T10691
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and
Industrial dispute - alleged unfair termination of employment - out of hours behaviour - assault on another employee - whether valid reason connected with employment - whether summary dismissal justified - whether procedural fairness - order issued REASONS FOR DECISION [1] On 31 January 2003, The Australian Workers' Union, Tasmania Branch ("the union"), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Adelaide Mushrooms Nominees Pty Ltd, trading as Tasmanian Mushrooms ("the employer") arising out of the alleged unfair termination of employment of Mr Colin Smith. [2] The matter was first heard on Monday 24 February 2003 at 3.00 pm at the Magistrates Court, Ulverstone. The hearing was adjourned into conference, in an unsuccessful attempt to settle the dispute by conciliation. On that day, Mr I Jones appeared for the union and Mr A Cameron, of the Tasmanian Chamber of Commerce and Industry, appeared for the employer. [3] A further hearing was convened on Monday 17 March 2003. On this occasion Mr R Flanagan appeared on behalf of the union. The matter was not concluded on that day, and the parties subsequently provided written submissions. Both parties, with the consent of the other, requested extra time for the provision of written submissions, with the final submission being received by the Commission on 12 August 2003. BACKGROUND [4] The background to this dispute, as established through the evidence, is as follows: [5] Mr Colin Ross Smith was a production worker employed by Adelaide Mushrooms at their Spreyton plant. He held that position for approximately eight years, until 29 January 2003, when he was summarily dismissed for misconduct. It was not disputed that Mr Smith was a good worker with an excellent attendance and punctuality record. [6] The uncontested evidence was that at 7.10 am on 13 December 2002 Mr Smith assaulted Mr Michael Stevenson, a co-worker (who, at times, acted as relief supervisor), whilst both employees were on their way to work. [7] Mr Stevenson made a written complaint to the employer and also made a complaint to the police. Shortly thereafter Mr Smith went on annual leave for three weeks. The employer did not raise the matter of the assault with him before he went on leave. Nor was the matter raised with him when he returned to work on 6 January 2003. [8] On 20 January 2003 there was a dispute between Mr Smith and management in relation to compulsory overtime. [9] On 21 January 2003 Mr Smith entered a guilty plea to a charge of common assault in the Court of Petty Sessions. He was convicted, but no penalty was imposed provided that he was of good behaviour for twelve months. [10] On 24 January 2003 the employer informed Mr Smith that he was to attend a meeting, but did not tell him what it was to be about. There is conflicting evidence as to whether or not his union representative was informed at a later date of the reason for the meeting. The meeting took place, but Mr Smith was unable to obtain union representation and it was adjourned until 29 January so that his union representative could be present. [11] On 29 January 2003, Mr Smith, together with Mr Ian Jones, a union representative, met with five people: Mr Douglas Schirripa, Company Director, Mr John Felsted, Company Manager, and Mr George Apostolou, Administration Manager, attended by telephone, and Mr Michael Allan, Operations Manager, Tasmanian Mushrooms, and Mr Donald Elliott were there in person. At that meeting Mr Smith was summarily dismissed, the reason given being the assault upon Mr Stephenson on 13 December 2002. Mr Smith was escorted from the premises. [12] The union contends that: there was procedural unfairness in that Mr Smith was not told what the meeting was to be about; that the investigation was seriously flawed because Mr Smith was not interviewed as part of the process; and that the employer did not give Mr Smith sufficient opportunity to respond and put his side of the story. [13] The union contends that where an employer seeks to discipline an employee for behaviour that occurs outside work hours the employer must show a connection between the conduct and the relationship between the employer and the employee, and that no such connection exists in this case. The union is seeking the reinstatement of Mr Smith. [14] The employer contends that the assault was work-related and that the relationship between the employer and the employee has been damaged to such an extent that the employer cannot continue to employ Mr Smith. [15] The questions to be decided, therefore, are: was the out of hours behaviour of the employee relevantly connected to the employment relationship; if so, was the misconduct sufficient to warrant summary dismissal; and, was Mr Smith afforded procedural fairness? THE EVIDENCE [16] Witnesses for the applicant were:
[17] Witnesses for the respondent were:
[18] Documentary evidence included a transcript of the proceedings before a Magistrate on 21 January 2003 at which Mr Smith pleaded guilty to common assault. Relevant extracts from the transcript are:
[19] Also tendered was a copy of a document headed "ADELAIDE MUSHROOMS - REPORTING PROTOCOL - INAPPROPRIATE BEHAVIOUR" which said inter alia:
The Evidence of Colin Ross Smith [20] Mr Smith's evidence was that he had been employed as a labourer at Adelaide Mushrooms for eight years and he had relieved as supervisor at times. The production workers reported to Mr Michael Cane. When Mr Cane was absent Mr Michael Stevenson usually acted as supervisor in his place. Mr Smith said that on a day-to-day basis he had hardly any contact with Mr Stevenson. He said that the only time Mr Stevenson was there was if Mr Stevenson was "bossing". [21] Mr Smith testified that that in the eight years he had been with the company he had received no counselling and no written warnings. He had had only about four days off on sick leave during the entire period and he had never been late. [22] When cross-examined, Mr Smith agreed that he had been called in to the office in June 2001 after making a threat against another employee, Mark Plumbridge. On that occasion he was given a copy of the company's behaviour policy. [23] When shown the company's reporting protocol on inappropriate behaviour, Mr Smith was asked if he recognised the document.3 He said:
[24] He also recalled a meeting on 10 July 2002, at which Mr Allan and Mr Schirripa were present. At that meeting it was said that he had abused Mr Stevenson. He recalled Mr Schirripa saying to him that if there were problems in the workplace to come to the company, and not to take matters into his own hands. [25] He recalled being called into the office in January 2002. Mr Smith said that was as a result of Mark Howes swearing at him and abusing him, to which he had responded:
[26] He agreed that he had again been referred to the company's policy. [27] He denied that he had abused Mr Stevenson in relation to a dispute about the wearing of masks, which had resulted in him being called into the office on 2 December 2002. He agreed that he had been reminded that certain behaviour could lead to a written warning or even termination of employment. [28] Mr Smith said that, previously, he had been quite good mates with Mr Stevenson, and that he had got him the job at Adelaide Mushrooms. After a number of months they had a disagreement over different things:
[29] When cross-examined in relation to the assault that had taken place at Latrobe on 13 December 2002, Mr Smith agreed that he had hit Mr Stevenson a number of times, but not as many as Mr Stevenson claimed.
[30] During re-examination Mr Smith expanded further on the incident:
[31] Mr Smith said that a week before the dismissal the company had called a meeting. He had no idea what that meeting was to be about. He had not asked because he had presumed that it was because he had refused to work overtime on the Saturday. He had objected to being ordered to do so, but in the end he had worked the overtime because he was asked, not ordered. [32] Mr Smith agreed that, at the meeting, he was told there had been an official complaint from Mr Stevenson and that it had been put to him that it was a work-related incident. He agreed that he was told what the allegations were and asked if he wished to make any comment. Mr Jones had spoken on his behalf and had said that the trouble had been brewing for approximately 13 months and that it was not all work-related. He agreed that Mr Schirripa had then asked him if he had hit Mr Stephenson, to which he had replied "Yes". He did not recall Mr Schirripa then asking him if he wished to make further comment. [33] When asked whether the company had asked him any questions at the dismissal meeting, Mr Smith replied:
[34] He said that the meeting would have taken between five and ten minutes. After the dismissal Mr Smith was escorted to the locker room to collect his personal belongings. The Evidence of Ian Charles Jones [35] Mr Jones' evidence was that in his capacity as an organiser with the Australian Workers' Union he was the official responsible for the Adelaide Mushrooms site. [36] Mr Jones said that on the Friday before the dismissal he had been telephoned by Mr Smith regarding union representation at a meeting to be held on that day, which meeting Mr Jones was unable to attend. [37] On the Monday or Tuesday of that same week he had been contacted by Mr Smith when employees had been ordered to work on the coming Saturday. He instructed Mr Smith to inform the company that he could not be ordered to work.
[38] Mr Jones said that he contacted Mr Allan to find out what the meeting was about, and was told that he would have to contact Mr George Apostolou at the Adelaide head office, which he did, but Mr Apostolou told him that he would have to contact Mr Doug Schirripa, who was in Melbourne at the time. Neither Mr Allan nor Mr Apostolou would tell him what the meeting was about, other that to say that it was a serious matter. Mr Jones said that they were "flying blind" when they went to the meeting. [39] When cross-examined, Mr Jones said that he had tried on two occasions to find out what the meeting was to be about, but had been told that Mr Schirripa was the only person who could tell him. [40] Mr Jones' evidence was that, at the meeting, Mr Schirripa said that there had been a complaint relating to an assault by Mr Smith on his way to work on 13 December 2002, and that a thorough investigation had been carried out. Mr Schirripa had said that the company had not been able to act sooner because the matter was before the Magistrates' Court, and they had to wait for the decision to be handed down. Mr Schirripa said that Mr Smith was terminated immediately as it was company policy that fighting would not be condoned. Mr Smith was to get his things and leave the site immediately. [41] Mr Jones had said that he was not happy that Mr Smith had been given virtually no opportunity to respond and had not been part of the investigation. He said that it was a "done deal" as Mr Smith was not asked anything about the incident. The Evidence of Douglas Schirripa [42] Mr Schirripa testified that he was a Company Director and was currently Chairman of Adelaide Mushrooms. [43] He said that he recalled a meeting on 10 July 2002, involving Mr Smith, Mr Allan and himself. It had been said that Mr Smith had called Mr Stevenson a nasty name. Mr Smith had denied that he had done so. He had said to Mr Smith that the company would not tolerate any form of abuse against any other employee. [44] Following the complaint about the assault on 13 December 2003, Mr Schirripa had spoken with Mr Stevenson who told him that the incident was work-related and that before Mr Smith had punched him he had said: "Why are you treating me like that at work?" [45] The evidence of Mr Schirripa was that he knew that Mr Smith would be away for three weeks commencing that Monday [16 December 2002]. He had also ascertained that the matter would be before the Court on 21 January 2003. When he received a copy of the Court proceedings it made it easy for the company to act, knowing the facts and that there had been a conviction. [46] A meeting took place the following week. Mr Schirripa was shown a record of the meeting, which, he said, was transcribed from a tape recording by Mr Apostolou immediately after the meeting. The record reads, inter alia:
[47] Mr Schirripa was asked whether that was a true reflection of the course of the meeting and what was said, to which he replied: "Certainly".12 [48] Mr Schirippa said that he had had no other interview with Mr Stevenson apart from the one in the first couple of days, and there had been no separate discussion with Mr Smith. He had acted upon the court proceedings.
[49] At the termination interview he had not asked Mr Smith why he had assaulted Mr Stevenson, but had asked him if he had anything to add.
[50] He had not asked Mr Smith what the work-related matters were, because:
[51] Mr Schirripa said that he believed he had the right to enforce the policy regarding behaviour outside of the work force, if it was work-related. He said that the incident damaged his employees and damaged the name of the company. The company had to show diligence in protecting all of their employees, which was the action they took. The Evidence of Michael John Allan [52] Mr Allan's evidence was that he is the Operations Manager, Tasmanian Mushrooms, which involves overall supervision of all employees. As the person responsible, there had been occasions when he had to speak to Mr Colin Smith about his conduct and performance. [53] The first of these was on 31 May 2001, and was in relation to the use of threatening language to another employee. No disciplinary action was taken at that time, but Mr Smith was given a copy of the Inappropriate Behaviour Protocol policy. [54] Mr Allen testified that Mr Smith was spoken to again in July 2001, this time in relation to Mr Michael Stevenson. There had been an argument and Mr Smith had asked Mr Stevenson to step down the road, where they would sort out their problems. Again, Mr Allan emphasised the company policies. A diary note of this meeting was tendered as evidence.16 [55] Mr Allan said that there was a further occasion involving Mr Smith abusing Mr Stevenson; this time Mr Allan had overheard the comments. Mr Schirripa spoke to Mr Smith, and it took the form of a general discussion giving Mr Smith the opportunity to air any grievances that he might have had. [56] A further meeting with Mr Smith took place on 31 January 2002. Mr Allan had diary notes of that meeting, which was as a result of Mr Smith threatening another production worker, Mr Mark Howes. Mr Smith had said to him "I'll see how effing loud you are if I take you down the road and punch your head in." Both Mr Smith and Mr Howes were interviewed. Mr Howes did not want the matter to be taken any further. Mr Smith was again advised about the policies and was told that any recurrences would not be tolerated. [57] On 2 December 2002 there was another meeting with Mr Smith in relation to the use of dust masks in the workplace. Mr Stevenson was supervising the production crew, saw that Mr Smith was not wearing his mask and told him to put it on. Mr Smith said that he could not breathe in it and a few words were exchanged. Mr Smith left his work station, without authorisation, and went to visit a doctor who supplied him with a medical certificate which confirmed what he had said about his problems with breathing whilst wearing the mask. [58] Mr Allan said that at the meeting Mr Smith had denied abusing anybody. Mr Smith was advised that abandoning his work station was a serious incident, and that, depending upon the severity of some incidents, it is possible to be dismissed instantly, without going through the three warning process. [59] During cross-examination, Mr Allan was asked why the company's policy regarding written warnings had not been followed. He said:
[60] Mr Allan's evidence was that on 13 December 2002 he had noticed that Mr Stevenson had a "whopping great black eye", that both his eyes were bloodshot and there were marks and swellings on his face. He had asked Mr Stevenson how he had come by those injuries and was told that Mr Stevenson had a "run in" with Colin Smith on his way to work that morning. An official complaint was then made and forwarded to Mr Apostolou at head office. [61] A decision was made to conduct an investigation, and management was made aware that Mr Stevenson was going to press police charges. Mr Allan said that his involvement in the investigation was limited, and consisted of determining what action Mr Stevenson intended taking and the obtaining of a written statement. [62] That statement said:
[63] On 24 January 2003 Mr Allan told Mr Smith that there was to be a meeting. Mr Allan said that he recalled that he advised Mr Smith of that in the morning, telling him that the meeting concerned a serious matter that required his presence [64] Mr Allan was asked:
[65] Mr Allan said that he was aware, through his conversations with Mr Apostolou, that during a telephone call between Mr Apostolou and Mr Jones, Mr Jones had been advised of the content of the scheduled meeting and told that it was in relation to the assault, not the overtime dispute. SUBMISSIONS The Applicant's Submissions [66] The applicant submitted that the termination was not for a valid reason because the circumstances that the employer relied upon to dismiss Mr Smith were not connected with his capacity, performance or conduct as an employee. The uncontested evidence was that Mr Smith assaulted Mr Stevenson in Gilbert Street, Latrobe, not in the workplace. Where an employer seeks to exercise control over the behaviour of an employee, the employer must show a connection between the conduct and the relationship between the employer and employee. [67] The applicant said that the leading case in respect of out of hours conduct is Rose v Telstra Corporation Ltd.20 In that decision Vice President Ross of the Australian Industrial Relations Commission dealt extensively with the issue. The applicant quoted large extracts from this decision, which concerns a violent incident between two Telstra employees out of work hours. Some of those excerpts include:
[68] The applicant submitted that the circumstances of this matter do not fall within the category in which the employer is entitled to sit in judgment. [69] Mr Smith was a diligent worker with a good record of work performance. During his employment he had received counselling for inappropriate conduct on four occasions. No written warnings had been issued to Mr Smith during the course of his employment. [70] Whilst an articulate person may have expressed themselves more precisely than did Mr Smith, the evidence shows that the motivation for the assault was Mr Stevenson's "smirk". The "smirk" and the assault were both removed from the workplace. Mr Smith acknowledged before the Magistrate that it was the wrong thing to do and has been punished by the Court. Given that Mr Smith was responding to Mr Stevenson's demeanour in circumstances removed from the workplace, the employer is not entitled to sit in judgment. [71] Whilst Mr Smith's actions were an error of judgment, that action and the circumstances in which they occurred cannot be said to fit within the criteria identified by Vice President Ross. [72] The applicant submitted that the termination of employment was unfair because: the employer is not entitled to sit in judgment; the employee had never received any written warnings; and there was no valid reason for the termination of employment. The employer should have considered the general history of the employee, which demonstrates that he has been competent, diligent and reliable. The failure of the employer to take this into account was an act of unfairness on the employer's part. [73] Accordingly, the union is seeking Mr Smith's reinstatement, without loss of wages. The Respondent's Submission [74] The respondent submitted that the clearly established facts were that Mr Smith physically assaulted his workplace supervisor, Mr Stevenson. Mr Smith pleaded guilty to the charge of common assault. Mr Stevenson reported the incident to the manager. The assault was work-related. [75] The applicant relies on the decision of VP Ross in Rose v Telstra, but it is the respondent's submission that the conduct of Mr Smith, in seriously assaulting a workplace supervisor, satisfied the test that:
[76] Wherever the assault took place, an employer cannot continue to employ a person who thinks he is able to assault another employee, especially a supervisor, because of things that have been going on at work, and who sees it as the best way of getting even. This strikes at the very basis of the employment relationship. [77] In the respondent's submission, the employer has a legal obligation to provide a safe workplace for its employees. The safety of Mr Stevenson was jeopardised whilst ever Mr Smith remained in the employment of the employer. [78] In Rose v Telstra reference is made to the decision of Finn J, in McManus v Scott-Charlton21 where his Honour stated:
[79] In that case, at issue was: "whether conduct engaged in otherwise than at work can be of legitimate interest to the employer"? [80] The respondent quoted extensively from that decision, including the following:
[81] The respondent said that, although the matter in consideration in that case was sexual harassment, the principles are the same. Both matters referred to illegal activities outside of the workplace that had a serious effect at the workplace, and in such a circumstance the employer can rightly involve itself in the process and make decisions affecting the employment of the perpetrator. [82] The view that the employer has a right to involve itself was endorsed in Andrew Coward v Gunns Veneer Pty Ltd22. In that matter a car aerial was stolen from a fellow employee's car that was parked away from the workplace. Murphy JR said that "there was a significant connection between the incident and the applicant's employment." That was confirmed on appeal, where Heerey J cited the passage in the judgement of Finn J referred to above, and added:
[83] The respondent submitted that the same approach is appropriate in the present matter. It is commonsense that assaulting a fellow employee, especially where the assailant has admitted it was work related, is highly disruptive and is conduct that the employer is entitled to treat very seriously, as Adelaide Mushrooms did. [84] The evidence shows that Mr Smith was aware that certain behaviour and threats could lead to instant dismissal. He may not have received written warnings, but he was aware of the company's policies. There was a history of meetings surrounding his aggressive nature at the workplace. [85] In the respondent's submission, the employer has provided procedural fairness in that: Mr Smith was made fully aware of the reasons for the meeting; the meeting was delayed to allow him the opportunity of having proper representation; the employer allowed the criminal proceedings to conclude before acting against the employee; the employee had ample opportunity to address the issues raised by the employer; and the outcome was not unfair or disproportionate in the circumstances. [86] The summary termination of Mr Smith's employment was justified and appropriate. Whilst the Tasmanian legislation does not codify the circumstances which can justify summary dismissal, guidance can be taken from the Workplace Relations Act, where assault is clearly spelt out as conduct that is serious misconduct sufficient to exempt the employer from giving notice of termination, and, in the respondent's submission, that accurately reflects community standards. [87] If the Commission were to find that there was a lack of procedural fairness, then, the respondent submitted, that should not interfere with the outcome of termination and no remedy is available to the employee. [88] The respondent said that even if the procedures adopted by the employer were not fair and reasonable, in the light of the seriousness of the offence, the decision to terminate would not have been altered by anything that the employee may have put. In support of this, the respondent cited A Dickenson v Woolworths Safeway Pty Ltd a decision of the Full Bench of the Employment Relations Commission of Victoria.23, FINDINGS Was the out of hours conduct relevantly connected to Mr Smith's employment and was it of such a nature as to invoke disciplinary action? [89] The applicant submitted that the assault was not work-related, but, rather, the result of Mr Stevenson smirking at Mr Smith out of hours and that Mr Smith was simply responding to Mr Stevenson's demeanour in circumstances removed from the workplace. [90] The union's submission completely ignores the evidence of the circumstances leading up to the assault. [91] The problems stemmed from Mr Smith's reactions to Mr Stevenson's supervisory style, when Mr Stevenson was, in Mr Smith's words, "bossing". "He sort of...became a boss and a company man and, you know, put the boots in here and there." [92] It is clear that the assault arose out of events that had occurred in the workplace. Mr Smith's own evidence before the Commission was that just prior to the assault he had said to Mr Stevenson "What's this about you saying that I abused you when I asked you about the masks?" Mr Smith's evidence was that things had been "building up" which led to him assaulting Mr Stevenson. "You know, he's always smirking at me work as if to say, you know, well, you can't do nothing to me here, I'm at work. So the day I just went up to him, I said what I said and said, "You want to smirk at me now?" And he sort of did, so I let him have one." Mr Smith's evidence before the Magistrate was that the assault was as a the result of a "..long story...there's things that have been going on at work..". [93] The problems between Mr Stevenson and Mr Smith were ongoing, with Mr Stevenson first reporting an argument and threats in July 2001. In December 2002 there was a dispute between Mr Smith and Mr Stevenson regarding the wearing of masks. It is this incident that Mr Smith referred to at the time of the assault on 13 December 2002. [94] I have no hesitation in finding that the assault was as a result of events that had occurred in the workplace. However, that, by itself, is not sufficient to give the employer the right to sit in judgment of the out of hours conduct. The question is: was the conduct of such a nature as to entitle the employer to take disciplinary action? [95] The test, as described in Rose v Telstra is: whether the employee's behaviour outside of working hours can be said to breach an express or implied term of the contract of employment? Further, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. [96] Whilst there is no doubt, as stated in Rose v Telstra, that an employer does not have an unfettered right to sit in judgment on the out of work behaviour of their employees and that the circumstances in which an employee's employment may be validly terminated because of their conduct outside work hours are limited, in this instance the conduct was relevantly connected with work and was of such gravity as to entitle the employer to discipline the employee. [97] Mr Stevenson had a supervisory style that did not sit well with Mr Smith, who appears to be an unsophisticated man with a strong work ethic and strong views about the way employees should be treated. Unfortunately, the fact that Mr Smith saw assault upon Mr Stevenson as "my best way of getting even" strikes at the very heart of the employment relationship. Mr Smith has a duty to obey his supervisor's directions, galling though that might be if done in such a way as to "put the boots in". An employee who exacts vengeance upon a supervisor out of hours is acting in a manner that is incompatible with his duties as an employee. [98] The evidence shows that Mr Smith's method of dealing with workplace tensions was to threaten to "sort it out" with his fists. "If he wants to shoot his mouth off we can take it elsewhere" "Would you like to smirk at me now?" "I'll see how effing loud you are if I take you down the road and punch your head in." Mr Smith apparently was of the mistaken view that as long as an event was removed from the workplace he could not be disciplined for it. He failed to understand that is simply a matter of geography and it does not alter the consequences if the conduct has a relevant connection with the employment. [99] I find that the employer was entitled to discipline Mr Smith for the out of hours conduct and that Mr Smith's misconduct was sufficiently serious to justify the termination of his employment. Were the circumstances such as to justify summary dismissal? [100] On the face of it, assault upon another employee is misconduct sufficient to warrant summary dismissal. However, when determining whether summary dismissal is justified, the act that warrants the dismissal cannot be looked at in isolation from the events that surround it. [101] In this case, there appears to have been some provocation. Mr Smith's evidence was that on one occasion he saw Mr Stevenson writing on a piece of paper and he then looked over and said: "You won't be here much longer, Smith." It was obvious during the hearing that Mr Smith is not a man who is able to express himself well. He described Mr Stevenson's demeanour at work as "the way he walks around and smirks at me" "You know he's always smirking at me at work". A more articulate person may have found other words to describe what seems to have been an attempt by Mr Stevenson to goad Mr Smith. [102] The employer should have considered all of the circumstances before making the decision to instantly dismiss. Issues such as provocation, length of service and any other relevant factors should have been taken into account. They were not. However, given the gravity of the offence, summary dismissal may still have been justified, but for the following circumstances. [103] The assault took place on 13 December 2002. Mr Smith was "instantly" dismissed on 29 January 2003, almost seven weeks later. For three weeks of that time he was on annual leave. The employer was aware of the assault on 13 December 2002, yet not one word was said about it to Mr Smith until the time of the termination interview seven weeks later. Absolutely no action was taken to discipline Mr Smith at the time. The evidence shows that, at the termination interview (when it was finally conducted), the employer instantly dismissed Mr Smith when he agreed that he had hit Mr Stevenson. If the employer intended to invoke summary dismissal, Mr Smith could have and should have been asked that question when the employer was informed of the assault. Yet the employer continued Mr Smith's employment, took no action whatsoever against him for almost seven weeks, and did not even alert Mr Smith to the fact that his employment could be terminated as a result of the incident. [104] This is not to say that the employer cannot retain the right to instant dismissal pending a proper investigation. That was not the case in this instance. There was no investigation. Following the receipt of the complaint from Mr Stevenson, the employer decided to await the outcome of the Court case and said and did nothing else. [105] A more proper course of action would have been for the employer, once having been made aware of the complaint, to immediately investigate it, including interviewing Mr Smith, and then to have taken action accordingly. If the investigation had shown that the outcome of the Court hearing was a relevant consideration, then the employer should have either stood Mr Smith down, or continued with his employment on notice that if the finding were that he was guilty, then he could be dismissed at that time. None of those things happened, Mr Smith was not even aware that the termination of his employment was being considered. [106] If an employee is guilty of serious misconduct warranting instant dismissal, and the employer, upon becoming aware of it, does not act immediately to dismiss the employee, then the employer has waived the right to instantly dismiss the employee [107] I find that, in the circumstances, summary dismissal, at the time it was invoked, was not appropriate and that Mr Smith should receive a payment in lieu of notice. Was Mr Smith afforded procedural fairness? [108] The applicant submitted that Mr Smith was denied procedural fairness because he was not told prior to the meeting at which he was dismissed what it was to be about. Mr Smith's evidence is that he was not told, and Mr Jones' evidence was that neither he nor Mr Smith was told. The only suggestion that he was told was hearsay evidence given by Mr Allan, where he said that Mr Apostolou had told Mr Jones that the meeting was about the assault, not the overtime dispute. I accept the evidence of Mr Smith and Mr Jones in this respect. Mr Allan's own evidence was that he was directly asked if the meeting were in relation to the overtime dispute but he refused to say and referred the query to Mr Apostolou. Mr Apostolou in turn referred Mr Jones to Mr Schirripa, which seems to contradict the evidence of Mr Allan that Mr Apostolou had told Mr Jones what the meeting was to be about. I accept that neither Mr Jones nor Mr Smith was told what the meeting was to be about in advance. [109] Mr Smith, or his representative, should have been advised of the reason for the meeting. It was not fair that they were not. Mr Smith attended a meeting on 24 January, which was later adjourned because his union representative was not present. It is very difficult to understand why the company did not tell him, at that time, what the reason for the meeting was. Natural justice requires that a person be told what the allegations against them are, so that they have the opportunity to properly prepare and present their case. [110] The applicant also submitted that the investigation into the events surrounding the dismissal was flawed, because Mr Smith had not been interviewed as part of that process. I agree. The company had seven weeks in which to interview Mr Smith. Not only did they not do so, Mr Smith was not even aware that there was an investigation. Mr Allan's evidence was that management decided to conduct an investigation, but it seems that the "investigation" was confined to asking Mr Stevenson to provide a written complaint and determining what action he intended to take. Once it was revealed that he intended making a complaint to the police, the company made no further enquiries and simply waited for the outcome of the Court proceedings. [111] I find that the investigation was inadequate. The fact that the investigation was inadequate, and did not include an interview with Mr Smith, was unfair. In addition, it did not comply with the company's policy, which says that an investigation should be carried out and that extremely detailed documentation of the incident is required. [112] The fact that the employer has failed to follow its own discipline policies is a further failure to apply procedural fairness. The company's "Reporting Protocol - Inappropriate Behaviour" says: "Physical attack by one person on another requires instant dismissal". The same document says: "When a person is found to have used threatening language it requires an official written warning...This warning will be a first and final warning." [113] The evidence was that Mr Smith was counselled for making threats, but he was never issued with a written warning, or anything that he understood to be a verbal warning, let alone a first and final written warning. [114] On the following dates Mr Smith was counselled about using threatening language against other employees: 31 May 2001, June 2001, 10 July 2001, 31 January 2002 and 2 December 2002. Throughout all of this, and despite the policy, Mr Smith was never issued with a written warning [115] In the minutes of the dismissal meeting24 Mr Schirripa is recorded as having said "The company has a very firm policy which is ...the protocol and inappropriate behaviour policy." If it is a very firm policy, why was it not followed in relation to the use of threatening language? A discipline policy sets out what would happen in particular circumstances, so that an employee is clearly aware of what the consequences of their actions will be. The employer relied upon the policy at the time of the dismissal, citing that part of the policy that provides for instant dismissal for physical abuse, yet had not followed it in any of the previous altercations between Mr Smith and Mr Stevenson. [116] I have doubts as to whether Mr Smith was even aware of the contents of the policy. There is no evidence that he ever had the contents described to him. He was referred to it, or copies were given to him. Mr Smith's evidence, when shown the policy and asked if he recognised it, was: "I can't say, is this just one of the forms at work, are they?"... "Yes, well, I'm not one for reading but I probably - I know what they're there for but I don't sort of read much." [117] Mr Jones said that the decision to terminate the employment was a "done deal". Mr Smith was not asked anything about the incident and was given virtually no opportunity to respond. The evidence supports this. [118] The transcript of the meeting reveals the sequence of events and shows that Mr Smith was first told there had been a written complaint of assault and that he had been found guilty of that offence, and then he was asked to comment. Mr Jones attempted to place the incident in the context of the last thirteen months, to which Mr Schirripa responded that he was not interested, he was only interested in the one specific issue, which was the assault and whether Mr Smith had done it. Mr Smith agreed that he had hit Mr Stevenson, following which Mr Schirripa read out the policy regarding physical assault and then informed Mr Smith that he was instantly dismissed and was to leave the premises immediately. After he was told he was dismissed, Mr Smith was again asked if he would like to make any comment. [119] The witness evidence confirms the events as just described, with some small variations as to the sequence. [120] Mr Schirripa's evidence was that, once he had received a copy of the Court proceedings, it had made it easy for the company to act, knowing the facts and that there had been a conviction. [121] I have concluded from the evidence that the company had made the decision to terminate Mr Smith's employment before the interview, and that Mr Smith was given little or no opportunity to influence the outcome. This was unfair to Mr Smith. [122] There is no evidence to show that the company took into account any circumstances apart from the fact of the assault. They were not prepared to listen to anything in relation to the background to the assault, and they did not take into consideration Mr Smith's eight years of service or his record as a diligent and reliable worker. [123] I find that there has been substantial procedural unfairness. There was an inadequate investigation; the employer failed to interview Mr Smith either as part of the investigation or prior to making the decision to terminate; the employer (despite ample opportunity to do so) failed, indeed, refused on at least one occasion, to inform the employee what the discipline interview was to be about; the employer made the decision to terminate in advance of the meeting at which the termination took place and therefore before the employee had an opportunity to respond; the employer did not follow the discipline policy consistently; and they did not take any other circumstances into account. [124] The respondent argued that in the light of the seriousness of the offence, a lack of procedural fairness should not interfere with the outcome of termination and that no remedy is available to the employee. Anything that the employee may have put would not have altered the decision that the employer made. [125] It is in cases such as this one where the alleged offence is very serious, and the consequences therefore the most severe, that procedural fairness assumes the most importance. The seriousness of the offence is not a reason for dispensing with procedural fairness. [126] The failure to afford procedural fairness renders the dismissal unfair. [127] I find that the dismissal was for a valid reason, but that summary dismissal was not appropriate in the circumstances and that the dismissal was unfair because of the substantial procedural unfairness. I now turn to the question of remedy. REMEDY [128] Section 30 of the Act says:
[129] I find that reinstatement is impracticable, given the nature of the offence, which involved a serious assault upon another employee. There is force to the respondent's submission that the employer has an obligation to provide a safe workplace and Mr Smith's conduct may well cause some employees to feel apprehensive were he to be reinstated or re-employed. I agree that no citation of authority is necessary to confirm the commonsense conclusion that assault upon a fellow employee would be highly disruptive of morale in the workplace. Given that, neither reinstatement not re-employment are practicable. [130] 30(11) provides:
(c) any other matter the Commission considers relevant" [131] I have found that, in the circumstances, Mr Smith should have been given notice of the termination of his employment. The Tasmanian Mushrooms Agreement provides for four weeks' notice for employees with more than five years' service. Mr Smith had approximately eight years of service, therefore he should be paid four weeks' wages in lieu of notice. [132] I consider that the four weeks' notice payment takes into account the length of the employee's service with the employer. The other relevant matters that I have considered are the seriousness of the misconduct and the significant denial of procedural fairness. The seriousness of the offence is the reason the employee is not being reinstated or re-employed. I have decided to award a further two week's compensation for the employer's failure to afford procedural fairness. This makes a total of six weeks wages. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T10691 of 2003 that Adelaide Mushrooms Nominees trading as Tasmanian Mushrooms of 81-91 Panalatinga Road, Woodcroft, South Australia 5162 pay to Mr Colin Smith of 9 Henry Street, Latrobe, Tasmania 7307 the sum of Two Thousand Seven Hundred and Sixty Six Dollars and Sixty Cents, by close of business 26 September 2003.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit R4 |