TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The Australasian Meat Industry Employees Union,
Tasmanian Branch
(T.5776 of 1995)

and

Devonport City Abattoirs

Industrial dispute - termination of employment - misconduct - application dismissed

REASONS FOR DECISION

This application was lodged by The Australasian Meat Industry Employees Union, Tasmanian Branch (the applicant), pursuant to section 29 of the Industrial Relations Act 1984, for the purpose of settling a dispute between the applicant and Devonport City Abattoirs (the employer) over the termination of employment of Mr Ian Sutton (the employee) on 28 August 1995.

The applicant was of the view that the termination was harsh, unjust and unreasonable and sought reinstatement of the employee to his former position.

The employee was dismissed by Mr R J Brown (a director of Devonport City Abattoirs). on 28 August 1995, after it had been reported to him on 25 August 1995 that the employee, on the 23 August 1995, had been observed badly treating sheep by hitting them around the head with a "shackle" in the sticking pen.

A shackle is an implement of two moving parts specifically designed and constructed for the purpose of carrying an animal carcass on a rail, usually from the sticking area to a point for dressing on the production line.

Mr Andrew Darryl Barker, employed by the employer as a drover, was a witness to the event on 23 August 1995 and it was he who made the report to Mr Brown. It was this incident that eventually led to the dismissal of the employee.

Mr Barker gave evidence to the Commission on two occasions and his version of events was not discredited or overturned during the course of cross-examination.

On pages 87/88 of transcript he had this to say :

On Wednesday morning 23 August 1995 I was in the sheep pen at the Devonport City Abattoirs. I often walk up the small ramp to the sticking pen to check how many sheet the slaughterman has in there. If he only has one or two then I know I have to move more sheep up. If he has 20 sheep or so in there I know I have got time to go on with my other duties. On this morning I saw Ian Sutton in the sticking pen with approximately five sheep. Ian was hitting the sheep around the head with a shackle. It was patently clear to me that he was in a rage. He was not trying to stun the sheep, he was yelling and swearing in a very agitated manner. Whilst I cannot specifically recall the exact words he used they were to the effect, 'Take that you fucking arsehole' as he hit the sheep. There was no system to him hitting one sheet and either cutting its throat or putting it on the shackle, he was just in a rage taking his anger out on the sheep. I was appalled by his behaviour. I did not say anything to him. However, he knew I was there and had observed his conduct. I supposed I watched him for about 1 minute. Some of the sheep went down when he hit them and some didn't. I knew that both Dale Grey and John Brown were both away. I made up my mind at that time to report the incident because with my experience with stock I had never seen anyone treat animals like this. When John Brown returned to work on Friday I immediately reported the incident to him

Mr Brown, through his evidence, informed the Commission that on the morning of Monday, 28 August he called the employee together with Mr Ian Stuart (Jim) Rawlings (Foreman Slaughterman) to his office. He informed the employee that he had several reports that he (the employee) had mistreated sheep by knocking them about their head with a shackle. He said that Mr Sutton admitted it and he (Mr Brown) said :

You know the law here. You can't do that. You have to go. I have no alternative and you have to go now.

Whilst "several reports" may have been a slight exaggeration, nevertheless the evidence indicates that Mr Brown had discussions with an unnamed truck driver and an unspecified number of ex employees who purportedly made some statements relating to the way Mr Sutton treated animals.

I have placed no weight on this evidence as there was insufficient material before me to arrive at any positive conclusion.

Mr Rawlings corroborated much of the evidence of Mr Brown and stated in his evidence that :

When Ian Sutton was called into the room, John Brown put to him that he had been mistreating sheep by hitting them around the head with a shackle. He said this took place the previous Wednesday which was I believe the 23rd August, 1995. Ian Sutton said "yes I have done it". John then said "I have no alternative but to let you go" (meaning dismissal) Ian Sutton then said "yeah I understand. Ian Sutton then just left.

Page 84 of Transcript

On or about the 6 September 1995 Mr Barker was interviewed by Mr Frank Allen Bingham, an Animal Welfare Officer with the Royal Society for the Prevention of Cruelty of Animals Tasmania Inc. Mr Bingham was carrying out an investigation in relation to a potential breach of Part 2, section 8 of the Animal Welfare Act 1993. In his evidence to the Commission Mr Bingham stated :

And from that point I made enquiries as to the whereabouts of Mr Sutton to go and speak to him and I did in fact speak to Mr Sutton on 6 September at his address in Ulverstone. Mr Sutton admitted to me that as a result of his temper he had struck some sheep on occasions with a sheep shackle. When I asked him why he said because sometimes they were difficult to handle, sometimes he had been kicked, and it was his response to his temper. I asked him when the last time was that he had committed such an act he wasn't too sure but he said he believed it to be July.

Page 30 of Transcript

Mr Bingham, at the conclusion of his interview with the employee on 6 September 1995, issued him with an Instructions by an Officer pursuant to section 14 of the Animal Welfare Act 1993. The instruction to the employee was as follows :

Do not do any act which causes unreasonable and unjustifiable pain or suffering to an animal.

The employee, who had been employed by the employer on and off for the past five years, did not deny that he had knocked out 20 to 30 sheep with a shackle over that period of employment. However, he stated it had been for the reason that either the sheep had scabby mouth or had been jumping around and hard to control. He said that one hit would render the sheep unconscious and the last time he remembered hitting a sheep over the head with a shackle was in July 1995, some five weeks before the dismissal took place.

On the day of the dismissal, that is 28 August 1995, the employee said he was called into Mr Brown's office and accused of hitting a pen full of sheep. He said that he denied hitting a pen full, but said "I have hit sheep". Resulting from earlier questioning from the Commission the employee acknowledged that on the day in question he had hit one scabby mouth sheep with the shackle.

The employee stated that he was aware of the company's policy in respect to cruelty to animals but he didn't know of any policies which stated that a shackle could not be used to stun sheep. However, during cross-examination he clearly understood and was aware that under State legislation only certain methods could be used to either stun or slaughter sheep. He also acknowledged that no person of authority within the company had said that the use of a shackle was an acceptable method for stunning sheep. He said that he had never seen a shackle used in any other abattoir to stun sheep but it was common practice within the employer's establishment.

The employee denied -

(a)  the incident on the 23 August 1995 even took place; and

(b)  that he was in a rage in the pen.

The role of the Commission in a matter such as this is not to impose its view over and above that of the employer, unless it can be clearly established by the applicant that the dismissal was harsh, unjust or unreasonable or there was some denial of natural justice or what is commonly known as a denial of "procedural fairness" or "industrial fair play". In this matter I believe the onus has not been discharged by the applicant.

I have examined the evidence very carefully and noted the way in which the people who gave evidence under oath responded to the questions put to them and I have arrived at the conclusion that on balance the incident described in a clear and unambiguous way by Mr Barker did take place.

No evidence was presented which established that there were any mitigating circumstances that warranted the employee taking the action he did or that the sheep were in some way diseased or difficult to handle and there was no other approved alternative method (within the meaning of section 41 of the Meat Hygiene Act 1986) for stunning sheep available to him.

That being the case I consider the actions of the employee on 23 August 1995 constitutes misconduct within the meaning of Clause 53 - Termination of Service of the Abattoirs Award and therefore the Commission is not prepared to intervene in this matter and the application is dismissed, and I so Order.

In conclusion I would have to say that a lot of time and effort could have been saved when dealing with this matter if the employer's investigation and interviewing procedures were brought up to date and clearly documented. It is my strong recommendation that those procedures be reviewed.

R J Watling
COMMISSIONER

Appearances:
Ms F Robinson of Counsel (28/11/95) with Mr J Swallow (18/9/95, 25/10/95 and 28/11/95) for The Australasian Meat Industry Employees Union, Tasmanian Branch with Mr I Sutton
Mr M Flynn (18/9/95), Mr G Doolan of Counsel (25/10/95 and 25/11/95) with Mr D Grey and Mr R J Brown for the Devonport City Abattoirs

Witnesses giving evidence under oath :
Mr Ian Sutton
Mr Norman Arnold White - ex-employee - Devonport City Abattoirs
Mr Frank Allan Bingham - Animal Welfare Officer - RSPCA
Mr Reginald John Brown - Director - Devonport City Abattoirs
Mr Ian Stuart (Jim) Rawlings - Foreman Slaughterman - Devonport City Abattoirs
Mr Andrew Darryl Barker - Drover - Devonport City Abattoirs
Mr James Gobbey - Chief Inspector of Meat Hygiene - Department of Primary Industry and Fisheries Tasmania
Mr Kerry Bugg - Meat Hygiene Standards Officer - Department of Primary Industry and Fisheries Tasmania

Date and place of hearing:
1995
September 18
October 25
November 28
Launceston

EVENTS

1. Mr Sutton, the employee, had his employment terminated on 28 August 1995.

2. Alleged misconduct because he knocked out sheep using a shackle prior to slaughtering.

3. On 27 August 1995 a truck driver (unknown) reported to the company that he had witnessed a person, answering the description and nickname of Mr Sutton, knocking out the sheep with the shackle and requested that something be done about it. The evidence does not show how many sheep the unidentified person witnessed being hit with a shackle, not the day that the incident took place.

4. The following day the employee was called in and dismissed by Mr Brown and Mr Grey.

5. The Meat Hygiene Act states that - section 41

6. There was no evidence of the precise day on which the incident occurred.

7. Some days prior to the dismissal 200 calves were made unconscious by hitting them in the head with a hammer.

8. Animals have been known to be stunned by the use of axe, pipe, hammer and shackle.

9. The employer maintains when hammer and axe has been used it has been done with approval under section 41 (e) of the Meat Hygiene Act.

10. No evidence of this approval was submitted during the course of the hearing.

11. Employer maintained stunning sheep with the shackle was cruel. However, employee maintained it was less cruel than just slitting the throat of the animal without being unconscious.

12. Argument developed around the question of whether or not it was more or less cruel to stun an animal by captive bolt or hammer or axe, or for that matter a shackle if used with sufficient force.

13. Employer has strong policy against cruelty to animals.

14. During the course of the hearing the Commission was not shown a copy of the policy, nor was it shown what constituted cruelty to animals, nor was it shown why the use of a shackle was any different to a hammer or an axe, nor was it shown where the employer had put notices or signs to demonstrate that the use of certain implements could be constituted as being cruel when stunning animals (especially given the employers submission that a number of the employees are illiterate).

15. Commission was not informed as to whether or not employees were told that they were only allowed to use certain methods for stunning animals and how or when or where could they apply to adopt other methods if none of the approved methods were available.

16. There are only three captive bolts for the whole establishment.

17. The number of sheep stunned on the day in question by the employee is uncertain due to lack of evidence.

18. Commission was not informed how many sheep the employee stunned on the day in question and their condition e.g. scabby mouth etc..

19. The separation Certificate given to the employee stated that the employee "did not carry out directions as required by management". Those directions were not identified, nor was the Commission informed of the day on which those directions were given, nor did the employee know what the directions were.

20. Evidence clearly shows that in January 1995 there was a meeting of all staff and the question of cruelty to animals was discussed. This arose out of an incident where a sheep had its ears removed and stabbed in the back and pushed into the bloodline. However, there was no evidence to suggest that employees were also told exactly what methods should be adopted to stun animals and what methods could be categorised as being cruel insofar as they relate to the company's policy on cruelty.

21. Employee admitted to stunning sheep with shackle. Commission unable to establish whether or not it was cruel or outside the company policy as there was no evidence to show that the sheep was not stunned by a single blow or suffered in any way.