T8555
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mark Edward Rand and BOC Gases
Industrial dispute - alleged unfair termination of employment and denial of procedural fairness - valid reason for termination - no denial of procedural fairness - application dismissed REASONS FOR DECISION On 6 August 1999, Mr M E Rand (the applicant) applied to the President for a hearing pursuant to Section 29 (1A) of the Industrial Relations Act 1984. In his application, Mr Rand alleged that the respondent, BOC Gases, unfairly terminated his employment on 26 July 1999 after about seven years service.1 The respondent, according to Mr Rand, relied on untrue allegations made against him by another person. Mr Rand, in denying the truth of the allegations, said in effect that he was innocent of any wrongdoing. Mr Rand applied for reinstatement. M Verney for the applicant: Evidentiary Considerations The applicant gave his evidence in a clear, concise and unruffled fashion, which he maintained notwithstanding a searching cross-examination. Mr Rand described instances of disputation and difficulty that he had with a co-worker, Mr Craig Turale2. He said the conduct of Mr Turale - instancing an occasion when Mr Turale did not make available records that he (Mr Rand) needed to complete his job - made his duties more difficult to perform. Mr Rand also gave evidence concerning his involvement in certain alleged incidents during February, April and July 1999 that included Mr Turale. In particular, he mentioned an incident that occurred on 7 April 1999 in which, he alleged, Mr Turale pushed him through a doorway. Mr Turale's employer, however, complained in writing to the respondent that it was Mr Rand who had "pushed, argued and sworn at" Mr Turale.3 Because of that complaint, of which Mr Rand was not given a copy until about one week later, the respondent suspended the applicant pending the outcome of an investigation. At the time, Mr Rand denied any physical contact with Mr Turale - a denial he repeated in cross-examination in the current proceedings. Similarly, Mr Rand denied the alleged offensive conduct - verbal abuse and general harassment of Mr Turale on 24 February 1999 - that led to the respondent issuing him with a "Final Written Warning" on 3 March 1999.4 Mr Rand said he had refused to sign the memorandum of warning because of the untrue statements that it contained. Concerning the July 1999 incident, the respondent suspended the applicant on Thursday 22nd because it was alleged he had physically harassed Mr Turale.5 Mr Rand denied that there was any contact of a physical nature with Mr Turale. Once again the respondent failed to provide Mr Rand with an opportunity to have all the allegations put to him in writing - the written records of witness interviews were merely read to him. In cross-examination, Mr Rand also denied that, at a subsequent meeting on 26 July 1999, the respondent had given him an opportunity to review the witness statements. It is significant that at no stage during the meeting of 26 July did the respondent inform Mr Rand that the proceedings would or could result in the termination of his employment. Mr Darrel Luck and Mr Aidan Kelly were former employees of the respondent. They both gave evidence that confirmed the difficult nature of the relationship between Mr Rand and Mr Turale. Mr Rodney Midson, the respondent's state manager, said he had spoken with all Company employees regarding the incidents involving Mr Rand and Mr Turale. He conceded in cross-examination that Mr Rand was a conscientious and hard working employee. Mr Midson also accepted that Mr Rand had denied the alleged incident of 7 April 1999 and that, concerning the incident of 22 July, he had suspended Mr Rand's employment without conducting any inquiry at all. Regarding the 26 July meeting with Mr Rand, Mr Midson agreed that the discussions occupied about two hours. He also conceded in cross-examination that he did not think he told Mr Rand that his job might be about to end. What Mr Midson told Mr Rand was that he could not pre-empt a decision because "I'd have to refer this to our personnel department for advice and talk to them about it and then organise another meeting".6 There is no evidence before the Commission that suggests such a meeting ever took place. Mr Midson's evidence in cross-examination also discloses that, at the meeting of 26 July, Mr Rand may not have had an opportunity to have with him some other person, a "next friend" so to speak, who was truly independent. Exhibit V6 appears to be a computer print-out, dated 23 July 1999, that shows full details of Mr Rand's "Termination Payment". Mr Midson said that it was the document given to Mr Rand at the time of his termination. However, in cross-examination, he was unable to explain why the date of the document apparently preceded the respondent's decision to terminate Mr Rand's employment by some three days. In the course of re-examination, questions were put to Mr Midson regarding different type fonts that appear on the face of the exhibit for the purpose of suggesting that the document "wasn't even produced on 23 July?".7 None of that evidence is relevant. In any event, it is insufficient for the purpose of suggesting that the document was in some way erroneous. Moreover, since Mr Midson did not create the document, he was not competent to impeach its veracity. Mr Brett Rogers, a Customer Service Officer employed by BOC Gases, gave evidence for the respondent. Mr Rogers' evidence was unconvincing. He was clearly evasive in his answers, especially under cross-examination. He was also extraordinarily inaccurate when it came to issues such as distances and layout of the work area involved. While those matters are not particularly relevant, they do strike at Mr Rogers' credibility in the context of his demeanour as a witness. Mr Dean Breward was the Devonport Manager of BOC Gases at the time the Company terminated Mr Rand's employment. There were some differences between his evidence and that of Mr Midson regarding the date, time and duration of the 26 July meeting. Furthermore, he gave evidence contradictory to that of Mr Midson regarding whether Mr Rand was told that his continued employment depended upon the outcome of the 26 July meeting. There is a conflict between the evidence of the two witnesses that can only damage the credibility of either one or both of them. In cross-examination, Mr Breward indicated that the document comprising Exhibit V6 could have been called for on either Friday 23 July 1999 or on the following Monday. Given that Exhibit V6 bears the date of 23 July 1999, it is open to the Commission to make its own conclusion as to the document's actual date. As to type fonts and the like, Mr Breward was re-examined at some length. However, because he admitted that he did not create Exhibit V6, Mr Breward was not qualified to give evidence that might impeach the document. The only witness who could have given such evidence - the person who created the document - was not called as a witness. Contentions The Commission is not bound by the rules of evidence. However, in the interests of fairness, it must give them appropriate weight. In particular, regarding Exhibit V6, the Commission must consider what is fair to both parties. The respondent was given an opportunity to oppose tender of the document as evidence or, at the very least, to make submissions in respect of it. That opportunity was not accepted. Consequently, the only way the veracity of the document could have been challenged was by the respondent calling the person who created it to give evidence. That did not occur. In the circumstances, it is open to the Commission to find - and the Commission should so find - that the respondent created the document that comprises Exhibit V6 before the date on which witnesses Midson and Breward said the Company took the decision to dismiss Mr Rand. Since the document bears the date of 23 July and Mr Midson could not explain why it bore that date, the Company clearly prepared it in contemplation of Mr Rand's termination before the meeting of 26 July 1999 and before telling him that his job was in jeopardy. What flows from this conclusion is that witnesses Midson and Breward are either mistaken in their evidence or one or the other of them is lying. In either case, their evidence is clearly wrong. In addition to that problem, there is the very clear conflict in the evidence of witnesses Midson and Breward regarding whether Mr Midson, at the meeting of 26 July, did or did not tell Mr Rand that his continued employment might be at risk. The evidence of the same witnesses also conflicts in a number of other areas, e.g. the time the meeting of 26 July commenced and its duration. The Commission must decide whom to believe if it is to resolve the evidentiary conflict. In that regard, it must look at the demeanour of the witnesses as they gave their evidence. In any event, there is a real question mark over whether the respondent's procedure was fair. In particular, the respondent (a) did not tell Mr Rand that his employment might come to an end as a consequence of the meeting of 26 July; (b) did not provide Mr Rand with a written copy of the allegations made against him, so that he might properly consider his position; (c) did not give Mr Rand a real opportunity of having an impartial person, or next friend, with him at the meeting of 26 July; and (d) suspended Mr Rand's employment a few days before terminating his employment without having made any inquiry at all into the circumstances. It is significant that, although Mr Turale initially made all the allegations against Mr Rand, the respondent employer did not call that person to give evidence. Having regard to the amount of evidence put to the Commission by Mr Rand and other witnesses that involved Mr Turale, the Company's failure to call him as a witness, when he was clearly available, is questionable. Since the only person who could contradict Mr Rand's evidence was not called as a witness, the veracity of his evidence is unchallenged. In the circumstances, it is open to the Commission to make an inference, favourable to Mr Rand, that Mr Turale's evidence would not have been helpful to the respondent in that it would not have contradicted Mr Rand's evidence - Jones v Dunkel (1959) 101 CLR 298. The issues before the Commission are plain. The respondent terminated Mr Rand's employment in circumstances that were unfair. In particular, Mr Rand was unaware of the purpose of the meeting of 26 July; but, in any event, the evidence shows that the decision to end his employment was taken three days before that meeting. Furthermore, because there is no evidence as to the basis of the termination, the respondent's termination of Mr Rand's employment was also unlawful in that there was no valid reason for the Company to dismiss him. Should the Commission find in the applicant's favour, the evidence in these proceedings and the time that has elapsed since the termination make it obvious that reinstatement is not practical. Consequently, the Commission must look at compensation. In that regard, other than for a 17-day period at Goliath during which he earned $2100 Mr Rand, who is 43 years old, has not been able to obtain employment since his termination. At the time of his dismissal, Mr Rand was earning, in gross terms, $640 per week. Even after allowing for his earnings at Goliath, Mr Rand has still lost an amount of about $10,000 in gross wages. In addition, the fact that the respondent unfairly terminated his employment demonstrates a clear entitlement in Mr Rand to compensation for loss of future earnings. As to the respondent's reliance on Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233, there is no evidence before the Commission upon which it might ground a finding that Mr Rand's employment would have come to an end if not on 23 July then at a later date. That is because of the chronic number of procedural defects that surround the employer's case. A Cameron for the respondent: Evidentiary Considerations Concerning worthiness of the witness evidence, Mr Rogers was a very nervous witness for the employer. He also admitted that he was not very accurate with his measurements and could not get them right. However, he was very clear as to what he had seen of the two events that comprised the 22 July 1999 incident. In that regard, he was adamant that he saw Mr Rand deliberately push and shove Mr Turale. The Commission should not discount his evidence simply because he was a nervous witness. The evidence of Mr Midson, concerning whether or not he told Mr Rand that his continued employment might be at risk, was that "I don't think I did".8 Mr Midson's response was neither a definite "No" nor a definite "Yes" - he simply indicated that, some five months after Mr Rand's termination, he could not recollect if he had made such a statement. Mr Breward on the other hand, under intense questioning in cross-examination, said on a number of occasions that Mr Midson told Mr Rand at the beginning of the 26 July meeting that the matter was serious and one that could affect his employment. In the circumstances, to say that there was a conflict between what Mr Midson and Mr Breward each said on this issue is probably stretching the evidence somewhat. There was simply a failure of recollection on Mr Midson's part, but no absolute denial. Mr Rand himself gave conflicting evidence on a couple of occasions. On one occasion, he said his termination took place on 22 July 1999, the day of the actual incident, whereas his actual termination date was 26 July. On another occasion, during examination-in-chief, he denied all aspects of the April 1999 incident - yet, in cross-examination, he admitted to swearing at Mr Turale at the time of the incident. Those are examples of Mr Rand contradicting his own evidence, whereas the evidence of witnesses Midson and Breward reflected only a non-recollection of an event (Midson) or the positive assertion that a particular event occurred (Breward). As for the evidence of witnesses Luck and Kelly, they nowhere asserted that Mr Turale at any time initiated or instigated problems with Mr Rand. It is also true that the two witnesses did not see Mr Rand initiate any problems. But that fact does not support the applicant's proposition, that Mr Turale caused all the problems. In his evidence, Mr Rand specified only two problems with Mr Turale: Whether Mr Turale should have left behind certain books for Mr Rand's use and an incident concerning Mr Turale's use of a car parking space normally occupied by Mr Rand. One other incident mentioned by Mr Rand concerned missing keys, but there is no evidence whatsoever in relation to that issue. In the circumstances, the evidence does not substantiate the applicant's claims that Mr Turale harassed Mr Rand. Contentions A matter like this should not be before the Commission. It is a straightforward issue that concerns the termination of an employee who had received prior warnings for similar incidents. Mr Rand received as much support from his employer as was possible. Mr Rand's own witness, Mr Kelly, and Mr Midson and Mr Breward, all tried on a number of occasions to encourage meetings between the parties to attempt to resolve differences. The respondent also provided outside counselling to both Mr Rand and Mr Turale. That, too, after an initial refusal by Mr Rand, was unsuccessful. In short, the employer did everything possible to try to resolve the conflict between Mr Rand and Mr Turale. The respondent also did everything it possibly could to ensure that it treated Mr Rand fairly. At the time of the initial incident in February 1999, the employer carried out a proper investigation into the matter. Mr Midson gave evidence, as did Mr Rand. Mr Rand confirmed that part of that incident involved him swearing at Mr Turale. Because of the investigation, a final warning issued, from which time, according to Mr Rand's own evidence, he knew that his job was on the line.9 Notwithstanding that knowledge, a further incident occurred between Mr Rand and Mr Turale in July that led to Mr Rand's termination. Before effecting that termination, the employer did all things properly. The allegations were put to Mr Rand in writing; on the day of the incident Mr Rand was told why he was being stood down with pay, which the Company later confirmed in writing; Mr Midson assured Mr Rand that he would conduct the investigation himself; the investigation, which took place the following day, included interviews with other employees - in particular witness Rogers and the complainant, Mr Turale; and the process concluded with a meeting and discussions with Mr Rand. There is some evidentiary conflict about how long that meeting took - Mr Midson said it was just short of two hours while Mr Breward believed that it took at least an hour. In any event, Mr Rand had every proper opportunity to defend his position in relation to the allegations made against him. At the end of the meeting Mr Rand was asked to leave and to return when a decision had been taken. In the current proceedings, no one denied that tensions existed between Mr Rand and Mr Turale. However, neither Mr Luck nor Mr Kelly could provide any evidence at all that Mr Turale ever initiated any of the problems that arose between himself and Mr Rand. Furthermore, both witnesses had left the respondent's employment some four or five months before the February 1999 incident-the event that led to the final warning. Consequently, they were not in a position to see how things developed between the two men or to say what relationship existed between Mr Rand and Mr Turale from that time. The only information they provided was that there was an underlying tension between both parties. As to incidents involving Mr Turale, Mr Rand could only refer to an unsubstantiated allegation regarding keys; a one-off event involving the use of a car parking space; and an instance where Mr Turale did not provide Mr Rand with certain books, although there is no evidence to suggest that, in any case, the books were not Mr Turale's own property. There was also some reference to cylinder deliveries. However, Mr Rand admitted that, aside from a general effect on the business, that problem did not really affect his job. There is no evidence that any of those matters directly interfered with the manner in which Mr Rand performed his duties. Concerning the February 1999 incident, the respondent invited Mr Rand to vary or change the document in the event that he did not agree with it. Although he was given an opportunity to change the document and was repeatedly asked to sign it, Mr Rand declined to and never did sign the document because he said it contained untrue statements. In addition, the respondent offered Mr Rand counselling with the Company's managers and with an outside counsellor. At that time, Mr Rand refused all the employer's offers of assistance. The substance of the incident that led to Mr Rand's termination, according to the employer's investigation at the time and the evidence in these proceedings, is that Mr Rand deliberately pushed Mr Turale on two occasions. The evidence of Mr Rogers, who was subject to lengthy cross-examination on the point, confirmed those events. Mr Rogers, who was a very nervous witness, admitted he was not good with measurements. However, he was nevertheless very certain of what he saw. He also said that he held no personal dislike of Mr Rand and believed they got on quite well together at the workplace. Following a complaint of harassment from Mr Turale's employer, Mr Breward informed Mr Rand of the details of the complaint and suspended him on normal pay pending an investigation. Mr Rand rang Mr Midson, who confirmed the suspension. On Friday 23 July 1999, Mr Midson conducted an investigation into the matter, during the course of which he spoke to Mr Rand, Mr Rogers, Mr Turale, Mr Breward and to other employees. He then tried to telephone Mr Rand to call him back to the worksite, but was unable to make contact. Mr Breward also attempted to ring Mr Rand during the weekend, but he was unsuccessful. Finally, on the following Monday morning, Mr Midson and Mr Breward went to Mr Rand's residence where they informed him of a proposed workplace meeting that afternoon. Mr Breward's evidence, confirmed by Mr Midson, is that they then told Mr Rand that he could have someone with him at the meeting. At the Monday afternoon meeting Mr Midson read to Mr Rand notes he had taken of conversations held with Mr Rogers and Mr Turale. Contrary to the applicant's assertions there is no obligation, legal or otherwise, for an employer to put written allegations to employees. It is normal in an employment relationship for the parties to attempt to resolve issues by conversation. Mr Breward confirmed that the employer then went over Mr Rand's prior warnings, the Company's policy on harassment,10 and the counselling undertaken with Mr Rand and Mr Turale. Mr Rand's response, which he confirmed in evidence, was that he denied the allegations. Mr Rand also claimed, without advancing any supporting evidence, that Mr Turale tried to trip him. That allegation was completely contrary to the evidence provided to the employer by Mr Rogers and Mr Turale. The evidence given by Mr Rand in cross-examination shows there was plenty of opportunity at the meeting for him to respond to the employer's allegations. Mr Rand acknowledged that the employer read to him notes of discussions held with Mr Rogers and Mr Turale, but he said he was not allowed to look at the statements. Mr Rand also confirmed that he had an opportunity to comment on anything disclosed in those interviews. Consequently, at the time of the meeting, Mr Rand knew what the allegations against him were, the notes of interviews were read to him, and he had full opportunity to comment on anything and to provide a reasonable defence to the allegations. However, apart from denying them, he did not respond to the allegations; he did not say that Mr Turale provoked him; and he did not provide any reasonable excuse which the employer might have taken into account in his favour. It is also relevant to note that on previous occasions, when the employer had asked Mr Rand to put into writing any complaints that he might have against Mr Turale, he declined the opportunity. The evidence of Mr Midson and Mr Breward is that, after the meeting with Mr Rand, they consulted with the Company's human resources department and another senior manager before taking the decision to terminate Mr Rand's employment. Both witnesses testified under oath that they took their decision after the meeting with Mr Rand. Concerning the timing of the Company's decision, the applicant relied heavily on the termination payment document tendered as Exhibit V6. In particular, reference was made to dates shown in various places on the document, i.e. different type fonts and different calculation dates for long service leave and salary purposes. Mr Breward's evidence was that he could not recall whether he requested the information shown in Exhibit V6 from the Company's human resource department on Friday 23 or Monday 26 July. But, that request on its own does not necessarily mean that a decision to terminate Mr Rand had already been taken. Mr Breward's own evidence is that, while he was the person who called for the information, he had not at that time made up his mind on the matter of Mr Rand's termination and did not do so until the following Monday. Exhibit V6 was not itself executed, even though there was provision on its face for such authorisation, dated 23 July 1999. The Company subsequently provided the document to Mr Rand under cover of the termination letter of 26 July, which Mr Breward signed after taking the decision, with Mr Midson, to terminate Mr Rand's employment. There is no suggestion that the document conveys anything more than a calculation of wages due up to a particular day or days, as the case may be. Furthermore, there was no evidence put to the Commission by the applicant supporting the suggestion that the employer requested the document because the Company had already taken a decision to terminate Mr Rand's employment. To the contrary, two employer witnesses - Midson and Breward - each gave evidence on oath that the Company took the decision to terminate Mr Rand on 26 July after giving him plenty of opportunity to respond. The employer had a valid reason to terminate Mr Rand's employment. The evidence shows that Mr Rand did not treat the contractor's employee in a proper manner, i.e. a final written warning, the evidence of two witnesses who spoke to the employer, and written complaints from Mr Turale's employer upon which the employer rightly acted. Mr Rand, in these proceedings, acknowledged the final warning and that he was aware his job was on the line. The Company offered Mr Rand as much assistance as was possible and, to the best of its ability, carried out a proper investigation into the contractor's allegations by speaking at length to the witnesses involved and to Mr Rand. On the morning of Monday 26 July, the employer invited Mr Rand to have a witness present at the meeting proposed for later that day. When the employer repeated the invitation at the beginning of the meeting, Mr Rand said there was no one available. However, he did not ask for the meeting to be adjourned until he could find a witness. Part II of the International Labour Organization's Convention concerning the Termination of Employment at the Initiative of the Employer (the ILO Convention), to which the Commission must refer, does not require an employee witness to be present at a meeting of the kind held on 26 July. The employer does not deny that the presence of such a person is a matter of fairness. However, the fact that a witness for Mr Rand was not present at the meeting does not necessarily mean that there was unfairness or a denial of natural justice. Mr Rand was given ample opportunity to respond to the allegations put to him, whether the duration of the meeting was either one or two hours and, based on the evidence before it, the Company took a decision on the balance of probabilities. Having taken that decision, the Company gave Mr Rand proper notice, or compensation in lieu of notice, that exceeded the minimum requirements of the award. In referring to the absence of witness evidence from Mr Turale, who is not an employee of the Company, counsel for the applicant played on procedural defects to indicate that the Company may not have fairly terminated Mr Rand's employment. In determining whether the termination was fair, it is not the Commission's role to put itself in the employer's position. Having undertaken a proper investigation, the Company preferred the evidence of Mr Turale and Mr Rogers to that of Mr Rand. That was the Company's right in exercising its authority to terminate an employee's employment. Decided authority supports the proposition that, even if there is some procedural defect - which the employer does not concede in this case - the substantive reasons for termination can, where appropriate, subordinate those defects - Dickinson v Woolworths Safeway Pty Ltd.11 The fairness test must apply to both employer and employee. An employer is not only responsible for its own employees, but for other persons on the premises, in that it has an obligation to protect them from harassment. In the present case the physical conflict between Mr Rand and Mr Turale, particularly following a final warning about the same matter, served as reasons justifying termination. Even if there were procedural problems present - which the employer denies - the Commission must look at what would have happened in the normal course of events if termination had not occurred when it did - Nicolson v Heaven & Earth Gallery. The applicant's submission is, in effect, that the Company - as disclosed by Exhibit V6 - unfairly decided to terminate Mr Rand on 23 July and before the meeting of 26 July. However, even if that were the case then, most likely, termination would still have occurred on 26 July following the Company's investigation and interviews. Should the Commission find in favour of the applicant, the respondent opposes reinstatement. Not only has a substantial period of time elapsed since the termination, but another person currently works at the Company's Devonport store carrying out duties substantially similar to those performed by Mr Rand. In addition, the evidence of both Mr Midson and Mr Breward is that, at the time of leaving the premises following his termination, Mr Rand made threatening gestures towards both of them. In the circumstances, it would be impractical to reinstate Mr Rand. Regarding compensation, time delays that occur within the jurisdiction between lodgment of an application and a subsequent hearing, because of the Commission's commitment to hear other matters, are not issues that the Commission should take into account in assessing quantum. In short, the Commission should not penalise the employer for delays that are beyond its control. Similarly, it would be inappropriate for the Commission to take into account, in determining compensation, the fact that Mr Rand cannot now find alternative employment. The fact is that the employer acted properly at the time. In any event, there was nothing either unfair or unlawful in the Company's termination of Mr Rand's employment. In the circumstances, the Commission should not intervene in his termination. Findings-Evidentiary Issues The Witnesses Each party called into question the credibility of one of the other's witnesses. For my part, however, I saw no reason to disbelieve any of the witnesses although, in Mr Rand's case, there is reason for me to exercise caution. Neither of the parties and none of the witnesses denied that for some time tensions had existed between Mr Rand and Mr Turale. Notwithstanding the existence of that strained relationship, Mr Rand's evidence as a whole tended to suggest that he did not see himself as a contributor to those circumstances. I found his attitude in that regard to be unrealistic since, in my experience, a strained personal relationship develops from the contributions of all those involved. Consequently, in weighing Mr Rand's evidence, I propose to take into account that, in my judgment, he tended to gloss over his involvement in the tensions that existed between himself and Mr Turale. Mr Rogers was a supremely nervous witness which, no doubt, was why he appeared to adopt a very aggressive stance in the delivery of his evidence. In that regard he ultimately calmed my concerns when he said, in response to a question from the Bench as to whether he had any personal feelings for or against Mr Rand, that "No, I don't at all. Mark and I got on very well at work".12 Mr Verney, however, encouraged me to take the view that Mr Rogers was unconvincing because he was evasive with his responses during cross-examination. In my judgment Mr Rogers was not evasive. Rather, I thought that he often did not listen closely to the questions being put to him, perhaps because he clearly wanted to put the whole experience as a witness behind himself. Allowing for those human shortcomings, I saw no reason to disbelieve Mr Rogers in what he had to say. Finally, there is the evidence of witnesses Luck and Kelly. Their evidence, according to Mr Verney, was put to me for the purpose of demonstrating "the difficult nature of the relationship between [Mr Rand] and Mr Turale". 13 In that regard, I did not find the evidence particularly helpful since the facts of the case as a whole demonstrate beyond doubt-and the point was not challenged by the respondent-that workplace tensions existed between Mr Rand and Mr Turale.14 In all other respects, as Mr Cameron pointed out, the evidence of Mr Luck and Mr Kelly was not relevant because they were not employees of the respondent at the time of the events that led to the Company terminating Mr Rand's employment.15 The Rule in Jones v Dunkel It is a rule of evidence that a failure by a party to call a witness on an issue may enable a court or jury to take such failure into account as a circumstance in favour of drawing an inference on that issue-Jones v Dunkel (1959) 101 CLR 298. The "issue" upon which Mr Verney relied for the applicant in relation to Jones v Dunkel is that "although Mr Turale initially made all the allegations against Mr Rand, the respondent employer did not call that person to give evidence".16 Mr Verney rightly conceded, in relation to this submission, that the Commission is not bound by the rules of evidence-Section 20(1)(c) Industrial Relations Act 1984-but it is bound to act fairly. Consequently, he argued, the Commission must give some weight to the rules of evidence. Notwithstanding Mr Verney's submission, however, Section 29(1)(a) of the Act provides that, in the exercise of its jurisdiction, the Commission:17
In that context the first point I make about Mr Verney's proposition is that, upon hearing that the respondent did not propose to call Mr Turale, it was open to him to seek an adjournment of the proceedings to consider the impact for his client of that development. He did not do so. Second, there is the question of what evidence Mr Turale might have given that would have contradicted the evidence put forward by the respondent. In that regard I must assume that, on the evidence before me, it is unlikely that he would have denied making the complaints or having allowed them to be made on his behalf. That said, the evidence is that, apart from swearing at Mr Turale on one occasion (February 1999) and acknowledging accidental contact with him on another occasion (July 1999) Mr Rand denied every allegation made against him. In the circumstances, in responding to Mr Verney's submission, I am left with the obligation to form a view of the evidence on a balance of probability. In considering the evidence from that point of view I observe that: · In my opinion Mr Rand, in the course of giving his evidence, tended to gloss over the strong likelihood that he, too, was a contributor to the tensions that existed between himself and Mr Turale. · No evidence fell from Mr Rand's own witnesses-Mr Luck and Mr Kelly-either directly or by inference, that Mr Turale ever initiated any of the problems that arose between himself and Mr Rand. · For reasons outlined earlier and below,18 I accept the substantial thrust of Mr Rogers' evidence which, despite its inconsistencies in some parts, satisfied me that, concerning the July 1999 incident, he firmly believed Mr Rand shoved Mr Turale on two occasions. On a balance of probability, having regard to the above discussion and observations, I do not accept Mr Verney's contention that it is properly open to me on the evidence to draw the inference that he seeks in relation to the respondent not having called Mr Turale as witness. In my opinion, it is unlikely that, according to equity, good conscience and the merits of the case, any evidence Mr Turale might have given could have so substantially contradicted that of the respondent as to suggest that there was no basis for the decision it took, on a balance of probability, to terminate Mr Rand's employment. Findings-Merit Issues Section 31(1A) of the Industrial Relations Act 1984 provides that:
In this case the respondent did not contest the applicant's assertion that his termination of employment was effected at the employer's initiative. Consequently, the relevant standards are Articles 4 and 7 and, if necessary, Article 10 of the ILO Convention. Valid Reason for Termination Article 4 of the ILO Convention states that:
In Mr Rand's case the letter of termination dated 26 July 1999 is silent as to the reason for his dismissal, since it refers only to "As detailed in our discussions today ..." 19 A perusal of the evidence, however, shows that Mr Rand's dismissal followed a series of incidents that involved him and a Mr Turale-an employee of a contractor who had regular access to the respondent's workplace-during February, April and July 1999. In brief that sequence of events, from the perspective of the employer's records, commenced with a Final Written Warning issued to Mr Rand on 3 March 1999 regarding events of 24 February 1999.20 According to the particular memorandum the warning, which concerned "the verbal abuse and harassment of BOC's delivery contract driver, Craig Turale", was expressed in the following terms:
On Friday 9 April 1999 the respondent suspended Mr Rand on normal pay, pending the outcome of an investigation into an allegation by Mr Turale that he was pushed, argued at and sworn at by Mr Rand.21 Upon completion of the investigation and following a meeting on Monday 12 April 1999, the respondent lifted Mr Rand's suspension and took no further action in relation to the matter.22 On 22 July 1999 the respondent again suspended Mr Rand on normal pay pending the outcome of an investigation into allegations by Mr Turale that Mr Rand had physically harassed him. As a result of its investigations into those allegations, the respondent terminated Mr Rand's employment on 26 July 1999. It was the final warning of March, the inconclusive outcome of the April incident and the subsequent incident of the same kind that occurred on 22 July 1999 that, according to witness Midson, left the Company with "no alternative but to terminate his employment".23 I conclude, therefore, that those are the circumstances upon which the respondent relies in support of its assertion that at the relevant time it had a valid reason, connected with his conduct, for terminating Mr Rand's employment. Despite inclusion in the final warning of a reference to "unsatisfactory performance", there is nothing in the evidence put to me that suggests the respondent ever questioned Mr Rand's work performance. Indeed, witness Midson stated that he always performed his duties satisfactorily and that "he was quite hard-working and conscientious".24 The applicant, however, argued that the circumstances do not disclose a valid reason for the termination of his employment. In particular, he refused to sign an acknowledgment of the 3 March 1999 Final Written Warning because he said it contained untruths; he denied any verbal abuse of Mr Turale on 24 February 1999; he denied any physical contact with Mr Turale on or about 7 April 1999; and he denied any contact of a physical nature with Mr Turale on 22 July 1999. The February 1999 Incident In February 1999 the respondent received a written complaint from its contractor alleging verbal abuse and harassment of Mr Turale by Mr Rand. After investigating the matter the respondent, in the Final Written Warning memorandum to Mr Rand, recorded its belief that Mr Rand had acknowledged his use of the language referred to in the letter of complaint and had "confirmed that the situation was very heated and volatile"-a situation apparently witnessed by other staff members, according to the respondent. As a result of the investigation, the respondent evidently concluded that there was substance to the complaint because it informed Mr Rand that "Your offensive conduct, verbal abuse and general harassment is conduct which is clearly unacceptable to BOC Gases". The respondent also noted that, although it offered counselling to Mr Rand and an opportunity to meet with managers to resolve any issues, Mr Rand declined both offers.25 In response to questions from the Bench, Mr Midson's evidence of his discussions with Mr Rand was that Mr Rand admitted to swearing at Mr Turale, but did not agree that he had been abusive towards him. In addition, Mr Midson said, Mr Rand also disagreed with the Final Written Warning.26 Mr Midson then went on to add that, in a discussion with Mr Rand about the matter, he said:27
However, in his evidence in these proceedings, Mr Rand said that he had complained many times to former and current Company managers about the problems he was experiencing with Mr Turale.28 There was a meeting about one particular matter but, he said, "the same thing as always happens, there was just denial at the meeting".29 Mr Rand also said that, for similar reasons, he did not initially accept the Company's offer of counselling because:30
Mr Rand confirmed that, while he had sworn at Mr Turale and admitted to having indulged in a "normal argument" with him,31 he denied that his conduct was offensive and that the argument with Mr Turale was "heated and volatile".32 I am unable to see anything in the circumstances of the February 1999 incident-in so far as I can know them-from which Mr Rand might draw comfort in relation to the current proceedings. The respondent, having investigated the matter and having spoken to witnesses concluded, apparently on a balance of probability since the company was aware at the time of Mr Rand's denials, that there was some substance to Mr Turale's complaint. I accept that Mr Rand denied most of the allegations and refused to accept, as he continues to do, the validity of the Final Written Warning. However, the facts of this matter are that there is no evidence before me that provides any grounds upon which I might reasonably form the view that the respondent's decision to issue the Final Written Warning was other than an appropriate action in the circumstances. The April 1999 Incident In early April 1999 the respondent's contractor made another written complaint to the Company on behalf of Mr Turale.33 On that occasion, according to the Company's record, it was alleged that Mr Rand had "pushed, argued and sworn at Mr Craig Turale, our contract driver".34 Mr Rand again denied the allegations. The respondent investigated the matter but, according to Mr Midson, the Company could find no supporting evidence for the allegation. Consequently, he said, Mr Rand's suspension was raised and he was allowed to return to normal duties, apparently on the understanding that he would agree to attend mediation sessions with Mr Turale.35 Notwithstanding the outcome of the investigation, however, Mr Midson made it clear that, when considering in July 1999 whether to dismiss Mr Rand, the respondent took the April incident into account.36 Mr Rand's evidence was that Mr Turale pushed him. He said he had spoken to Mr Breward, who asked him if he intended to put something in writing about the matter. Mr Rand said he did not wish to do so at that time. However, within half-an-hour of the incident, according to Mr Rand, the Company had received a written complaint from Mr Turale's employer alleging that it was he, Rand, and not Turale who had done the pushing.37 Mr Rand said he denied all the allegations.38 The evidence is not clear as to what Mr Midson meant when he said the Company took the April 1999 incident into account when determining in July whether to terminate Mr Rand's employment. Looking at Mr Midson's evidence as a whole, it tends to suggest that the Company took account of the incident in a manner unfavourable to Mr Rand. If that is what happened then, in my opinion, such a course was not open to the respondent. It had investigated the complaint, found it to be unproven and, quite properly in the circumstances, concluded the matter by restoring Mr Rand to his normal duties. In my view, that was the end of the April 1999 incident. It was not then available for resurrection in relation to the considerations that subsequently occurred the following July. Consequently, I reject the April 1999 incident as being a matter of relevance regarding the existence or otherwise of a valid reason for the respondent's decision to terminate Mr Rand's employment in July 1999. The July 1999 IncidentOn or about 22 July 1999 the respondent received a written complaint39 from either Mr Turale himself or from his employer - the evidence is not clear on this point - alleging that, according to the employer's record, Mr Rand had physically harassed Mr Turale.40 As had happened on each of the prior occasions, the respondent immediately suspended Mr Rand on normal pay pending an investigation into the allegations. According to Mr Midson, Mr Turale's specific complaint was that on two occasions, some ten to fifteen minutes apart, Mr Rand made deliberate physical contact with him while walking past.41 At the time, Mr Turale was apparently at his workbench.42 In the course of investigating the matter Mr Midson, accompanied by Mr Breward, said he interviewed Mr Turale; Mr Rogers, who said he saw the incident; and Mr Rand.43 At the interview with Mr Rand, Mr Midson said that, reading from his hand-written notes, he informed Mr Rand of Mr Turale's allegations.44 He also informed Mr Rand, he said, that there was a witness to the incident and, again reading from his hand-written notes, he told Mr Rand what Mr Rogers had said.45 Mr Rogers, in his evidence in these proceedings, said he saw Mr Turale leaning on his desk "and then Mark [Mr Rand] actually came up with a box in his hand and as he walked past Craig [Mr Turale] he basically shoved him as he went through".46 Mr Rogers added that there was plenty of room for Mr Rand to get past Mr Turale. He also said that he did not hear Mr Rand apologise to Mr Turale.47 About fifteen minutes later, Mr Rogers continued, Mr Turale was standing at his desk when Mr Rand "walked up with a couple of boxes in his hand and as he walked past Craig [Mr Turale] he actually shoved him with his left elbow and then just kept walking".48 Mr Rogers confirmed that, when interviewed by Mr Midson, he told him "the same thing as what I've basically just said then".49 Mr Midson said that, after hearing the allegations and what Mr Rogers had said, Mr Rand did not deny that there had been contact between himself and Mr Turale. However, according to Mr Midson, Mr Rand denied that the contact was deliberate and added that he could not believe why Mr Rogers would have made the statement that he apparently did. At that stage, Mr Midson said he adjourned the meeting so that he could obtain advice from the Company's human resource department. When the meeting resumed, Mr Midson said he told Mr Rand that because of the ongoing issues between himself and Mr Turale, the failure of mediation to resolve those matters, the fact that the allegations were supported by witness evidence, and the existence of the February 1999 Final Written Warning, the Company had no alternative to terminate his employment.50 Mr Rand's evidence was that Mr Breward first informed him of Mr Turale's complaint, saying that Mr Turale was alleging that he had pushed him (Turale) in the back with a cardboard box.51 Mr Rand said he told Mr Breward (as he later told Mr Midson) that the allegations were definitely untrue.52 In cross-examination, Mr Rand confirmed that at the interview with Mr Midson and Mr Breward he was told of the two encounters that were alleged to have taken place with Mr Turale; that the interviewers had spoken to Mr Turale and to Mr Rogers; that the statements made by both those persons were substantially similar as to what they believed had occurred;53 that the notes taken of the meetings with Mr Turale and Mr Rogers were read to him;54 and that he was given an opportunity to comment on anything those persons were alleged to have said.55 Mr Rand also said that as he walked up to Mr Turale he said "excuse me" and definitely did not make contact with or push his elbow and a cardboard box into Mr Turale's back.56 As to the second alleged encounter, Mr Rand said it was definitely untrue that he had raised his arm and hit Mr Turale in the back. In any event, he added, he had no recollection at all of a second encounter.57 Mr Rogers, in cross-examination, contradicted his earlier evidence-that he did not hear Mr Rand say "excuse me"-by saying that he heard both Mr Rand and Mr Turale say "excuse me".58 Mr Rogers also agreed that, at the time of the relevant encounters, he was packing up parcels, which was part of his job.59 However, he said that, as to the first encounter, even though he was about two metres or perhaps more away from Mr Turale,60 he was quite able to tell whether or not Mr Rand deliberately bumped Mr Turale. Mr Rogers conceded that it was possible Mr Rand had accidentally bumped Mr Turale. However, he added, "it didn't look like that to me".61 As to the second encounter, Mr Rogers denied that he was either mistaken or lying and stated that there was such an encounter between Mr Rand and Mr Turale.62 He agreed that the path being taken by Mr Rand was definitely obstructed by Mr Turale, but said that Mr Rand "instead of saying excuse me, Craig, he just pushed his way through and pushed Craig out of the way".63 In conclusion Mr Rogers confirmed that he had spoken to Mr Midson at some length about the incident and had given him a signed statement and agreed that his recollections at that time would have been clearer than at present. In my opinion there is nothing in the evidence tendered by the parties in relation to the July 1999 incident that tends to suggest the respondent's decision to terminate Mr Rand's employment was one taken regardless of the evidence. It is clear that, because of Mr Rand's denial of deliberate action in relation to the first encounter and his belief that there was no second encounter at all, the respondent's decision could only have been one based on a balance of probability having regard to all the evidence. It is true, as Mr Verney pointed out to the witness at the time, that Mr Rogers' evidence contains several inconsistencies. However, in my appreciation, they do not impeach the substantial thrust of his evidence, which was that he firmly believed Mr Rand shoved Mr Turale on two occasions. Since Mr Rogers' evidence is that what he put to this Commission in these proceedings is basically what he told Mr Midson at the time, there is no reason for me to suspect that the respondent considered anything different when it came to its conclusion about Mr Rand's employment future. In my opinion, the respondent was entitled to rely on the evidence of Mr Rogers and, in weighing that against Mr Rand's explanations and denials, come to the conclusion that it did on a balance of probability. Furthermore, in my view, because the nature of Mr Rand's misconduct was the same as that for which he had received the earlier Final Written Warning, the respondent was entitled to take that admonition into account and act upon it. In all the circumstances, I am satisfied that the respondent had a valid reason for terminating Mr Rand's contract of employment. Procedural FairnessArticle 7 of the ILO Convention states that:
No suggestion was put to me in the present case that it was not reasonable for the respondent to provide Mr Rand with an opportunity to defend himself against the allegations made against him. The applicant's contentions went significantly beyond the question of whether he was given an opportunity to defend himself in that they also canvassed broad issues of procedural fairness. As a matter of convenience, I have elected to deal with all those issues, including Article 7 of the ILO Convention, under the broad heading of "Procedural Fairness". The applicant contended that the respondent terminated his employment in circumstances that were unfair. In that regard he alleged that: · The respondent suspended his employment on 22 July 1999 without having made any enquiry at all into the circumstances of the allegations made against him by Mr Turale; · He was unaware of the purpose of the meeting with the respondent on 26 July 1999; · He was never told during the course of the meeting of 26 July 1999 that the proceedings could result in the termination of his employment; · He was not given the benefit of having Mr Turale's allegations concerning the July 1999 incident put to him in writing - they were merely read to him; · He was not given an opportunity to review the respondent's witness statements in relation to the July 1999 incident; · He was not given a real opportunity to have someone with him at the 26 July 1999 meeting who was truly independent; and · The respondent decided to terminate his employment three days before the meeting of 26 July 1999; I deal with each of these allegations below. Was Mr Rand's suspension unfair?: As a statement of fact, it is correct to say that, on 22 July 1999, the respondent's manager (Mr Breward) suspended Mr Rand's employment. It is useful to record Mr Breward's memorandum in its entirety:64
The phrase "in line with our discussions today" suggests that Mr Breward had already informed Mr Rand of the nature of the allegations made against him by Mr Turale. Mr Breward's evidence on this issue was that Mr Rand complained that he had been tripped by Mr Turale.65 Mr Breward said he then spoke to Mr Rogers, Mr Turale and Mr Rand and, as a consequence, decided that "it was pretty obvious that we had a real issue there ..." 66 After talking to the Company's human resource department, Mr Breward said a decision was taken to "stand Mark down on pay so we could investigate exactly what had gone on" because "it was very obvious things were too hot just to leave the two of them there together".67 In his evidence, Mr Rand said he was called into Mr Breward's office where the latter told him that "they had had a complaint from Craig Turale, that I'd apparently pushed him in the back with a cardboard box and I was being suspended until further investigation".68 The respondent's apparent policy of suspending an employee for matters that do not generally warrant suspension attracted my attention. I asked Mr Midson to explain the Company's approach, which he did in the following terms:69
Having regard to the evidence I am satisfied that the respondent, before suspending Mr Rand, told him of the nature of Mr Turale's allegations. I am also satisfied that the respondent was genuine in its perception that there was a need to separate Mr Rand and Mr Turale for the time being and that it was appropriate to do so by suspending Mr Rand - especially since, in my view, the Company had no power to suspend Mr Turale because he was not one of its employees. Furthermore, I believe that in suspending him, the respondent did not prejudge Mr Rand in any way. In that regard, I accept Mr Midson's evidence. In all the circumstances, I find that the respondent did not act unfairly in suspending Mr Rand on normal pay before conducting an investigation into Mr Turale's allegations. Was Mr Rand aware of the purpose of the meeting of 26 July 1999?: Mr Rand's evidence was that, following his suspension, the respondent did not interview or speak to him and he heard nothing further of the Company's investigation prior to his termination.70 In cross-examination, however, Mr Rand said that Mr Midson and Mr Breward came to his house on the morning of 26 July for the purpose of arranging a meeting, which he recollected was set for "about two" that day.71 Mr Midson, in his evidence, said that he and Mr Breward had driven to Mr Rand's home on the 26 July and "we had a brief discussion with Mark there and then organised a time for him to come into the branch".72 Mr Breward's evidence was to the same effect.73 The evidence does not disclose details of all the matters that the parties discussed on that occasion. However, it does show that the discussion included an offer by the respondent for Mr Rand to have someone, an independent witness, present at the meeting.74 In my view, having regard to the evidence, the applicant's assertion that he was unaware of the purpose of the meeting of 26 July 1999 is unsustainable. The notice of suspension informed him that there would be "a further meeting with you to discuss the outcomes of the investigation, once they are complete". I conclude, therefore, that from the time of his suspension Mr Rand was actually aware, or should have been aware, of the purpose of a further meeting, i.e. to discuss the outcome of the Company's investigation into Mr Turale's allegations. In addition to that knowledge, I cannot see how Mr Rand could have failed to grasp the likelihood of the meeting being of a serious nature since, some hours beforehand, he had been invited to nominate an independent witness to accompany him. In the circumstances I find that the applicant was aware, or should have been aware, of the purpose of the meeting of 26 July 1999. What was the state of Mr Rand's awareness regarding the possible outcome of the meeting of 26 July 1999?: Mr Rand's evidence regarding his awareness of possible outcomes of the meeting of 26 July 1999 was that the respondent never told him that the future of his job hinged on that meeting. All he knew about his job, he said, was when he got the letter of termination.75 As to whether or not he told Mr Rand that a possible outcome of the meeting might be the termination of his employment or that his job was on the line, Mr Midson's recollection was that "I don't think I did".76 Mr Breward, on the other hand, had a different recollection. His evidence was that when Mr Rand first came into the interview room, Mr Midson indicated to him that the meeting could result in the termination of his employment.77 Despite vigorous cross-examination, Mr Breward maintained that view, adding only that he believed Mr Midson was mistaken in his recollection.78 Mr Verney sought to encourage me to accept his contention that the oral evidence of witnesses Midson and Breward on this issue showed a clear conflict that was capable of damaging the credibility of one or both witnesses. Mr Cameron, on the other hand, urged me to view the matter as a failure of recollection on Mr Midson's part because of the passage of some months between the relevant events and this hearing. In the circumstances I must weigh the evidence and form a view as to its meaning. In the first place I accept Mr Cameron's assertion that Mr Midson did not say that he never told Mr Rand that his job might be on the line, but only that he did not think he did-in brief, he might or might not have told Mr Rand, but could not recall. Mr Breward, for his part, was very definite in both examination-in-chief and in cross-examination that Mr Midson did tell Mr Rand that the outcome of the meeting could be the termination of his employment. In my view, the tested and unshaken evidence of Mr Breward is to be preferred to the uncertainty of Mr Midson's recollection. That said, it was Mr Rand's evidence in re-direct examination that he was not told of the possible outcome of the meeting. This aspect of Mr Rand's evidence is not an area, in my judgment, in which the tensions that existed between himself and Mr Turale79 has any relevance. In the circumstances, because of the actual conflict between Mr Rand and Mr Breward on this point, I am unable to resolve the issue on the basis of their evidence. However, another approach is available. In relation to the February 1999 incident the evidence is clear that Mr Rand refused to formally acknowledge the Final Written Warning and, indeed, declined to accept its validity.80 Nevertheless, in his further evidence-in-chief, Mr Rand showed that he was in no doubt as to what the warning meant. In reply to a question from Mr Verney as to what occurred at a meeting between himself and Mr Midson a few days after the February 1999 incident, Mr Rand said:81
Mr Midson's evidence on the matter of the Final Written Warning was that the effect or standing of the warning was not dependent upon Mr Rand signing the document. That point, Mr Midson said, was made very clear to Mr Rand.82 The evidence also shows that the respondent has a written "Harassment Free Environment" policy.83 That policy appears in the BOC Gases Handbook, a publication referred to by Mr Cameron in his cross-examination of Mr Rand.84 The relevant part of the policy for present purposes, which Mr Cameron put to Mr Rand, states that:
Mr Rand acknowledged that he had received a copy of and was shown the policy at the time of the February 1999 incident. In respect of the respondent's assertion that he was shown the policy again at the meeting prior to his termination, however, Mr Rand said he could not remember that happening.85 Having regard to the above evidence I am satisfied that, from February 1999, Mr Rand knew or should have known that his job was on the line if there were any more incidents of the same kind and that he also knew or should have known from the respondent's handbook that evidence of harassment, depending upon its severity, could lead to dismissal. In the circumstances I find that, even if the respondent did not specifically tell Mr Rand at the meeting of 26 July 1999 that the outcome of the particular meeting could lead to termination of his employment, he nevertheless knew or should have known that such a result might flow from the meeting. Should the allegations made against Mr Rand have been put to him in writing?: The evidence seems to leave no doubt that the complaint to the respondent was made in writing86 although, as I have already observed, whether it was made by Mr Turale himself or by his employer is not clear.87 Mr Verney's contention, on behalf of Mr Rand, is that the failure of the respondent to provide him with a copy of the written allegations constituted procedural unfairness because it prevented Mr Rand from properly considering his position. Regarding his knowledge of those allegations, Mr Rand's evidence was that he saw nothing in writing,88 but was merely told by Mr Breward that "they had had a complaint from Craig Turale, that I'd apparently pushed him in the back with a cardboard box ..." 89 Mr Rand added that he was not given an opportunity to read the actual written complaint until the day of his termination.90 In an earlier conclusion, I found that "the respondent, before suspending Mr Rand, told him of the nature of Mr Turale's allegations".91 I have also observed that, at the meeting of 26 July 1999, Mr Midson, reading from hand-written notes, informed Mr Rand of Mr Turale's allegations.92 In addition, in my opinion, it is relevant to note that there was no complaint from Mr Rand in the current proceedings or, apparently, at the time of the meeting of 26 July, that what Mr Breward had told him differed in any significant way from the content of the written allegations that he apparently read on the day of the meeting. In the context of procedural fairness, as a general statement, a person must have notice of what he or she is accused. It is not a requirement of procedural fairness, so far as I am aware - and Mr Verney did not refer me to any decided authority in support of his contention - that such notice must be in writing rather than delivered orally. Most likely, I think, circumstances will dictate the approach that should be taken. In the present case, the surrounding circumstances are those of the relations between an employer and an employee in a particular workplace. It is a well-accepted tenet of industrial relations that procedures do not require any particular formality. Rather, the relevant legislative enactments and the principles that flow from the decided cases suggest that procedural requirements should be applied in a practical, commonsense way so as to ensure fairness for all concerned. Having regard to the evidence and the above observations, I am of the view that, even though they were put to him orally, Mr Rand knew of and well understood the nature of the allegations made against him by Mr Turale. Since Mr Rand knew and was aware of those details on 22 July, shortly after they were first made, and the meeting at which they were considered was held on 26 July, it seems to me that he had adequate opportunity to consider his position. Consequently, in the circumstances of this case, I reject the applicant's contention that the employer acted unfairly by not providing Mr Turale's allegations to Mr Rand in a written form. Should the respondent's witness statements have been made available to Mr Rand?: The thrust of Mr Verney's submission in this regard, as I infer it, is that because Mr Rand was not shown the written records of the respondent's interviews with certain witnesses, he was not able to properly defend himself against Mr Turale's allegations. Mr Rand's evidence in cross-examination was that, at the meeting of 26 July 1999, Mr Midson identified the two persons whom the respondent had interviewed in connection with the allegations, i.e. Mr Rogers and Mr Turale.93 He also said that Mr Midson read to him the notes that he had taken of those interviews.94 However, while he conceded that he was given an opportunity to comment on anything in those statements, he was not given an opportunity to review the actual statements, saying that "I wasn't allowed to look at them at all".95 In his evidence, Mr Midson said that the "statements" taken of the interviews with Mr Turale and Mr Rogers comprised only his hand-written notes.96 He said that he subsequently received a written statement from Mr Rogers, but that did not come to hand until after the Company had terminated Mr Rand's employment.97 Mr Midson also confirmed that, while he read the notes to Mr Rand, he did not show them to him98 - an approach he took on the advice of the Company's human resources department.99 Nevertheless, Mr Midson went on to explain his actions in the following terms:100
As a general statement, the notion of procedural fairness in the context of this issue requires that persons in, for example, the position in which Mr Rand found himself, should be given an adequate opportunity to correct or contradict any relevant statement prejudicial to his or her case. It is also the case, again generally speaking, that relevant documents that are in the hands of a person adjudicating a dispute should be disclosed to the parties concerned. Without repeating in detail what I said above regarding written allegations, I again emphasise that, in the practice of industrial relations, procedures do not require any particular formality. Rather, they should be applied in a practical, commonsense way that ensures fairness for all concerned. In regard to the present issue, I take account of the fact that the "statements" were not formally executed documents but merely hand-written notes. Consequently, since they were read to Mr Rand in a question and answer format to which he was invited to respond - he said himself that he was given an opportunity to comment on anything in those "statements" - there was, in my opinion, an adequate opportunity for him to correct or contradict any relevant statement prejudicial to his case and full or sufficient disclosure of the content of relevant documents that the employer held. In the circumstances, I reject the applicant's contention that the employer acted unfairly by not giving Mr Rand an opportunity to view the respondent's witness statements. Did Mr Rand have a real opportunity to have an independent witness with him at the meeting of 26 July 1999?: Regarding this contention I have already mentioned the evidence that shows Mr Midson and Mr Breward visited Mr Rand at his home on the morning of 26 July 1999.101 On that occasion, according to the evidence, the respondent's officers invited Mr Rand to have a witness present at the meeting proposed for later that day.102 Mr Rand's evidence in cross-examination confirmed the visit by Mr Midson and Mr Breward and that they asked him about having a witness present at the meeting.103 Mr Rand, responding to that advice, said he told the officers that "the people that I'd like there I couldn't get hold of because they were working". Mr Midson and Mr Breward then apparently told Mr Rand that he could have one of the Company's employees present as his witness. Mr Rand said he declined that offer,104 a statement that the evidence of witness Midson corroborated.105 When the meeting commenced in the afternoon of 26 July, Mr Rand attended unaccompanied. According to Mr Breward's evidence, he could not recall Mr Rand mentioning, at that time, the matter of having someone with him as a witness.106 In cross-examination, Mr Midson and Mr Breward both acknowledged that, on a previous occasion, Mr Rand had brought in a witness who was independent in the sense that he was from outside the Company's organisation. In that context, Mr Verney questioned both witnesses at some length about the capacity of other employees of the Company to be truly independent in circumstances where, with the possible exception of a Mr Craig Johnson, all of them had been directly involved in the issue that concerned Mr Rand. Mr Midson said that, to his knowledge, the other employees had no personal grief at all with Mr Rand - however, he did acknowledge that, in terms of being independent from the Company, he could hear what Mr Verney was saying. Mr Breward however, although willing to concede the involvement of all employees in Mr Rand's circumstances, was not prepared to agree with Mr Verney that "you'd have rocks in your head if you went to any of those employees to act as someone to sit in" the interview with Mr Rand.107 In my opinion nothing the respondent's officers did or said to Mr Rand regarding the availability to him of an independent witness denied him the right to have such a witness. Mr Rand plainly knew his rights in that regard because, as the evidence shows, he had exercised them on a previous occasion. Mr Rand himself allowed the meeting to proceed when he need not have done. It was open to him to insist that the meeting not be held until he had available the services of an independent witness of his own choosing. That he elected not to do so and allowed the meeting to go ahead with his participation does not suggest, in my view, that the respondent's actions in conducting the meeting amounted to a denial of procedural fairness. In all the circumstances, I reject the applicant's contention that the respondent did not give him a real opportunity to have with him at the meeting of 26 July 1999 an independent witness. Did the respondent decide to terminate Mr Rand's employment three days before the meeting of 26 July 1999?: Exhibit V6 is a document titled "Termination Payment" that the respondent prepared in relation to Mr Rand's termination of employment. In broad terms the document sets out details of Mr Rand's entitlements as to salary, accrued rostered days off, annual leave and leave loading, long service leave and related income tax deductions. There are a number of calendar dates displayed on the face of the document; however, the space set aside for "authorisation" of the document as a whole bears the date "23-07-99". The document was not "authorised" in the sense that, in the space provided, there was some person's initials or signature. Mr Verney submitted in effect that, because the respondent's witnesses could not satisfactorily explain why the document bore the date of 23 July 1999, it is open to the Commission to conclude-and he urged that I should so conclude-that the Company prepared the document before the 26 July 1999, and before Mr Rand knew that his job was at risk, in contemplation of terminating his employment. Mr Midson's evidence on this issue, which developed during cross-examination, commenced with his avowal that, at the conclusion of the meeting of 26 July 1999, no decision had been taken to terminate Mr Rand's employment.108 Mr Midson explained that he had told Mr Rand he would refer the matter to the Company's personnel department for advice and then organise another meeting.109 Later the same day, following the initial meeting, Mr Rand came back to the Company store but, because of an intervening power failure that shut down the respondent's computer system, he did not receive the letter of termination until the following day.110 The letter, which retained the date of 26 July 1999, was hand-delivered to Mr Rand-whether by himself or by Mr Breward, Mr Midson could not recall111-together with the "Termination Payment" attachment (the document that subsequently became Exhibit V6).112 In re-direct examination Mr Midson, prompted by Mr Cameron, agreed that because of the different type fonts used in "filling in" the form, it might be possible the completed document was not even produced on 23 July 1999.113 In that regard, Mr Midson added that, because of the power failure on 26 July, the document could not be produced that day and he did not see it until the day after the meeting with Mr Rand.114 Mr Midson concluded his evidence by confirming that the decision to terminate Mr Rand's employment was taken on 26 July after the meeting with him and following discussions with Mr Breward and telephone conversations with interstate Company officers.115 Mr Breward, in examination-in-chief, recalled that at the end of the meeting of 26 July, having told Mr Rand they wanted to discuss the matter, he and Mr Midson asked him to come back about one to one and a half hours later.116 Mr Breward went on to say that, when Mr Rand returned, they told him he would be terminated with notice, but they would have to send him the paperwork later because it could not be printed due to the power failure.117 After taking the decision to terminate Mr Rand's employment, Mr Breward said he telephoned the Company's human resource department in Melbourne and asked them to prepare a termination letter for him to sign.118 Mr Breward added that, because of the power failure, he did not receive a draft form of the letter-probably by e-mail rather than by post119-until the following day. He said he then signed the letter120 and handed it to Mr Rand.121 In cross-examination, Mr Breward said he remembered the "Termination Payment" document being requested, but could not recall whether he or Mr Midson made the request.122 As to the time of the request, Mr Breward's best recollection was that it was made late in the afternoon of Friday 23 July or on Monday 26 July.123 Mr Breward said he could not explain the presence of the date "23-07-99" on the document or the fact that Mr Rand's long service leave entitlements were also calculated up to that date. The Commission, he said, should not rely on that date as evidence of the date of the document's origin, because "there was no decision made until the next week".124 In re-direct examination Mr Breward confirmed that, the long service leave calculations notwithstanding, the salary component calculations shown on the "Termination Payment" document were worked up to 26 July 1999.125 I begin my review of the evidence with the investigation that followed Mr Rand's suspension. Mr Midson, accompanied by Mr Breward, began interviewing relevant persons on Friday, 23 July 1999.126 Although Mr Breward expressed some hesitancy about when they interviewed Mr Turale127-Mr Midson, however, said it was on the Friday128-I am satisfied on a balance of probability that they completed their task the same day. I draw support for that conclusion from the evidence of Mr Breward, who said that he had unsuccessfully tried to contact Mr Rand "at least five or six times on the Friday" to arrange a meeting with him.129 Ultimately, arrangements for a meeting were not made until Mr Midson and Mr Breward visited Mr Rand at his residence on the morning of Monday 26 July 1999. Turning to the "Termination Payment" document, the date "23-07-99" appears three times; (i) in relation to long service leave, (ii) as a nominated "Term/Retire Date" for Mr Rand and (iii) in the "authorisation" provision, which arguably purports to represent the date of the document as a whole.130 In the circumstances, in my opinion, it is impossible to conclude that use of the date is an error, as Mr Cameron suggested to Mr Breward.131 The date clearly has some kind of relevance. Looking at the evidence on this issue as a whole I am satisfied on a balance of probability that the date "23-07-99" represents the day on which either Mr Midson or Mr Breward requested production of the "Termination Payment" document-although whether in the form of Exhibit V6 or some other form I cannot know. It is not unreasonable to assume, I think, that having completed their investigation on 23 July, Mr Midson and Mr Breward should then desire to interview Mr Rand the same day. The evidence of Mr Breward suggests that is indeed what they tried to do. I also believe that, in preparation for that meeting, one or the other of them requested the "Termination Payment" document, or some form of that document, on that day. Indeed, there is some suggestion in the evidence of Mr Breward to that very effect.132 It is on the basis of just such a finding that Mr Verney would have me conclude that Exhibit V6 evidences a prejudgment of Mr Rand's circumstances by Mr Midson and Mr Breward prior to their having interviewed him. I do not agree with Mr Verney. The evidence suggests to me that either Mr Midson or Mr Breward asked for the document to be prepared so that, on a balance of probability in my opinion, it might be available for use should they decide to terminate Mr Rand's employment after their meeting with him. As it turned out, according to the evidence, they could not meet Mr Rand on the 23 July, but they did meet him on 26 July. In that regard, both Mr Midson and Mr Breward were firm in their evidence that they did not take a decision to terminate Mr Rand's employment until after that meeting.133 The above conclusion leads me to the point raised by Mr Cameron concerning the different type fonts used in the document.134 Exhibit V6, in my opinion, is clearly an amended document. Since there is no evidence that the document was actually in the hands of either Mr Midson or Mr Breward until the day after their meeting with Mr Rand135, I suspect it was first prepared on 23 July in either the Company's Melbourne or Chatswood136 offices and then later amended in part as a consequence of the outcome of the meeting of 26 July. That was, in effect, Mr Cameron's submission, but there is no need for me to make a finding on the point. In all the circumstances, I believe on a balance of probability that the respondent's actions in arranging for production of the "Termination Payment" document on 23 July was nothing more than an act of preparation, its use being dependent upon the outcome of a future event not then determined. Accordingly, in my view, it was not the declaration of a decision, taken before the meeting of 26 July 1999, to terminate Mr Rand's employment. I find accordingly and reject Mr Verney's contentions that (i) in their evidence on this issue, Mr Midson and Mr Breward were either lying or mistaken137 and (ii) that the respondent decided to terminate Mr Rand's employment three days before the meeting of 26 July 1999. Having regard to the discussions and findings that I have recorded above, I conclude and find that, in terms of Article 7 of the ILO Convention, the respondent did not deny Mr Rand an opportunity to defend himself against Mr Turale's allegations and that the termination was not unfair in terms of the procedural fairness issues put to me by Mr Verney. Accordingly, I find that there are no grounds upon which the Commission might properly intervene in the respondent's decision to terminate Mr Rand's employment. In the circumstances, I dismiss the application and so order.
B R Johnson Appearances: Date and Place of Hearing: 1 In his application, Mr Rand nominated 27 July 1999 as the date of termination. However, the better evidence appears to be the letter of termination - Exhibit V1 - that was "effective today" and dated 26 July 1999. |