The respondent contends that Mr. Viney was terminated because he used foul language to Ms Davies, his supervisor, which was accompanied by threatening gestures.

Mr. Viney had had approximately eight years experience as a truck driver before he commenced employment with M & V Brown Pty Ltd on 17 June 1996 initially as a casual truck driver. After two weeks employment he was made permanent. On or about 28 April 1997 he was provided with the company's driver's handbook (exhibit V1). On 22 August 1996, Mr. Viney sustained a grade 3 compound fracture to the lower left leg when he was run over by a fork lift whilst making a delivery in Sydney. Subsequently he was off work for a period of six months as a result of that injury, returning to work on light duties initially in January 1997. Some five weeks later he resumed normal duties save that he was subject to a restriction that he not jump down from trucks.

On or about 4 August 1997 there were discussions between Mr. Viney and the Company concerning his performance, which related to:

(i) his perceived annoyance at being required to load 200 30 kilo bags of stock feed in Adelaide when other drivers who were totally fit were available to do that work;

(ii) his annoyance that an agreement with the operations manager, Bruce, to have goods removed from the truck at the depot over the following weekend was not kept and as a consequence he lost time by having to return to the depot at Seaford on the Monday after delivering other goods which were part of the same load at Bayswater rather than be in a position to go to Broadmeadows to pick up a load and proceed to Sydney.

On his return to Seaford, from Bayswater there was an exchange with the operations manager, Bruce and with Ms Davies, the Administration Manager, who advised Mr. Viney that if he couldn't do the work (he had complained about soreness in his leg)

" . . . they would find someone else to do so." [transcript pg. 10]

On 8 August Mr. Viney was handed a letter by Ms Davies which referred to aspects of his performance which had allegedly been raised during the discussions on 4 August. Those matters involved customer complaints about Mr. Viney's rude and abusive behaviour towards customers.

Mr. Viney disputed the contents of the letter with Ms Davies. His evidence was that, on 4 August only two matters were discussed:

(i) his injured leg and the work allocated to him; and

(ii) that complaints regarding his performance were first raised with him on 8 August and that only one matter was raised involving work for a sister company Brown's Slipways, because of the unavailability of another driver, which was in turn doing the work for another transport company, Hick's.

In relation to (i) he agreed that he was under a misapprehension at the time of this meeting regarding the medically imposed restrictions on his working arrangements in that the only restriction was on jumping from trucks rather than on lifting items of more than five kilograms in weight. He accepted the true situation at that meeting.

As regards (ii) he claims that at the 4 August meeting he was not given any particulars regarding the complaints of any customer, nor were any criticisms cited.

It is not disputed that the accident as outlined above occurred. It is also agreed that immediately following the accident Mr. Viney, after a telephone conversation with Mr. Peter Thurlow, the then Transport Manager in Melbourne, arranged for the vehicle to be temporarily repaired at a cost of $55.00 which he paid for himself and for which he is yet to be reimbursed. The evidence regarding that conversation differs but as it is not of any great moment to the termination I do not need to decide the facts of it.

The evidence of Mr. Viney can be summarised as follows:

1. Mr. Viney returned on instructions to the depot on 24 September. Whilst refueling the truck he was advised by Mr. Thurlow:

(a) to take all his belongings from the truck because he, Mr. Viney, had a serious accident;

(b) that the accident would be investigated and he would be terminated. Mr. Viney responded saying

" . . . You can't do that. You can't sack me for someone (sic) that's not my fault." [transcript pg. 22]

(c) subsequently Mr. Thurlow had told Mr. Viney he was suspended;

(d) he went home on Mr. Thurlow's instruction to return at noon the following day to discuss the situation (the respondent's call this the noon meeting);

(e) at 12.45 p.m. on 25 September there was a meeting between Mr. Viney, Mr. Thurlow and Ms Davies. At that meeting

* the Caringbah accident was discussed, the nature of the road (its camber, whether there had been road works etc); the state of the taut-liner:

* Mr. Viney was frustrated during the meeting because the Company representatives didn't seem interested in Mr. Viney's explanations/reasons for the accident;

* at the conclusion of the meeting the Company representatives indicated that they could not give Mr. Viney an answer then and asked him to return at 3.00 p.m.;

* Mr. Viney denied that he was aggressive, threatening and abusive at that meeting. He admitted that he raised his voice during that interview.

(f) Mr. Viney gave evidence that during the period from noon when he arrived at the depot until the meeting commenced at 12.45 p.m. he observed Ms Davies conducting an interview with a prospective employee (driver) based on his overhearing a comment by Ms Davies viz.

" . . . She said she couldn't hire this particular person on a West Australian licence." [transcript pg. 27]

(g) stated that he returned to the depot at 3.00 p.m. the same day and that in a meeting which lasted five minutes:

" . . . I was handed a piece of paper, and my pay packet, and I was told that after their thorough investigations, that I was found to be negligent in hitting the bridge, and therefore to be terminated on the spot, because they would not tolerate this sort of behaviour, or this sort of action.

Was anything else said to you in that second meeting about your conduct, other than driving of the vehicle? --- No.

So, you were told you were going to be sacked, and what was the sole reason in your mind, for your being sacked? --- Hitting the bridge." [transcript pg. 28]

(h) his evidence was that during that meeting he was told by both Mr. Thurlow and Ms Davies that:

(a) he was terminated because of the bridge accident;

(b) that he had not read the letter at the time it was handed to him;

(d) he was very very angry as was stated in his evidence:

" At that stage, what were you feeling like? --- Pretty angry, very angry actually.

Very angry, What did you do? --- I then asked Lynne Davies if that was it, I no longer worked here, and she said `yes that's right'. And then I abused her." [transcript pg. 30]

(e) he abused Ms Davies for a couple of seconds calling her a fucking bitch but that he did not threaten her - this abuse occurred in the absence of Mr. Thurlow;

(f) that Mr. Thurlow returned to the room and asked Mr. Viney to leave the premise which he did;

(i) Mr. Viney sat in his car and read the letter which inter alia indicated that there would be a further investigation whilst he was suspended from duties, he would be given an opportunity to respond to the Company's findings at a meeting to be held at 3.00 p.m. that day and that the Company in light of its investigations would consider:

(j) having read the letter, Mr. Viney concluded he had been set up because he had been terminated even though the letter said he was suspended. He returned to the office and demanded another meeting in the presence of an independent witness. He arranged for a Mr. B. Stockwell, a driver from Browns Shipway to attend as his witness. His evidence about that meeting was:

" What happened there? --- When Brian Stockwell was in the room I had asked Peter Thurlow if I had been terminated because I hit the bridge, and he said yes. And then he also added, because of the abuse I just dished out to Lynne Davies.

What else happened in that meeting? --- After that, once I heard what he had told me I said, `All right.' I said, `That's it. This isn't the last you'll be hearing of it.' And that was when I walked out and went home." [transcript pg. 34]

Mr. Viney also gave evidence that about week before the proprietor, Mr. Brown, went on holidays to Queensland, he, Mr. Viney overheard a conversation between Mr. Brown, Mr. Thurlow and Bruce in which Mr. Brown said:

" I want him gone before I get back and I don't care of the consequences." [transcript pg. 37]

Under cross-examination Mr. Viney denied that at the 12 o'clock meeting on 24 September he:

(i) had been terminated by both Ms Davies and Mr. Thurlow;

(iv) had been escorted from the premises by Ms Davies;

(vi) had during Mr. Thurlow's absence from the meeting to obtain documentation regarding Mr. Viney's previous performance and warning's said to Ms Davies:

" You've had it in for me for a fucking long time, you black bitch."

But it was his evidence that (i) and (v) had occurred at the 3.00 p.m. meeting and that (ii) - (iv) had occurred after he was terminated.

Mr. Harris for the Company put to Mr. Viney regarding a proposed witness, Mr. Stockwell:

" And I suggest to you he will not say when he gives evidence that you were dismissed for hitting the bridge? --- Yes, well, so I found out. Yes." [transcript pg. 46]

Mr. Viney denied that in the meeting (after 3.00 p.m. on 24 September 1997) at which Mr. Stockwell was present that:

(ii) Mr. Stockwell said to Mr. Viney that Mr. Viney was an idiot or said he was in the wrong;

(v) Mr. Viney asked Mr. Thurlow to have a go and Mr. Thurlow told Mr. Viney he was being silly and it was inappropriate behaviour;

(vi) Mr. Viney obtained Mr. Thurlow's mobile number from Mr. Thurlow and told Mr. Thurlow he would be ringing Mr. Thurlow up.

* in relation to a delivery at Insulco Minto, he had offered a slab of beer to that Company's employees to load the truck for him;

* he had been advised at the performance meeting on 4 August that Insulco had advised Browns that they did not want Mr. Viney to go to the Minto plant and he had be advised of that fact on 4 August;

* he had refused to unload stockfeed at Bayswater and left the unloading to be done by an elderly man; or

* again at the 4 August meeting he was advised that the Bayswater company did not want him to do deliveries to that site.

The evidence of Ms Davies can be summarised as follows:

That on occasion she had to talk to Mr. Viney about his performance, that he was from time to time short tempered and she put that down to his tiredness. She had also spoken to him about his performance on 4 August cited Insulco at Minto who had advised the Company that they did not want him to do jobs at Minto because he wouldn't load the truck. A complaint in relation to Eastern Distributors Bayswater had also been discussed as had the nature of the restrictions on Mr. Viney's work capacity. That following that discussion Ms Davies had prepared a letter dated 6 August setting out the conversation of 4 August which she insisted she had handed to Mr. Viney on 6 August and he had been advised in response to his question that the letter constituted a warning. She admitted that the follow-up meeting scheduled for 20 August had not taken place.

Her next contact involving Mr. Viney was after the Caringbah accident where that matter was raised with her by Mr. Thurlow. Following inquiries made by her she advised Mr. Thurlow to suspend Mr. Viney whilst an investigation was carried out into the accident. She stated that Mr. Thurlow had advised her that he made inquiries of the Council regarding the bridge accident before Mr. Viney returned to Melbourne. On Mr. Viney's return to Melbourne she saw him taking out a speaker from the cabin of the vehicle and asked Mr. Thurlow why Mr. Viney was doing it. In a conversation with Mr. Thurlow she understood that Mr. Thurlow had suspended Mr. Viney but Mr. Viney was under the apprehension that he had been sacked. She told Mr. Thurlow to advise Mr. Viney that he was suspended until midday of the next day. She was not party to the exchanges between Mr. Viney and Mr. Thurlow on that day.

Ms Davies evidence of the noon meeting on 24 September was that the accident and reason for the accident were raised at the outset by Peter Thurlow. She then raised with Mr. Viney the issue of his performance and that this would be his final warning. Mr. Viney immediately lost his temper. He, Mr. Viney commenced swearing and she asked him to stop it as they wanted to have a civil conversation. The 6 August letter was raised which she contended Mr. Viney denied having received. Mr. Thurlow then left the meeting and Mr. Viney then commenced to swear at her again in the following terms:

" I want you think as carefully as you can as to the actual words used. Nobody is going to be troubled by you telling us what actually occurred except perhaps you, but, that is another story? --- He turned around and he says, you are just a fucking bitch, you don't fucking know what you're talking about and I turned around and I said, Steve I'm sorry I've asked you not to use that sort of language and he says, go and get fucked, you need your head smacked in anyway and Peter - and I says to him, look, I'm sorry I said I have to terminate you. I said I have been kind enough I said I can't take any more. I said, you've abused me, sorry. And as he was swearing at me Peter plus some other people down in the other offices heard it and Peter came running up to the office and turned around and he said, I'm sorry he said you're terminated because you have just abused her. And he said, she can go and get fucked anyway." [transcript pgs 88 - 89]

(i) Mr. Viney had been handed the suspension letter prepared on 25 September during the noon meeting;

(ii) Mr. Viney had during Mr. Thurlow's absence fidgeted and had got up from his chair and hung over the desk;

(iii) it had been decided prior to the meeting that Mr. Viney would receive a final warning;

(iv) Mr. Viney was terminated because he became abusive;

(v) Mr. Thurlow had escorted Mr. Viney from the premises and that Mr. Viney was asked to return at 3.00 p.m. to receive his pay.

In relation to the 3.00 p.m. meeting it was Ms Davies' evidence that:

(i) Mr. Thurlow, Mr. Viney and Ms Davies were present;

(iii) Ms Davies had his pay slips and everything and handed them to him and that was the end of the meeting.

Subsequently Mr. Viney requested a further meeting with a witness involved to which she agreed. That meeting involving Mr. Thurlow, Mr. Viney and Bruce Stockwell then took place. She could not hear the discussion save when Mr. Stockwell walked out of the meeting saying You're an idiot mate which she believed was directed at Mr. Viney.

(i) acknowledged that she had not provided Mr. Viney with the 6 August disciplinary letter until 8 August. She stated that she had raised verbally with Mr. Viney the complaint from Insulco Minto in late June;

(ii) acknowledged that following the meeting of 4 August there had not been a further meeting until the 25 September and that the performance issues raised on 8 August had been resolved as an outcome of the August meeting;

(iii) acknowledged that the letter of 25 September was incorrect in stating that Mr. Viney had received a final warning in August;

(iv) acknowledged that the investigation into the accident did not involve anyone going to the accident site, that there was no checking of the vehicle to see if it had been involved in any previous accidents, and no checking of the tyre pressures etc;

(v) denied that the Company had decided to sack Mr. Viney before the conduct of an inquiry;

(vi) acknowledged that her prepared written statement accorded with the applicant's evidence in relation to a number of matters and that her oral evidence in chief was not consistent with her written statement and that the written statement was the correct version;

(vii) denied that Mr. Viney has sworn at here only after she had sacked him;

(viii) she had sacked him at the 3.00 p.m. meeting;

(ix) Mr. Viney had sworn at her during the 12.30 p.m. meeting and had been escorted from the premises because of the fact that he had sworn and the frame of mind he was in but he had not been sacked;

(x) she had given an oral final warning on 6 August but not a written final warning;

(xi) she handed Mr. Viney the suspension letter at the 3.00 p.m. meeting together with his pay and pay slips;

(xii) she did not give him a letter of termination;

(xiii) Mr. Viney had never abused her until 25 August;

(xiv) Mr. Viney was sacked because of his abusive language and because she felt threatened - these events occurred at the 12.30 p.m. meeting;

(xv) her written statement was incorrect in that it stated that Mr. Brown was in attendance at the 4 August meeting, when he was not.

In answer to a question from the Commission, Ms Davies said that she handed him the suspension letter at the 12.30 p.m. meeting.

The evidence of Mr. Brown, a proprietor of the Company dealt with conversations that he had with Ms Davies on 24 and 25 August concerning the accident and the subsequent termination of Mr. Viney. He expressed the view that the nature of the Caringbah accident was not a sackable offence, that he understood that Mr. Viney had been terminated because of his abusive language and threats and that he had agreed with the decision.

Mr. Peter Thurlow, former Operations Manager M & V Brown Pty Ltd, gave evidence that might be summarised as follows:

* On 24 April he suspended Mr. Viney whilst an investigation was carried out into the Caringbah accident. Initially Mr. Viney thought he was being terminated but that misapprehension was clarified before Mr. Viney left the site to return the next day.

* On 25 April there was a meeting at around 12.15 p.m. between Ms Davies, Mr. Viney and Mr. Thurlow at which the Caringbah accident and Mr. Viney's performance including warnings was discussed. The meeting had been stopped and after a period recommenced to allow Mr. Viney to cool down. Mr. Viney was advised to come back at 3.00 p.m. when the outcome of the Company's considerations would be conveyed to him.

* On 25 April following their meeting with Mr. Viney, Ms Davies and Mr. Thurlow discussed the matter and decided that Mr. Viney would receive a formal warning regarding the accident.

* On 25 April at approximately 3.00 p.m. there was a meeting between Ms Davies, Mr. Thurlow and Mr. Viney. At that meeting the issue of Mr. Viney's performance was raised by Mr. Viney. Mr. Thurlow left the meeting to get Mr. Viney's personnel file in order to check what records relating to Mr. Viney's performance, warnings etc were on file, as Mr. Viney claimed he had not received any written warnings.

* As he walked away to get the file he heard Mr. Viney abusing Ms Davies in unacceptable language. He, Mr. Thurlow returned to the office as Mr. Viney continued to abuse Ms Davies and Mr. Viney had adopted a threatening stance towards Ms Davies, leaning over the desk and Mr. Thurlow sacked Mr. Viney on the spot for his abusive language and threatening behaviour.

* Subsequently Mr. Viney challenged Mr. Thurlow to go outside but Mr. Thurlow gave Mr. Viney his mobile phone number and said Mr. Viney could talk over his problems that night or the next day.

* Mr. Viney then drove from the premises but returned some ten minutes later when he requested a further meeting with an independent witness because he believed he had been ambushed at the 3.00 p.m. meeting.

* A meeting took place between Mr. Thurlow, Mr. Viney and Mr. Stockwell at which the events, the accident etc were discussed. Mr. Thurlow in cross examination indicated that he would not allow Ms Davies to be involved in this follow up meeting and Ms Davies was elsewhere in the offices doing paper work which he assumed was making up Mr. Viney's pay. After that meeting Mr. Viney left the site.

Evidence was also given by Mr. Bruce Corrigan, Transport Manager of M & V Brown Pty Ltd concerning performance issues relating to Mr. Viney. It was not of major relevance to the issues in dispute.

Mr. Darryl Harris, a former driver gave evidence in relation to an alleged conversation in which he participated which the proprietor, Mr. Brown, who allegedly gave instructions that Mr. Viney was to be terminated, whilst Mr. Brown was on leave, because the Company could not afford to continue to employ Mr. Viney because of his Workcover claims and entitlements. Mr. Harris's demeanor and the way in which he gave evidence regarding a statement he had made leads me to conclude that Mr. Harris's recollection about the alleged conversation was inaccurate and his evidence was not objective.

Mr. McDermott for the applicant submitted that on the facts in the case Mr. Viney had been terminated at the 3.00 p.m. meeting on the 25 April because of his errant driving behaviour, i.e. the driving accident at Caringbah. He contended that the abuse which the applicant had directed at Ms Davies had occurred once Mr. Viney had established that his employment had been terminated. He also pointed to the significant disparity in the evidence of Ms Davies between her written statement and her initial oral evidence which was later subject to correction under cross examination. He then addressed the issues of examination at the initiative of the employer and the concept of harsh, unjust and unreasonable termination. In that regard he relied upon Mahasad v Dick Smith Electronics [(1995) 62 IR 200 at pg. 206], Bostik v Gordivski [(1992) [1992] FCA 209; 36 FCR 20] and Gregory v Phillip Morris Limited [(1988) 80 ALR 455 at pg. 457]. He then addressed the question of whether there was a valid reason relying on Salvachandran v Peterson Plastics Proprietary Limited [(1995) 62 IR 373]. In relation to the issue of serious misconduct, Mr. McDermott contended that if the contentions of the respondents were accepted as regards the reason for termination that Mr. Viney's behaviour was not willful. In that regard he drew attention to Regulation 30CA which set out a definition of serious misconduct. In Mr. McDermott's contention the action of Mr. Viney did not fall within the scope of that definition because Mr. Viney in fact did not act willfully. He went on to contend that the respondent had not demonstrated that there had been a valid reason for the termination.

This contention was based on the fact that there was significant internal discrepancies in the evidence of Ms Davies and moreover there were significant differences as between the evidence of Ms Davies and that of Mr. Thurlow.

In light of those discrepancies the evidence of the applicant should be preferred.

He went on to submit that in light of the requirement under the Workplace Relations Act 1996 for the Commission to address termination manners in the spirit of a fair go all round then given that the respondent was not clear in terms of the basis on which they had terminated Mr. Viney's services, the Commission should come to the conclusion that the reason for the termination was unclear.

In relation to the use of abusive language again he pointed to the discrepancy in the evidence of the respondent pointing particularly to Ms Davies evidence that all of the abuse had taken place at the first meeting whereas Mr. Thurlow had contended that the abuse, indecent language and threatening behaviour had occurred in the second meeting and it was on that basis that the applicant had been terminated. In relation to the use of abusive language Mr. McDermott contended that the Commission should take judicial notice of what occurs within the trucking industry and that such language was quite normal within that industry compared with other industries and given that the trucking industry was more worldly and robust then such language could normally be expected within it. This view was drawn in part from the acknowledgement by witnesses for the respondent that robust language was used within the industry .

Mr. McDermott also made submissions seeking costs in relations to the failure of the respondent to attend the arbitration hearing on the previous Monday. In that regard he relied upon s.170CS as the basis of that application. I concur with the views later expressed by Mr. Harris on behalf of the respondent that that section does not apply to this Commission.

Mr. Harris contended that Mr. Viney was terminated twice for misconduct which consisted of improper language and also threatening Ms Davies. In relation to whether the behaviour constituted sufficient grounds to warrant termination Mr. Harris drew on a passage in Mack and McCurry and Sapodines Law of Employment [fourth edition at page 208] which set out in some detail the grounds on which insulting and objectionable behaviour may constitute misconduct. He rejected the contention of Mr. McDermott that Regulation 30CA of the Workplace Relations Regulations defined exclusively what constituted misconduct. He contended that an examination of that Regulation would indicate that it is an inclusive definition in that whilst it provides examples of what could be seen as misconduct it was not an exhaustive definition. A more important issue in his submissions was the fact that Regulation 30CA was relevant in relation to s.170CM of the Act which is concerned with the giving of notice. In the current circumstances the question at issue was the termination of Mr. Viney not a question of notice, that is the Commission had to determine whether the misconduct was of such a nature that it warranted termination and the claim being pursued by Mr. Viney was that his termination was harsh, unjust or unreasonable.

In relation to the evidence of Ms Davies, Mr. Harris acknowledged that there were inconsistencies in her evidence and also as between the evidence of Mr. Thurlow and Ms Davies. He contended that the most robust language occurred during the 3.00 p.m. interview and that the Commission should find that it was whilst Mr. Thurlow went to obtain the documentation relating to earlier discussions and warnings of Mr. Viney that the incident occurred and that it was Mr. Thurlow who terminated the employment of Mr. Viney in light of that language in ignorance of Ms Davies already having acted to terminate Mr. Viney. Mr. Harris then made references in transcript in support of his contentions. I do not propose to set them out again.

He contended that it was the evidence of Mr. Viney himself that he had used some of the inappropriate language prior to termination. Mr. Harris dwelt on the evidence of Mr. Thurlow pointing out that it was not vindictive but rather reasonable both in attitude and approach. The employer had in Mr. Harris's contentions been quite reasonable in its approach to Mr. Viney as it had acted to assist Mr. Viney when it became clear that because of difficulties he was facing as a result of his injuries it took steps both in terms of light duties but also in relation to the nature of the work which it gave him over a number of months to assist Mr. Viney to do more amenable work even though Mr. Viney had a clearance from the Workcover Authority which would have allowed him to undertake the more arduous work.

Mr. Harris relied on Cosco Holdings v Thu Thi Vin Do [QG 95-100/97] as an authority in relation to the employer having a valid reason to terminate Mr. Viney. Mr. Harris contended that the requirements s.170CG were met in that the employer had a valid reason to terminate Mr. Viney and because it was instantaneous dismissal then there was no need for a period of notice. Moreover Mr. Viney's conduct was of such a nature that it warranted instant dismissal. Mr. Viney had in the earlier part of the meeting demonstrated inappropriate behaviour by the use of swearing and had been asked to stop it. It was quite clear that he was fully appreciative of the fact that swearing was not acceptable, particularly swearing to his manager and yet he persisted and moreover threatened his supervisor.

Mr. McDermott contended that Mr. Viney had been terminated at the noon meeting, that there was evidence by Mr. Thurlow that after the noon meeting there were discussions between Ms Davies and he regarding disposition. He contended that such evidence was inconsistent because if Mr. Viney was terminated then there was no need to determine disposition. Mr. McDermott contended that given the contradiction in the evidence for the respondent then:

" . . . the evidence of the respondent cannot be accepted and, therefore, that the version of events as put forward by the applicant is a preferable view for the Commission." [transcript pg. 209]

In relation to the nature of the behaviour of Mr. Viney he contended that the reliance by the respondent on the opinions expressed in Macken and McCarry and Sappideen's - The Law of Employment was misplaced in that there had not been shown a continuous ongoing conduct by Mr. Viney which was such as to give rise to the act of misconduct justifying termination. Moreover, that action took place at a point in time after Mr. Viney had been terminated and it resulted from the fact that Mr. Viney had snapped because he had been terminated. The applicant did not accept that the respondent's version was an accurate statement of the events but rather the action of abuse had taken place after termination had been effective.

I find that on 24 August Mr. Viney on return to the depot was suspended by Mr. Thurlow because of the accident which had occurred at Caringbah earlier in the week and that Mr. Viney was advised that the suspension was in accordance with Company policy and that a investigation would take place.

I find that on 25 August there was a meeting sometime between noon and 12.45 p.m. involving Mr. Viney, Mr. Thurlow and Ms Davies at which there were discussions in relation to the nature of the accident and how it had occurred, there were also discussions in relation to Mr. Viney's previous performance. As part of that latter matter the issue of complaints by a number of customers of the Company were raised. I find that in earlier discussions on the 4 August some of those matters had been raised with Mr. Viney but given the concerns I have about Ms Davies' contradictory evidence that the evidence of Mr. Viney in relation to those earlier discussions is preferred.

I find that at the conclusion of the noon meeting on 25 April, Mr. Viney was asked to return to the depot at 3.00 p.m. in the afternoon. I find that at the conclusion of the noon meeting Mr. Viney was advised that the Company was considering what action the Company would take in relation to that accident. I also find that following the noon meeting Ms Davies prepared a letter which set out the options the Company was considering in relation to Mr. Viney vis a vis the Caringbah accident. In a real sense it was a letter for the record because it indicated that a meeting was to be held at 3.00 p.m. to convey the Company's decision yet the letter was not handed to Mr. Viney until some time after the 3.00 p.m. meeting had commenced. I find that subsequent to that meeting there were discussions between Mr. Thurlow and Ms Davies at which it was agreed that Mr. Viney would receive a written warning in relation to the accident. I find that at the 3.00 p.m. meeting that there were further discussions in relation to the accident and that Mr. Viney raised concerns in relation to the warnings concerning his performance which had been the subject of discussion at the noon meeting which had not been raised at the 4 August meeting. He had not agreed with the contents of the 6 August letter which he believed went further than what had actually occurred in his oral discussions with Ms Davies on 4 August.

I find that Mr. Viney towards the end of the 3.00 p.m. meeting lost his temper and verbally abused Ms Davies in quite robust language and that by his physical demeanor did overbear Ms Davies.

I find that during that verbal exchange, Mr. Viney, adopted a threatening demeanor towards Ms Davies and did use threatening language towards her. I am not convinced the evidence is such as to warrant the conclusion that he adopted a physically threatening position.

I find that some ten minutes after the 3.00 p.m. meeting there was a further meeting between Mr. Viney and Mr. Thurlow in the presence of Mr. Stockwell. I find that at that meeting there were discussions about the reasons for Mr. Viney's termination. In relation to Mr. Stockwell's possible evidence I do not accept the contention that the fact that he was not called as a witness by the employer necessarily means that I should come to the conclusion that he was not called because that would not have assisted the employer. A similar situation applies to the applicant. All in all Mr. Stockwell's evidence may have assisted either party in that both Mr. Viney and Mr. Thurlow gave evidence about the nature of that meeting and given the significant differences in those versions Mr. Stockwell's evidence might in relation to some aspects have assisted the applicant, Mr. Viney.

In considering this matter the respondent relied on the following passage from in Macken and McCurry and Sapodines Law of Employment

" Insulting or objectionable language. The use of insulting and objectionable language may constitute misconduct. The standard is not that of the dainty and genteel but the standard applying in the `give and take atmosphere' of the modern workplace. If abusive language is common at the workplace its use by an employee would not normally be regarded as sufficiently serious to warrant dismissal unless it is directed to challenging the authority of a supervisor. This is on the basis that abuse may justify dismissal where it interferes with the proper performance of the employment. Insult is very often coupled with disobedience and insolence and rarely is there a single act but usually a course of conduct culminating in a final showdown. Illustrative is the case of Pepper v Webb where the plaintiff was employed as gardener. Over a period of three months, his work deteriorated and he became inefficient. On the day of dismissal he was directed to put in some plants, which he refused to do retorting `I couldn't care less about your bloody greenhouse and sodding garden.' Although viewed singly his conduct would not have justified dismissal, the course of misconduct was held to be sufficient serious to justify immediate dismissal." [page 208]

I have also had regard to the decisions of Watson DP (as he then was) in The Clothing and Allied Trade Union of Australia and Taurus Fashions Australia Pty Ltd [Print J9757]; Merriman C in the Australian Timber Union and D & G Claridge [Print J1233] and Lewin C in S. Asker and Woolworths (SA) Pty Ltd [Print P2196] which all dealt with instances where a summary termination had occurred in circumstances where swearing had been involved.

In the circumstances of the current matter I am not convinced that the use of robust language was foreign to the Company's operators. Certainly it was conceded by the respondent that swearing and foul language was common amongst its drivers and does occur frequently in the yard of the depot. It was contended that it did not occur and was not allowed in the office area. I am not convinced that that is so.

The evidence does reveal that robust language was used by Mr. Viney during the noon meeting and whilst that meeting was the subject of a brief adjournment to allow Mr. Viney to cool down there is no evidence that he was warned about his use of robust language although I accept that he was asked to refrain from its use.

As regards the 3.00 p.m. meeting the issue of primary concern is whether Mr. Viney was terminated because of the Caringbah accident and then lost it. On the evidence before me I find that Mr. Viney was not terminated because of his driving performance, complaints about his past performance and probably for unspecified reasons. It is clear from the evidence of Mr. Thurlow supported by Ms Davies and the evidence of Mr. Brown that the company had decided to issue a final written warning regarding that incident. However the fact of the matter is that as a result of the way in which events unfolded Mr. Viney was terminated instead of being given a final written warning.

It is clear that Mr. Viney was agitated at the 3.00 p.m. meeting not only because of the Caringbah incident but also by the fact that Ms Davies at the noon meeting had raised issues relating to customer complaints, matters which Mr. Viney believed had been resolved on 8 August or new matters which related to events in June but which had not been articulated at the 4 August meeting. Mr. Viney was seized by the raising of these issues and refused to let the matter die but instead re-raised the matter at the 3.00 p.m. meeting thereby deflecting the meeting from dealing to conclusion with the company's decision re the Caringbah accident. It would seem highly likely that Mr. Viney had concluded that a decision about his future was not to be made solely on the basis of the Caringbah incident but that the customer complaints issue supposedly resolved on 8 August but re-raised at the noon meeting was also to be weighed in the balance. Hence his desire to have that issue resolved particularly given his adamant contention that he had not been advised of some of the alleged complaints or warned in relation to them. It seems highly probable that Mr. Viney had come to the view that Ms Davies was instrumental in widening the scope of the issues to be considered beyond the Caringbah accident and as a consequence he was highly anxious about his future which he saw as very much in the balance and thus he was very angry towards her.

I have come to the view that whilst Mr. Thurlow left the meeting to get the personnel file relating to Mr. Viney to establish what performance related documents it contained, Mr. Viney lost it and abused Ms Davies.

I am fortified in that view by my consideration of the evidence relating to pay slips. The evidence of Mr. Thurlow was that after the 3pm meeting he believed that Ms Davies was making up Mr. Viney's pay. A close examination of the evidence shows that following the 3pm meeting there was a further meeting between Ms Davies and Mr. Viney in the kitchen when Mr. Viney returned to ask for a further meeting and that is when and where Ms Davies handed Mr. Viney his pay slips and termination pay. Mr. Viney claims that he left the 3pm meeting after having been given a piece of paper and his pay packet. I prefer Mr. Thurlow's evidence generally given his demeanor and the concern he showed to be as objective as possible. Whilst there are concerns with Ms Davies evidence on a number of other matters I am satisfied on this aspect of events she is truthful. Given Mr. Viney's anger at being dismissed, I am led to conclude that on this aspect of events he has misplaced the timing of the receipt of his pay slips/pay packet.

In all probability if Mr. Viney had been informed at the outset of the 3.00 p.m. meeting that he was to be given a final written warning the matter would have been resolved then and there.

Of particular concern in the verbal abuse was the racial nature of it which does in my view add significantly to its gravity. Such abuse cannot be tolerated.

There is also the fact that Ms Davies was Mr. Viney's supervisor and abuse of a supervisor is just not acceptable.

There is of course the fact that the incident on 25 September is the first occasion upon which Mr. Viney engaged in such behaviour involving office staff. There was no evidence to suggest that on any previous occasion including his counselling regarding the client complains that Mr. Viney had any history of swearing in the presence of or at supervisors or office employees. Moreover, Mr. Viney had received a written warning dated 6 August 1997 regarding customer complaints about his dealings with them and the company did not conduct the follow up meeting it had proposed for 20 August 1997. On the respondents evidence there were no grounds for concern in relation to Mr. Viney's behaviour from July 1997 up until the time of termination.

Whilst there can be no doubt regarding the nature of the verbal abuse directed at Ms Davies and its intensity being audible throughout the offices, the evidence regarding the physical threat is far from clear and on balance I am not satisfied that Ms Davies, whilst confronted with an angry shouting male, was actually physically threatened, she was verbally threatened.

In all of the circumstances I am drawn to conclude that Mr. Viney's actions were such as to warrant termination with notice but not sufficient such as to warrant summary dismissal. As a consequence some form of compensation is warranted. In considering the amount of compensation I have taken into account the relatively brief period of Mr. Viney's employment, the fact that the respondent's actions contributed to Mr. Viney's anxiety and probably exacerbated the situation but at the same time Mr. Viney's abuse was totally inappropriate. I have as a consequence decided to award Mr. Viney compensation of two weeks pay that amount being subject to normal taxation deductions. The payment is to be made within 10 working days of this decision.

Termination of employment - unfair dismissal - applicant contended termination due to errant driving in attempting to drive under railway bridge resulting in damage to trailer attached to prime mover - respondent contended termination due to foul language accompanied by threating gestures of applicant to supervisor - Commission found termination not due to driving performance - Commission referred to The Clothing and Allied Trade Union of Australia and Taurus Fashions Australia Pty Ltd [Print J9757] and Australian Timber Union and D & G Claridge [Print J1233] and S. Asker and Woolworths (SA) Pty Ltd [Print P2196] in relation to summary termination occurring where swearing involved - Commission concerned by racial nature of verbal abuse which added significantly to its gravity - whilst satisfied applicant verbally abused supervisor Commission not satisfied on balance that supervisor was actually physically threatened - Commission concluded applicant's actions were such to warrant termination with notice but not sufficient as to warrant summary dismissal - compensation of two weeks pay awarded.

Printed with the authority of the Australian Industrial Relations Commission