T3150
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union and Pasminco Mining - Rosebery
Industrial Dispute - alleged unfair dismissal REASONS FOR DECISION In this matter application was made by The Australian Workers' Union, Tasmanian Branch (AWU), for the reinstatement of Mr J Murray who was dismissed from his employment with Pasminco Mining - Rosebery (Pasminco) on 14 June 1991. Following proceedings in Burnie on 25 July 1991 I informed the parties that the Commission would not interfere with the decision of Pasminco to terminate the employment of Mr Murray. The following reasons are in support of that decision. The circumstances in this matter were that Mr Murray verbally abused his foreman, Mr Bracken, on three separate occasions within a space of approximately six to eight minutes following his arrival at work. The incidents may not have occurred were it not for the fact that Mr Murray was requested to attend Mr Bracken's office to be presented with a safety award and a knife for his general tools. There is little doubt that the presentation of the safety award sparked the attack on Mr Bracken. Mr Murray said in sworn evidence that in his opinion the approach to safety at the mine is hypocritical and because of this he threw the safety award on a bench in the foreman's office. He made his views known to Mr Bracken in the presence of the Mining Engineer, Mr Dennis. Mr Murray then left the office only to return a minute or so later when he again abused Mr Bracken about the safety award intimating that he considered it to be a "lot of rubbish". Other more descriptive language was also used by Mr Murray. He then launched a vitriolic personal attack on the foreman during which time Mr Bracken remained passive. Mr Murray again left the office only to return a third time. On that occasion he was directed to go home as he was considered not capable of performing his work given his agitated state. On the following day Mr Murray was requested to attend the Mine Office where his employment was terminated having previously received a final warning when in August last year he "cuffed" Mr Bracken on the ear. The final warning specified among other things "any further breaches of discipline on your behalf will result in the termination of your employment". (Exhibit S.1) Having regard to the sworn evidence of Mr Bracken and Mr Dennis I was satisfied that the abuse of Mr Bracken justified the termination of employment. It was obvious from the evidence that over time there had developed a great deal of antipathy between Mr Murray and Mr Bracken. It was elicited from Mr Bracken in the witness stand that the verbal abuse he received from Mr Murray on this occasion was more volatile than the incident in August 1990 when he was hit on the side of his head. I was also made award that this was not the first time that Mr Murray had verbally abused Mr Bracken although the other lesser incidents were not acted upon. Mr Lowe for the AWU submitted that Mr Bracken or Mr Dennis should have intervened earlier to prevent Mr Murray from reaching the level of agitation which resulted in the abuse. On that point I accept that the approach of Mr Dennis and Mr Bracken to remain passive was the right option. Had they not been inclined that way in all likelihood the altercation may have escalated even further. It was made clear by Mr Bracken in his sworn evidence that he had dealt with Mr Murray previously and that "it was best not to say anything". In my view that was a very prudent assessment of the situation by Mr Bracken. I reject out of hand any notion that the responsibility for the incidents that took place rests anywhere other than with Mr Murray. A further issue in the proceedings concerned the general language used by some employees in the workplace. I understand that on occasion there is resort to a certain descriptive type of language. Mostly this may be classified as non threatening albeit from what was said in the proceedings it could be regarded as colourful. However it is drawing a long bow for Mr Lowe to suggest that because of the incidence of that type of language, from time to time, that this in some way militates in favour of Mr Murray. Mr Murray's was a malicious verbal attack on his foreman and the responsibility for this cannot be diverted away from him. In all of the circumstances and having regard to the final warning provided to Mr Murray I was satisfied that his dismissal was not harsh, unjust or unreasonable.
R K Gozzzi Appearances: Date and Place of Hearing: |