room. Mr Yitting's evidence is that he then told Mr Budd not to ever touch him like that again.

[60] Mr Yitting stated that Mr Budd then started to walk towards the door and that he tried to walk behind him and to explain to Mr Budd that his statement was not racially targeted but was directed at the behaviour of the people outside the Court saying "I wasn't indicating anything towards any type of race. It was just a comment I made in general."

[61] Mr Budd did not stop but grabbed his Esky and left the crib room and on the way he said "Bananas (a nickname for Mr Lord) take me home".

[62] Mr Yitting's evidence was that he was shocked and stunned and could not believe that Mr Budd had reacted so violently when the comment was not directed at him.

[63] Mr Harbinson then arrived at the crib room and shortly after that Mr Yitting went to the bathroom and looking in the mirror saw there was a big red mark on his throat he presumed was from where Mr Budd's thumb was when he held him around the neck. Mr Yitting denied that at the time immediately prior to the incident with Mr Budd that he was already leaning back on his chair with two legs off the ground.

[64] Challenged under cross-examination Mr Yitting was adamant that Mr Budd had grabbed him by the throat and had forced his chair backwards so that he was balanced on the two rear legs and that Mr Budd's left hand was tightly clenched in a fist.

[65] Mr Yitting gave a clear and detailed explanation in his own words. [16] His evidence was that after the incident he had been shaken up and scared. Mr Yitting explained that he had asthma and that one of his fears is of suffocation. Having his breathing restricted always worries him and this was one of the reasons that he was so shaken by the incident.

[66] Mr Yitting also confirmed his understanding that because of his involvement in the incident that there was always a risk that he could loose his job and that he was conscious that fighting or assault usually leads to dismissal. [17]

[67] Mr Yitting's evidence was that prior to the incident his relationship with Mr Budd had always been good. [18]

[68] Using his own words Mr Lord explained what he witnessed as follows:

"Okay. Can you in your own words explain to the Commissioner what exactly happened?---In my words, we were watching TV, I was sort of diagonal as I usually do, because other people are in the room so I have my back towards them. A story came on about the Krakouer brothers and somebody was going to court, and outside the courthouse yelling and screaming, carrying on, Anthony Yitting said, oh, what a bunch of fucking idiots, or idiots. Bob Budd senior got up out of his chair, walked around the front sort of diagonal to Mr Yitting, grabbed him by the throat, he was pushed back against the table behind him, he was yelling something like "what did you say you prejudiced cunt and called him - because they're black, and said that a couple of times. And then he got - I got up and walked to the side of Bob, what did you mean, because I was just waiting for him to let go, I didn't want to - if it had have gone on any longer I would have had to - Bob's a big bloke. He then let Anthony go. He was very angry at the time. He walked away. Anthony got up out of his chair holding his neck, coughing a couple of times, and said to Bob, don't ever grab me around my throat again. Bob then started pacing back towards Anthony. I thought he was going to have another go at him but he didn't. He sort of like gathered his composure and stormed out of the room again, then came back and said to me whether I could drive him home. I said yes. And then we left." [19]

[69] Mr Lord's evidence was that after the incident he was immediately requested to provide a hand written statement which he did. This statement refers to "Wiz" which is Mr Yitting. Mr Lord was very precise in his evidence to the point where he asked for corrections to be made to his written witness statement involving fine detail such as whether when he had risen from his chair he was behind or beside Mr Budd. [20]

[70] Under cross-examination Mr Lord was adamant that prior to Mr Budd's intervention that Mr Yitting was not leaning back on the rear legs of his chair. Mr Lord explained that he was sitting sideways to the television but was able to see the television off to one side and was at the same time facing Mr Budd and Mr Yitting.

[71] Mr Lord was adamant that his statements were truthful and that immediately after the incident when he was asked to go away and make a written statement that he did not confer at all with Mr Yitting. [21]

[72] Mr Lord confirmed that after the incident Mr Yitting was in a state of shock. [22] Mr Lord clarified that he was not particularly a mate of Mr Yitting's. Under challenge Mr Lord again confirmed that he saw Mr Budd's hand around Mr Yitting's throat.[23]

[73] The applicant points to the hand written statement of Mr Melehan made immediately after the incident and challenges the respondent as to why Mr Melehan's evidence was not seen as refuting that of Mr Yitting and Mr Lord as it would appear to do on its face.

[74] The statement of Mr Melehan was tendered by the respondent as an attachment to the witness statement of Mr Czubic. That statement indicates that at the time of the incident Mr Melehan was at the sink area getting a cold drink whilst Mr Budd, Mr Lord and Mr Yitting were in the television area. Mr Melehan's statement was that he heard a chair move suddenly and did not think too much of that until he heard it again and then looked around the door way to see what was going on. At that point he saw Mr Budd holding the shirt collar of Mr Yitting at the table of where Mr Yitting had been seated. In the next couple of seconds Mr Budd released his grip on Mr Yitting and said something to him and left the room.

[75] What is self evident from this statement is that Mr Melehan did not see the full incident. His view was obscured being in the kitchen rather that in the television area when Mr Budd first got up in front of Mr Yitting. The chair scraping that drew Mr Melehan's attention was consistent with this activity. In effect Mr Melehan's statement is only that he witnessed the last few seconds of the interaction between Mr Budd and Mr Yitting. In that sense the statement of Mr Melehan is not seen to be in direct contradiction to Mr Yitting's and Mr Lord's evidence because Mr Melehan's observations were only of the last few seconds of the interaction between Mr Budd and Mr Yitting. It may well be that Mr Budd having grabbed Mr Yitting's throat immediately before fully releasing him removed his grip to his shirt or collar. However the Commission had no opportunity to reconcile the conflict the applicant pointed to between Mr Melehan's written statement and the evidence of Mr Yitting and Mr Lord given under oath and tested in cross examination.

[76] The evidence of Mr Czubic is supportive of this interpretation of Mr Melehan's statement. [24]

[77] The interpretation the applicant submits the Commission should give to the written statement of Mr Melehan is contradicted by Mr Budd's own evidence. [25] Mr Budd says Mr Melehan did not witness the incident.

[78] The issue for the Commission is that Mr Budd's evidence is at odds with that of Mr Yitting's. Mr Melehan was not called to give evidence by either party. To resolve that conflict in these circumstances it is not reasonable to give more weight to an untested written statement from Mr Melehan than is given to the written statement and sworn evidence of Mr Lord and that of Mr Budd. This is what the applicant submits the Commission should do. I decline to do this in the manner the applicant urges.

[79] The applicant also called Mr Frank Turner to give evidence as to what he had seen occur immediately after the incident between Mr Budd and Mr Yitting in the crib room. Mr Turner's evidence was that after he had finished day shift, very soon after 6:00pm he got in his vehicle to drive home, and then he saw Mr Budd and Mr Lord come out of the crib room and walk over to the vehicle that is used to transport workers to and from work. Mr Turner drove contrary to the traffic flow in the area to the front of the crib room and wound down his window to ask Mr Harbinson what was going on. He saw Mr Yitting speak with Mr Harbinson. Mr Yitting was laughing and joking and saying he did not know what he had said but that it had upset Mr Budd. Mr Turner's evidence was that Mr Yitting was not in a distressed state or upset. Mr Turner then drove off home. This was the evidence provided in his written statement.

[80] In his oral evidence when cross-examined Mr Turner stated simply that he had a conversation with Mr Harbinson enquiring what was going. [26] With reference to what he observed Mr Turner stated as follows:

"…Well, Mr Harbinson asked Mr Yitting what just happened, what's going on and Phil Melehan shrugged his shoulders and Mr Yitting sort of had a smile on his face and jokingly said, "I don't know what I've said but I've said something to upset Bob". [27]

[81] Mr Turner acknowledged that at this stage he had no knowledge of the incident that had occurred between Mr Budd and Mr Yitting. With respect to how Mr Yitting appeared to him at this point he said:

"…Well, I mean you can tell if someone's been supposedly roughed up or however distraught they'd be, he didn't seem to be in a distraught sort of manner to me when I seen him." [28]

[82] The applicant argues this evidence demonstrates that the incident was not serious because Mr Yitting was not upset by what had occurred.

[83] The respondent however challenged the validity of Mr Turner's evidence submitting that it was a fabrication given in support of his friend Mr Budd. [29] The respondent points to the evidence of Mr Harbinson who said that he did not at all recall seeing Mr Turner.[30] The respondent argues that driving contrary to the traffic rules on site, which is a serious matter, seems unlikely and that the time frame that Mr Turner speaks of is inconsistent with the boom gate records. These records show Mr Turner leaving site at 6:03pm which is exactly the same time that the boom gate records show Mr Budd and Mr Lord driving through the gate.[31]

[84] Whilst the respondent cast some doubt on the credibility of Mr Turner's evidence the fact that Mr Harbinson does not remember a brief interaction between himself and Mr Turner which was of no significance at the time does not conclusively undermine Mr Turner's evidence.

[85] The issue of the timing of the boom gate records points more to the fact that what Mr Turner states he did which was to pull up in front of the crib room and ask a single question of Mr Harbinson whilst observing Mr Yitting took a very short period of time, not minutes as Mr Turner suggested. At the same time as this was occurring Mr Budd and Mr Lord, who Mr Turner had noticed, were walking to their vehicle. They had then to get in, start it up and drive off. This was occurring at the same time as Mr Turner who was already in his vehicle was speaking to Mr Harbinson. In short both events probably occurred more or less simultaneously, overlapping enough so that Mr Turner did follow Mr Budd and Mr Lord out through the boom gates with less than a minute between the two vehicles, consistent with the boom gate records.

[86] I do consequently accept Mr Turner's evidence on its face. However that evidence is nothing more than the fact that he observed Mr Yitting speaking to Mr Harbinson and Mr Yitting did not appear distraught but rather:

"…Mr Yitting sort of had a smile on his face and jokingly said, "I don't know what I've said but I've said something to upset Bob". [32]

[87] This evidence of Mr Turner provides very little support however to the applicant's case. The written statement of Mr Turner would seem to exaggerate what he saw. His written statement refers to Mr Yitting as 'laughing and joking'. Mr Turner's oral testimony was a lesser version of this.

[88] At best this evidence proves that after the incident Mr Yitting, when speaking to Mr Harbinson, smiled and spoke to Mr Harbinson in a joking manner. What in any event does this mean? The applicant says this proves the incident was not serious because it shows that Mr Yitting was not upset by it. However other explanations for Mr Yitting's observed behaviour exist. It could be that having just experienced a nasty confrontation immediately thereafter he was fortified by adrenalin, or relieved or embarrassed or responding with bravado. All of these alternative explanations are consistent with what had occurred previously between Mr Budd and Mr Yitting.

[89] Ultimately, I do not accept the evidence of Mr Turner in any way as reducing the seriousness of the incident between Mr Budd and Mr Yitting.

[90] Mr Cox proposes that in a case such as this the Commission must apply the approach found in Briginshaw v Briginshaw [33] so that given the gravity of the allegation against the applicant I must apply a stricter standard of proof. This approach has been endorsed previously by the Commission in G Young v GW Closter & Sons Pty Ltd.[34] I accept that this approach is applicable in this instance.

[91] Having considered the witness statements of Mr Budd, Mr Yitting and Mr Lord and having had the opportunity to hear their evidence as witnesses I have no reason not to accept the evidence of Mr Yitting and Mr Lord over that of Mr Budd with respect to whether or not Mr Budd in responding to the comment made by Mr Yitting grabbed him by the throat rather than by the shirt as Mr Budd would have the Commission believe.

[92] Mr Lord's and Mr Yitting's original statements, hand written immediately after the incident, are consistent with the evidence that they had given to the Commission. For the reasons already explained the written statement of Mr Melahan cannot be accepted as evidence to the contrary.

[93] Neither Mr Yitting nor Mr Lord were shaken in cross-examination on the detail of the incident and there is no suggestion of any complicity between Mr Lord and Mr Yitting.

[94] Mr Lord presents as a credible witness who demonstrated a desire to be precise and particular about his evidence, not in a defensive manner but rather in a considered and honest manner.

[95] There is no evidence of Mr Lord having a personal relationship with Mr Yitting that would cause him to blindly support Mr Yitting's version of events nor is there any suggestion let alone evidence that there is any animosity between Mr Lord and Mr Budd. In fact it is notable that when Mr Budd stepped back from the confrontation with Mr Yitting and went to leave the crib room it was Mr Lord he asked to drive him home.

[96] I do not accept that Mr Budd has been treated less favourably because of any supposed close relationship between those involved in the investigation and Mr Yitting. There is nothing in the evidence to support such a view.

[97] Having considered all of the events and applying the stricter standard of proof I find that Mr Budd did hold Mr Yitting by the throat with sufficient force to push him back on his chair such that he was at risk of falling backwards if it were not for him being supported by the table immediately behind.

[98] Section 652(3) of the Act sets out for the purposes of the arbitration of a termination of employment matter such as this what issues the Commission must have regard to in determining whether the termination was harsh, unjust or unreasonable.

"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(g) any other matters that the Commission considers relevant."

[99] In considering whether the termination of the Applicant's employment was harsh, unjust or unreasonable the Commission must have regard to each of the factors in s.652(3) of the Act.

Section 652(3)(a) - Valid reason

[100] In determining whether there was a valid reason for the termination, it is not the role of the Commission to substitute its view for that of the employer but to assess whether the employer had a valid reason as per Justice Moore in Walton v Mermaid [35]:

"It is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct...."

[101] As I have said I accept that what occurred in the crib room between Mr Budd and Mr Yitting was that following the comment by Mr Yitting, Mr Budd did hold Mr Yitting by the throat with sufficient force to push Mr Yitting backwards so that he was balanced on the rear legs of his chair.

[102] Both parties, with their own reasoning, referred me to a number of cases involving fighting and/or assault in the workplace. [36] An act of an assault by an employee on another has previously been held to justify the dismissal of the offending employee in many previous cases before this Commission and other tribunals.

[103] The respondent raised the Sutton v Bisalloy Steels Pty Ltd [37] decision of Commissioner Cargill pointing to the similarity in the facts. This case involved a finding that an employee had carried out an unprovoked assault of a supervisor, albeit, not the employees direct supervisor. The assault occurred in the crib room and involved holding the supervisor against the wall with one hand to the base of the throat for a few seconds. Notwithstanding a number of extenuating circumstances, the Commission concluded that this conduct involved a valid reason for termination.

[104] In my view the assault by Mr Budd on a fellow employee is clearly misconduct that, in the absence of other mitigating circumstances, would entitle the respondent to terminate Mr Budd's employment. I am satisfied that what occurred in this case did provide a valid reason related to the employee's conduct for the respondent to terminate the employment of Mr Budd.

Section 652(b) - Notification of the reason

[105] The respondent's reason for termination was set out in the letter of termination that was given to the applicant by Mr Czubek on 29 December 2006.

[106] This explains that the assault on another employee "… by placing your hands on his throat" were the reasons for termination.

[107] The applicant in closing submission argued that this was never actually put to Mr Budd during the investigation process, that he was not aware that he was alleged to have grabbed Mr Yitting by the throat.

[108] What is clear is that throughout the investigation process Mr Budd had no doubt that the incident between himself and Mr Yitting was under investigation and that his job was at risk. In the final meeting when Mr Czubek was explaining that the company intended to terminate his employment it was made plain to Mr Budd that the finding of the investigation was that he had grabbed Mr Yitting by the throat. Mr Budd concedes that was said to him at that meeting and that he was then asked whether there were any further matters that Mr Budd wished to raise as to why he should not be terminated. Mr Budd than replied that it was a once off incident, that he could still work with Mr Yitting and that he had a good work record. After considering this Mr Czubek confirmed that he was to be terminated. [38]

[109] At the very least during this conversation Mr Budd new with precision the reasons he was to be terminated. In any event other evidence suggests that quite early in the investigation he was aware of the allegation that he had grabbed Mr Yitting by the throat and that this was under investigation.

[110] Considering what transpired with the investigation and the multiple interviews with Mr Budd I am satisfied that the applicant was notified of the reason for the termination of his employment.

Section 652(c) - Opportunity to respond

[111] The interview and investigation process carried out by Mr Czubek did provide an opportunity for the applicant to respond to the reason the respondent was considering terminating his employment for. Mr Budd was asked to explain what had happened between him and Mr Yitting and why it had happened. He was allowed to nominate a witness to attend the first interview and did so. He made a statement which was recorded in writing and which was edited and revised a number of times at his request. In the final meeting with Mr Czubek he was also given an opportunity to respond to the employers explained intention to terminate his employment and in fact did take this opportunity as mentioned above.

Section 652(d) - Prior warnings

[112] In a case such as this where the reason for termination was a single incident of misconduct this section dose not apply.

Section 652 (e) - Impact of employer's size of undertaking and human resources capabilities?

[113] The respondent is a substantial employer and the procedures followed were consistent with what should be expected of such an organisation. A significant effort, in terms of the seniority of the people involved and the efforts they took to investigate the incident, was made as was appropriate in this matter.

Section 652 (F) - Impact of employer's human resources capabilities?

[114] Similarly the respondent does have dedicated human resource management specialists in the business and their advice and guidance was appropriately called upon by the decision makers in this matter as would be expected.

Section 652(g) - Other relevant matters

[115] There are a number of other factors which the Commission may consider relevant in these circumstances.

[116] The applicant submits that he assaulted Mr Yitting because he was offended by the comment made by Mr Yitting. Mr Cox for the applicant refers to the decision in AWU-FIME Amalgamated Union v Qld Alumina Ltd [39] as precedent for the proposition that not every person guilty of fighting at work should necessarily be dismissed. There can be extenuating circumstances that would make that unfair. The principle is expressed by Moore J as follows:

"What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence." [40]

[117] The respondent however argues that Mr Yitting's statement was made without an intention to provoke and was not malicious.

[118] The question then is was Mr Budd provoked by Mr Yitting such that the provocation is an extenuating circumstance that means he should not be terminated for his conduct?

[119] The Cambridge dictionary includes the following definitions:

to make or try to make a person or an animal angry:_

an action or statement that is intended to make someone angry:_

[120] It is notable that "provocation" and "provocative" both are defined to include an element of intention.

[121] There is no evidence or suggestion by the applicant in this instance that Mr Yitting made the comment with the intent of making Mr. Budd angry or intentionally to cause an angry reaction.

[122] However, clearly the words of Mr Yitting did cause the reaction from Mr Budd.

[123] Mr Cox for the applicant points to the case of Yew v ACI Glass Packaging Pty Ltd [41] as being the most similar to the circumstances in this matter.[42] This case endorses the approach regarding fighting of Moore J in AWU-FIME Amalgamated Union v Qld Alumina Ltd above. The Yew[43]case has similarities to this matter but only to the extent that the termination of Mr Yew was because of his involvement in a fight in the workplace and the termination was challenged in part on the basis that Mr Yew had been provoked by the racist behaviour of other workers.

[124] The factual background in the Yew case was that Mr Yew claimed that a number of fellow workers habitually made derogatory remarks about Asians and addressed him by racist nicknames such as 'Mr Yellow". Witnesses agreed that teasing and taunting Mr Yew about being Asian occurred regularly. Fellow workers were commonly teasing him by interfering with his work. On the day before the fight someone hid Mr Yew's clothes. The fight that resulted in termination was precipitated by another worker inappropriately physically disrupting the work Mr Yew was doing.

[125] The decision that the termination was not sound however was not because of the provocation argument.

[126] The facts concerning provocation in the Yew case are quite different from what occurred in this matter. Mr Budd made the statement to Mr Czubek that the site was very racist but when asked was not able to give any details of specific examples. [44] In particular he had an opportunity to but did not give any examples of prior discrimination or racism he had experienced. It is notable that the respondents site in Port Hedland employs 16 indigenous employees out of a workforce of 73 and on this background the evidence from Ms Lee was that this site was one of the first where the respondent mandated training for employees to reinforce company policies in relation to harassment and discrimination.

[127] In this case there is no evidence of a history of discrimination or racism in this workplace as a background to the comment Mr Yitting made that would entitle Mr Budd to view the comment as so provocative as to justify his reaction. Mr Budd acknowledges the comment by Mr Yitting was not directed at him personally. The comment was made in response to television news footage of the unruly behaviour of a group of Aboriginal people that all three employees in the crib room, including Mr Budd had watched. It was an isolated one off event. Specifically there was no suggestion that Mr Yitting had said anything racist or behaved in any racist way towards Mr Budd prior to this comment.

[128] Other cases that I have been referred to concerning provocation deal with matters which involved a much greater level of provocation and/or other extenuating circumstances than occurred in this instance. [45]

[129] It is submitted by the respondent that if the Commission were to accept that Mr Budd was provoked into reacting in the manner in which he did the Commission should find that based on the evidence, the reaction of the applicant was disproportionate to the alleged provocation.

[130] I accept the principle that both the parties have acknowledge applies to provocation and that is that any reaction to provocation is only reasonable if it is in proportion to the provocation.

[131] Here the provocation the applicant seeks to rely on was a single verbal comment which was not directed at the applicant. However the reaction was an aggressive physical assault. In my view that reaction was out of proportion with the trigger. The comment made by Mr Yitting explains the behaviour of Mr Budd but does not excuse that behaviour at all.

[132] As Moore J observed in AWU-FIME Amalgamated Union v Qld Alumina Ltd one reason employers may have a no fighting policy:

"…is to ensure that employees' exercise a measure of discipline….where trust and co-operation are lost entirely." [46]

[133] In this case Mr Budd did not exercise any self discipline. He allowed his emotions to overcome his restraint. He overreacted to the comment of Mr Yitting to a degree that is simply unacceptable in the workplace. As was conceded by the applicant if the incident occurred as the respondent here says it did, which is my finding, then Mr Yitting could have gone to the police and made a complaint of assault against Mr Budd. [47]

[134] Even accepting the words used by Mr Yitting where as Mr Budd says I do not accept that on an objective assessment of what was said, in the context in which the comment was made, it was reasonable for Mr Budd to react to the extent that he did.

[135] The applicant raised concerns over the interview and investigation process and some other issues for consideration.

[136] Mr Czubek the day following the incident interviewed Mr Budd twice and separately Mr Yitting, also twice. Mr Budd had a witness of his choice in attendance at his first interview, a Mr Todd who is an indigenous Australian but declined the offer for a witness to attend the second interview. Mr Czubek also had a brief conversation with Mr Melehan and had a phone conversation with Mr Lord about the incident.

[137] Mr Budd at the second interview was asked for any explanation for his behaviour that should be considered by the company and issues of his hernia discomfort and having the flu where discussed and taken into consideration as was confirmation that he was aware of his employment obligations generally and specifically of the companies "The Way We Work" policy that emphasises the companies commitment to the safety of its employees.

[138] He then discussed with his Manager and Ms Lee the issues and finally had a meeting late that day to advise Mr Budd of the company's intention to terminate his employment because of the incident. Mr Budd was given an opportunity to raise any other issues, was advised he was being terminated because of his behaviour for misconduct and given his termination letter.

[139] After the intense scrutiny cases such as this involve and with the benefit of hindsight it is not unusual that inquiries such as this, into incidents in the workplace, look as though they could have been done better. There is nothing however in this instance that demonstrates that the process followed by the respondent was in any way fatally flawed.

[140] Other matters that may be relevant and should be considered under s.652(3)(g) of the Act are Mr Budd's health and his length of service. The fact of Mr Budd having had the flu and a hernia when the incident occurred were mentioned in the interviews with Mr Czubek I am satisfied that they do not explain or excuse his behaviour. A final matter the Commission should consider is whether his length of service is relevant in determining this matter. Having been employed for only three years I find that this issue is not relevant.

[141] In all of the circumstances I find that the termination of Mr Budd by the respondent was not harsh, unjust or unreasonable. Consequently this application is dismissed.

[142] An order reflecting this decision will now be issued.

Printed by authority of the Commonwealth Government Printer

[1] Walton v Mermaid (1996) 142 ALR 681 at 685 per Justice Moore

[2] See William Sutton v Bisalloy Steels Pty Ltd 35 (1996) 142 ALR 681 at 685

[36] Yew v ACI Glass Packaging Pty Ltd (1969) 71 IR 201, William Sutton v Bisalloy Steels Pty Ltd 41 (1969) 71 IR 201

[45] refer to Rail Corp v Abdul El Hawat and Cornwall v Qantas