Biting Colleague Justifies Dismissal: Federal Court Decision

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - UNLAWFUL TERMINATION - CONDUCT AND PERFORMANCE - SERIOUS MISCONDUCT - VALID REASON - OPPORTUNITY TO RESPOND - employee dismissed for biting another employee. Workplace Relations Act 1996 (Cth) ss 170EA Workplace Relations & Other Legislation Amendment Act 1996 (Cth) Sch 16.

[NAME_1] v [NAME_2] (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996)

[NAME_3] v [NAME_4] (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996)

[COMPANY_6] v [NAME_7] (unreported, Industrial Relations Court of Australia, Madgwick J, 30 June 1997)

[NAME_9]. v The Commonwealth of Australia (1996) 138 ALR 129

[NAME_10] v [NAME_11] (1995) 64 IR 28; affirmed on appeal (unreported, Industrial Relations Court of Australia, Wilcox CJ, North and Madgwick JJ, 4 April 1996)

[NAME_12] v [NAME_13]

VI 1200 of 1997

BEFORE: MURPHY JR

PLACE: MELBOURNE

DATE: 20 AUGUST 1997.

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 1200 of 1997 ) GENERAL DIVISION )

BETWEEN: [NAME_14]

Applicant

AND: [NAME_13]

Respondent

JUDGE: MURPHY JR PLACE: MELBOURNE DATED: 20 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: [NAME_14]

Applicant

AND: [NAME_13]

Respondent

JUDGE: MURPHY JR PLACE: MELBOURNE DATED: 20 AUGUST 1997

REASONS FOR

JUDGMENT Introduction. This is an application under s 170EA of the Workplace Relations Act 1996 (Cth) (formerly the Industrial Relations Act 1988 (Cth)) ("the Act"). It comes before the Court under the transitional provisions of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). On 5 December 1996 the applicant was dismissed from his position as a Banbury operator at the respondent's Somerton plant. He seeks reinstatement. The respondent alleged that it had a valid reason to dismiss the applicant because he was guilty of misconduct, namely biting another employee, [NAME_16]. It was the applicant's case that he had not bitten [NAME_16], and that he had been dismissed as a result of an unfair and arbitrary application of the respondent's "no fighting in the workplace" policy. The respondent's "no fighting" policy. [NAME_19], the business centre manager of the respondent, gave evidence that the respondent has a policy that there is to be no fighting in the workplace. It is reinforced in various documents available to employees: see Exhibits R1 and R10. If there is an incident of physical violence between employees and the respondent is able to identify the aggressor, then that employee is dismissed. A key factor in determining which party is at fault is the presence of witnesses. Representatives of the National Union of Workers ("the union") are often involved in workplace incidents. On some occasions an incident may occur and the shop stewards intervene and discuss the matter with the participants. When the matter is brought to the attention of management, and neither party wishes to take the matter further, an incident becomes a "non incident". This did not occur here. The competing accounts of the incident. The applicant was a health and safety representative at the respondent's plant. On the morning of 4 December 1996 he attended a meeting at 7.00 am. He normally works on a Banbury machine, and is assisted by a batch builder, [NAME_16]. The two had been working on the same machine for about twelve months. Although the applicant had more experience, the skills of the two individuals were essentially interchangeable and when the applicant was not present [NAME_16] operated the machine. [NAME_16] was operating the machine that morning when the applicant returned from his meeting at approximately 9.00 am. [NAME_16] was being assisted by another batch builder, [NAME_21], who, in the absence of the applicant, had been assigned to assist him by the supervisor, [NAME_24]. The machine's output is forwarded to another section of the plant. In response to quality testing of the output, adjustments are often made to the machine's controls. On that morning [NAME_29] had advised [NAME_16] to decrease the temperature to ensure that the product was being produced at the appropriate quality. [NAME_16]'s version of the incident commences when the applicant returned to the machine after the meeting. The applicant, without discussing the performance of the machine, proceeded to decrease the ram pressure and increase the temperature. [NAME_16] asked him what he was doing. He received no response. The two were in the confined space close to the control panel. [NAME_16] then pushed the applicant with his left hand. In evidence he said the two struggled in the sense of him trying to push the applicant out of the way to reset the controls. The applicant then "bit (him) on the nose". [NAME_16] said he felt a very sharp pain. The applicant's version was that he returned from the meeting and proceeded to check that the machine was set up correctly. He noticed that the pressure was too high and the temperature was too low, and adjusted the controls. He said at that point [NAME_16] started abusing him. The applicant referred to an incident the day before when the rubber had been cold. [NAME_16] then pushed him with two hands. He told [NAME_16] to go and have a cup of coffee. The applicant moved away. [NAME_16] took a few steps, came back and grabbed the applicant by the neck and put his head against his. He then did it again. The applicant put his head back so it would not get hit. [NAME_16]'s head then hit his mouth. [NAME_16] then screamed "why did you bite me?" The applicant also described what had happened as [NAME_16] head-butting him twice. He denied biting [NAME_16]. In a statement the same day (Exhibit R8) the applicant said that [NAME_16] "put his face right up against mine then repeated and he contacted my teeth". [NAME_30]'s version was that the applicant came back from his meeting and proceeded to set up the machine differently. [NAME_16] asked the applicant what he was doing and pushed the applicant aside to set it up the way it was. The applicant bit [NAME_16] and then [NAME_16] grabbed him around the neck to push him away. In cross-examination he was unable to recall whether the applicant was grabbed with one or two hands. [NAME_30] also gave conflicting versions as to whether the grabbing by the neck occurred before or after he observed the bite. [NAME_19] gave evidence that [NAME_30] told him that after the applicant "bit, that's when ([NAME_16]) grabbed him by the throat and moved away". Events following the incident. After the incident [NAME_16] went to the supervisor, [NAME_29]. He told him that the applicant had bitten him. [NAME_29] sent him to the medical centre. When he attended at the centre he told the nurse, [NAME_31], that he had been bitten. He was upset and distressed. On examination red marks were observed on the righthand side of his nose and there were two small abrasions near the opening of the right nostril (see exhibit R11). After the incident the applicant approached [NAME_19] and told him that he was in trouble. The applicant appeared upset and said he had been in a fight with [NAME_16]. [NAME_19] told him to calm down and then arranged for the respondent's internal auditor, [NAME_33], to obtain statements from the participants. [NAME_33] then proceeded to take statements from the applicant, [NAME_16] and [NAME_30]. [NAME_16] was making his statement the senior union shop steward, [NAME_35], became involved and asked to see him and [NAME_30]. Both attended the union office where a number of shop stewards were present. [NAME_16] completed his statement (Exhibit R7). When [NAME_30] gave his statement to [NAME_33], [NAME_35] and another shop steward, [NAME_38], were present, as was [NAME_19]. [NAME_30] told [NAME_33] what had happened, and he wrote it down. In cross-examination [NAME_30], who does not write English, said that what was written down and read out was what he had told [NAME_33]. [NAME_19] said that questions were asked by the participants during the taking of [NAME_30]'s statement. After these statements were taken both the applicant and [NAME_16] were sent home. Later that afternoon an organiser from the union, [NAME_40], arrived at the plant and met with the shop stewards, the applicant, [NAME_16] and [NAME_30]. She had copies of the statements. After this she had a meeting with [NAME_19]. She was accompanied by the shop stewards. At that meeting [NAME_43] put to [NAME_19] the proposition that the events had not occurred in the way that [NAME_30] had previously indicated. She said that it: "was not actually a bite but unintentional contact was made". Notes of the meeting (Exhibit R9) record that she suggested that there was no aggressor and that warnings be issued to both parties. [NAME_19] stated his view that from the statements there appeared only one aggressor - the applicant. [NAME_43] cast doubt on the version previously given by [NAME_30], [NAME_19] decided to clarify matters with him. [NAME_19], with [NAME_29] present, spoke again to [NAME_30]. [NAME_19] demonstrated to [NAME_30] what a bite looks like. He said: "I shirtfronted [NAME_26] and I lunged at his face". [NAME_30] agreed this was what happened. [NAME_19] wrote a note of this conversation stating: "previous statement correct - [NAME_15] bit Richard" (Exhibit R5). [NAME_19] spoke to [NAME_38]. [NAME_38] agreed that the statement of [NAME_30] contained what he said at the meeting with [NAME_33]. [NAME_38] said that he didn't know why [NAME_43] had gone the way she had. [NAME_19] also had a similar discussion with [NAME_35]. [NAME_19] then reflected on the events of the day with the acting Plant Manager, [NAME_44]. He reached the conclusion that the events pointed quite clearly that the applicant had been the aggressor. He took the decision that the applicant be dismissed. His evidence was: "[i]t was a view that the bite was a very serious thing. The person was injured, a bite, and its my responsibility to make sure that people can be working in a very safe environment. In this case it was a bite." The next morning he attended at the applicant's home and advised him that he was terminated. The applicant had asked whether [NAME_16] had also been dismissed. A few days later [NAME_19] had a meeting with an elected official from the union, [NAME_46]. [NAME_30] was present. At that meeting [NAME_30] said that he: "didn't see the bites". He further told [NAME_19] that he saw [NAME_16] grab the applicant by the throat. At that time industrial action had occurred. [NAME_19] declined to reconsider the matter. The issues to be resolved. [ADDRESS] heard evidence from [NAME_19], [NAME_16], [NAME_30], the applicant, [NAME_33], [NAME_24], [NAME_31], and shop stewards [NAME_49], [NAME_36], [NAME_51] and [NAME_54]. The evidence presented at the trial was directed to two different forensic questions by each of the parties. The respondent led evidence to support its case that it had validly concluded on the material before it that the applicant was the aggressor in the incident, and that pursuant to its policy in relation to fighting in the workplace, it was entitled to dismiss him. The applicant's case was directed to the question whether the respondent could or should have come to the conclusion that the applicant was the aggressor. The primary thrust of the applicant's case was that the applicant had not been the aggressor, and in particular did not bite [NAME_16]. There was no basis for the respondent to dismiss him. At its highest the respondent believed that the applicant was the aggressor. It was submitted that this was not sufficient to discharge the onus of proof imposed on it. The second basis of the applicant's case was that the respondent had not properly investigated the matter. It thus could not reasonably come to the conclusion that the applicant had been the aggressor and terminate him. Rather, the applicant submitted that this incident had sprung from [NAME_16] taking the matter to management via the visit to the medical centre. Then management had to act, and contrary to what had happened on other occasions, the incident was not the subject of a negotiated resolution that involved both parties remaining employed. The applicant relied on evidence from the shop stewards [NAME_49], [NAME_36], [NAME_53], and [NAME_56] that [NAME_30] had, in a meeting in their presence, accused the applicant of starting the fight. These witnesses also corroborated the applicant's version that he had a red mark on his neck that was a result of [NAME_16]'s grabbing him. The respondent's witnesses, and in particular [NAME_19], denied that they observed any red mark on the applicant's neck or had one brought to their attention. Further, [NAME_19] and [NAME_29] confirmed with [NAME_30] that in fact the applicant had bitten [NAME_16]. This formed the basis of the conclusion that the applicant was the aggressor and thus was to be terminated. Each party was relying on prior statements, consistent and inconsistent, as the basis to attack the credit of the respective witnesses. It is axiomatic that contemporaneous statement have strong probative weight. Events are likely to be fresh in the participant's mind. [NAME_30], who was a very confused witness, conceded this. His account in Court was so contradictory that I place little weight on what he said. What I do accept, however, is the credible evidence of [NAME_50] [NAME_20] and [NAME_28] as to [NAME_30]'s confirmation to them on the day of the account that [NAME_33] took from him. [NAME_16]'s statement is that he pushed the applicant. He further maintained that the applicant bit him. [NAME_30] in his statement had [NAME_16] also pushing the applicant and the applicant biting him. The applicant's version was that [NAME_16] had put his face up close to him twice and that [NAME_16]'s head had contacted his teeth. In a statement written by his wife accompanying his application, but signed by him, the applicant said that "[NAME_16] headbutted (me) repeatedly". The applicant said that he told [NAME_33] that [NAME_16] had headbutted him but [NAME_33] had said the description used sounded better. It is a matter of surprise that if the applicant did assert to [NAME_33] that [NAME_16] had headbutted him that this was not recorded. Similar considerations apply to the applicant's assertion that he had a red mark on his throat as a result of [NAME_16] grabbing him. It was not recorded by [NAME_33], and [NAME_19] denied that it was brought to his attention. It is a matter of surprise that if it did feature in the applicant's account of his innocence in the exchange that it was not brought forcefully to the attention of [NAME_19] by [NAME_43]. I am satisfied that there was no red mark on the applicant's neck. [ADDRESS] the applicant demonstrated how the incident occurred. He said that he had his head back with his mouth open and as [NAME_16] attempted to headbutt him for a second time, [NAME_16]'s nose came into contact with the applicant's open mouth. The account was unconvincing. In his evidence [NAME_16] denied that he had headbutted the applicant. He further denied grabbing the applicant by the throat. He said that he may have pushed him in the neck or chest area. Respondent's version preferred. The respondent's self-imposed policy, as articulated by [NAME_19], requires it to satisfy the Court on the balance of probabilities that the applicant was the aggressor in this incident. That requires it, in the context of what occurred between the two protagonists, to prove that it was more likely than not that the applicant bit [NAME_16]. As the allegation is serious the evidence must allow for comfortable satisfaction that the allegation is made out. The two protagonists each respectively denied the central allegation that he was the aggressor. [NAME_30] was the only eye witness. The observations of the nurse, [NAME_31], were that the injury to [NAME_16]'s nose was consistent with a bite. Resolution of the matter requires an assessment of the credibility of the witnesses and a conclusion as to the inherent likelihood of the competing accounts, with the onus always remaining on the respondent to prove its valid reason. In determining the more probable version of what happened I give considerable weight to the evidence of both [NAME_19] and [NAME_29]. [NAME_30], in their presence, confirmed that the applicant had bitten [NAME_16]. [NAME_30] had earlier given this version to [NAME_33] in the presence of [NAME_35] and [NAME_38]. [NAME_35] and [NAME_38] had been present when [NAME_30] had allegedly recanted that version. They did not chose to corroborate his alleged recantation of that version when they had conversations with [NAME_19] later that day. On the contrary, the unchallenged evidence of [NAME_19] was that they expressed surprise as to the tack that [NAME_43] took in the meeting with [NAME_19]. A clear inference from their conduct on the day, unchallenged in evidence, was that they accepted the conclusion reached by [NAME_19] that on the account of [NAME_30], the applicant had bitten [NAME_16] and thus was the aggressor in the incident. The credit of both [NAME_16] and the applicant suffered in cross-examination. The applicant suffered greater damage. [NAME_16] has always maintained that he was bitten. It is an accusation that is not lightly made, but it was made at the time. He was supported by [NAME_30], who corroborated his contemporaneous assertion. The applicant has given inconsistent accounts of what happened. The account written on his instructions by his wife is much more elaborate than what is recorded by [NAME_33]. He was forced to retreat from it in cross-examination. Further, his explanation in Court was unconvincing. It amounted to [NAME_16], in effect, jamming his nose into the open mouth of the applicant while in the act of headbutting him a second time. This account is inherently improbable and at variance with the comment made by [NAME_43] to [NAME_19] that "it was not actually a bite but unintentional contact was made". The applicant's explanation that the contact between himself and [NAME_16] was accidental does not sit easily with [NAME_19]'s account that the applicant was upset when he saw him after the incident. The applicant denied this was his demeanour. [NAME_19], however, was a credible witness who while obviously anxious to defend his own decision, was prepared to frankly acknowledge the sensitive industrial relations environment that accompanies incidents of this type. Another consideration is the explanation given by the applicant as to why he was adjusting the controls of the machine. [NAME_16] had been in charge of the machine that morning I accept [NAME_16]'s version that the applicant proceeded to immediately adjust the controls when he returned from the meeting. He had no basis to do that without discussing the machine's settings with [NAME_16]. That he did so is consistent with [NAME_16]'s evidence that the applicant had in the past adjusted the machine in order to reduce production levels. [NAME_16] thus had some justification in pushing the applicant in order to reset the machine to the correct level in the course of what was then production of a batch of product. I accept that [NAME_16] pushed aside the applicant in an attempt to reset the controls, but it was the applicant who reacted to this justifiable action by an aggressive act in biting [NAME_16]. I am unable to accept the applicant's account that [NAME_16] headbutted him twice, and that the damage to [NAME_16]'s nose was as a result of accidental contact. [NAME_30] observed this incident. He told [NAME_29] that the applicant had bitten [NAME_16] and made a statement to that effect. When [NAME_43] indicated to [NAME_19] that [NAME_30] was recanting from that version, [NAME_19] reconfirmed with [NAME_30] his version of events. In the witness box he also confirmed that he thought he saw the applicant bite [NAME_16]. I am satisfied that the applicant did bite [NAME_16]. Was the respondent entitled to dismiss the applicant? There was a volume of evidence as to the application of the respondent's "no fighting" policy. I am satisfied that in the past there has been considerable informal resolution of incidents without the need for managerial intervention. The respondent did, however, have a policy that it applied when it was able to identify the aggressor in a fight. That policy was that the aggressor be terminated. Here the respondent concluded that the applicant had bitten [NAME_16], he was the aggressor in the fight and that the policy required that he should be dismissed. Counsel for the applicant submitted that on the evidence the applicant was not the aggressor. My findings above as to the circumstances in the incident do not support this submission. It follows from [NAME_16]'s version that the applicant engaged in an aggressive act which was disproportionate to what [NAME_16] was doing. The respondent investigated the matter and involved the union. When the union raised the possibility that [NAME_30]'s version was different from his earlier statement, [NAME_19] further checked with [NAME_30], who confirmed that statement. I am satisfied that [NAME_30]'s statement was true. It confirmed [NAME_16]'s account and provided a proper basis on which the respondent could act. In [NAME_1] v [NAME_2] (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996) Moore J said: "It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s 170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 which have been referred to, with approval, on a number of occasions since. Lehmann was entitled to view [NAME_1]'s conduct with the gravity she did. Her decision to terminate was for a valid reason." An employer's decision to terminate employment that is within "a range of rational and reasonable views" of particular conduct arguably refers to a band of unreviewable managerial prerogative that has been the subject of relatively little discussion in the application of the Act: cf [NAME_3] v [NAME_4] (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996); [COMPANY_6] v [NAME_7] (unreported, Industrial Relations Court of Australia, Madgwick J, 30 June 1997). Counsel for the applicant relied on AWU-FIME Amalgamated Union v Queensland Alumina Ltd. (1995) 62 IR 305 and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 in support of the submission that dismissal of an employee based on a "no fighting" policy required that all the circumstances of the incident be investigated. That happened here. The union, the representative of the applicant in this workplace, was involved. [NAME_19] took up the matter that [NAME_43] raised. He confirmed his further inquiry with [NAME_49] and [NAME_36]. Looking at the overall circumstances, the respondent has satisfied me that the applicant was the aggressor in the incident. He bit [NAME_16]. The latter did not do anything that could be characterised as provocation because it was the applicant who I am satisfied unilaterally adjusted the controls of the machine which was then operating satisfactorily. The respondent applied a policy that was not the subject of real dispute in the evidence. The policy was that where the respondent was able to identify the aggressor in an incident that, after discussions involving the parties and the union, was not to become a "non incident", the aggressor was terminated. Counsel for the applicant raised a further argument based on an award provision binding the respondent that the termination of employment by an employer "shall not be harsh, unjust or unreasonable": cl 22.6 of the [NAME_57] 1996. Counsel argued that the termination of the applicant's employment here contravened that criterion and was therefore unlawful. An unlawful termination could not be characterised as valid for the purposes of the Act. Counsel relied on [NAME_10] v [NAME_11] (1995) 64 IR 28; affirmed on appeal (unreported, Industrial Relations Court of Australia, Wilcox CJ, North and Madgwick JJ, 4 April 1996). I doubt, in the light of the line of authority in the Industrial Relations Court of Australia since [NAME_9]. v The Commonwealth of Australia (1996) 138 ALR 129, whether the award criterion assists the applicant here by adding anything to the concept "valid". In Cosco (above) Madgwick J said: "Prima facie, it would be odd if an unjust or unreasonable reason for terminating an employee's means of livelihood could be regarded as a valid reason." Here, the conduct of the applicant fell within the conduct proscribed by the respondent's no fighting in the workplace policy. A termination for that reason is valid. For the same reason the termination cannot be said to be "harsh, unjust or unreasonable". I am satisfied that the respondent has discharged its onus of proof that it had a valid reason to dismiss the applicant. Further, the respondent had accorded the applicant the opportunity to respond. There is no breach of the Act. The application must be dismissed.

ORDER:

1. The application is dismissed. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of JUDICIAL REGISTRAR MURPHY.

Associate: KAREN HALSE Dated: 20 AUGUST 1997 Counsel for the Applicant: [redacted] Solicitor for the Applicant: [redacted]

Counsel for the Respondent: [redacted] Respondent's representative: [COMPANY_63]

Date of Hearing: 5 & 6 JUNE 1997 Date of Judgment: 20 AUGUST 1997