Unfair Dismissal Claim Dismissed Due to Lack of Credibility

The claimant's unfair dismissal claim was dismissed due to his unexplained absence and lack of credibility. The Industrial Relations Commission found that the claimant's conduct undermined workplace safety and trust.

Industrial Relations Commission of New South Wales

[NAME] v. [COMPANY] [2005] NSWIRComm 1034 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT [NAME]

PARTIES: RESPONDENT [COMPANY](S): 4406 of 2004

CORAM: [NAME]

termination of employment - claim of unfair dismissal - [NAME] - [NAME] - failure of applicant to appear for cross-examination - want of prosecution - absenteeism - work attitude - fighting at work - assault - conflict in the evidence - credibility of witnesses - past employment record - failure to disclose injury on recruitment CATCHWORDS:

Industrial Relations Act 1996 LEGISLATION CITED:

[NAME] v. [COMPANY] (1932) AC 161 [NAME] v. [COMPANY] (1975) AILR Rep.544 [NAME] v. [COMPANY] (1975) AILR Rep.1093 [NAME] v. [COMPANY] (unreported) Electricity Commission of New South Wales v. Federated Engine Drivers and Firemen's Association (1975) AILR Rep.957 [NAME] v. [NAME] (unreported) CASES CITED: [NAME] v. Commissioner for Police (No.2) (1999) 88 IR 282 Jankoski v. BHP Port Kembla (1996) 71 IR 313 [NAME] v. Commissioner of Police (No.2) (2002) 112 IR 212 [NAME] v. [COMPANY] (unreported) [NAME] v. John Fairfax and Sons Limited (unreported) R. v. Everingham (1949) 66 WN(NSW) 122

HEARING DATES: 02/22/2005; 03/01/2005; 03/14/2005

DATE OF JUDGMENT: 04/08/2005

APPLICANT [NAME] LEGAL REPRESENTATIVES:

RESPONDENT [NAME]

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: [NAME], 8 April, 2005

Matter No IRC 4406 of 2004

[NAME] and [COMPANY]

Application by the [NAME] under S.84 of the Industrial Relations Act, 1996

DECISION

[2005] NSWIRComm 1034

Introduction

1 Mr [NAME] was employed as a shunter in the [NAME] of [COMPANY] (formerly [COMPANY]). His services were summarily terminated on Friday, 9 July, 2004 following verbal and, according to [NAME], physical abuse of [NAME], a locomotive driver also employed by [NAME], on two separate occasions. [NAME] is a member of the [NAME]. (So too is [NAME].) The [NAME] lodged an application on behalf of [NAME] under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. The matter was allocated to me.

2 Prior to his employment by [NAME] had been employed by [COMPANY] (now [COMPANY]), ie the [NAME] operations. His employment record with [NAME] has become an issue in this hearing as well which I will describe later in this decision. It is for that reason that in this decision I have identified his more recent employer as [NAME] to distinguish it from [NAME]. 3 I listed the Part 6 application for [NAME] for a preliminary hearing on Thursday, 26 August, 2004 and a mention on Monday, 6 September, 2004 (in the Commission's premises at 90 Crown Street, Wollongong). The matter was further adjourned for a mention on Monday, 15 November, 2004 (in Sydney). Conciliation failed to settle the Part 6 application. I programmed it for arbitration on Tuesday, 22 February, 2005, Tuesday, 1 March, 2005 and Monday, 14 March, 2005. In the hearing [NAME] represented [NAME] and the [NAME] and [NAME] represented [NAME]. I record in this decision that a further attempt at conciliation by me on Tuesday, 22 February, 2005 to avoid further litigation of the matter was unsuccessful. 4 There has been some difficulties in the hearing proceeding and delays essentially to meet [NAME]'s convenience. The hearing took place on the first day set down for it - Tuesday, 22 February, 2005 - but it became necessary to adjourn the hearing scheduled on Tuesday, 1 March, 2005 when [NAME] was absent due apparently to a sudden death in his family and his wish to attend a funeral on that day in Lithgow. [NAME] had been called to give evidence in the hearing by [NAME] and his cross-examination by [NAME] had not concluded on Tuesday, 22 February, 2005. The hearing was adjourned with the consent of [NAME]. I set the matter down for a resumption of the hearing on Monday, 14 March, 2005, vacating another matter I had scheduled for hearing on that day to accommodate [NAME]. But [NAME] did not appear in the proceedings on that day either and [NAME]'s cross-examination of him could not therefore resume. [NAME] had spoken to [NAME] and reminded him of the hearing on Monday, 14 March, 2005 and confirmed that hearing date on the telephone earlier on that day as well. [NAME] had given [NAME] the clear impression that he would attend the hearing. His failure to do so, without any explanation at all to [NAME], suggests that he has simply lost interest in the proceedings, despite [NAME]'s continued advocacy on his behalf. 5 Ordinarily, the absence of the dismissed employee from proceedings of this nature without any explanation being given would give rise to an application for the Part 6 application mounted on his behalf to be dismissed for want of prosecution in accordance with Rule 146. However, [NAME] did not make such an application. And notwithstanding [NAME]'s failure to appear in the proceedings, [NAME] has been told nothing by him to confirm that he is abandoning his claim in this hearing. Up to Monday, 14 March, 2005 he had been pursuing that claim with some vigour through [NAME], rejecting offers of settlement held out to him. As I indicated in my unreported decision of Wednesday, 28 July, 2004 in [NAME] v. [COMPANY] [Matter No.IRC 2753 of 2003 at p.3]:

"...I must...act on what (the dismissed employee) indicated when he gave his evidence... ie that he was emphatically seeking reinstatement in employment. His acquiesce - or absence from the hearing - cannot be construed as a change of heart on his part..."

6 [NAME] was prepared to abandon the further cross-examination of [NAME] and the matter proceeded with evidence being led from other witnesses. [NAME] had called [NAME] to give evidence in the hearing on Tuesday, 22 February, 2005. He also called three other witnesses in the proceedings: Mr [NAME], the rail transport manager for iron and slab at the [NAME], and two team leaders in rail operations - [NAME] and [NAME]. 7 Essentially, there is a conflict in the evidence of [NAME] and [NAME]. The confrontations between the two men was not witnessed and the outcome of this matter must therefore rely to a large extent on the respective credibility of [NAME] and [NAME]. [NAME] and [NAME] have certainly formed the opinion that [NAME]'s version of the evidence was to be preferred. They regard [NAME] as unreliable and untrustworthy and they do not believe his version of the incident. [NAME]'s unexplained absence from the hearing on Monday, 14 March, 2005 (with [NAME]'s cross-examination of him incomplete) has also not helped him in establishing his credibility, as far as I am concerned.

8 In the Part 6 application the [NAME] has sought [NAME]'s reinstatement under S.89(1). That is the primary remedy for any unfairly dismissed employee [[NAME] v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. And, in my opinion, that would almost inevitably be the remedy which would apply for any unfairly dismissed [NAME] employee. Notwithstanding the friction in the working relationships which developed around [NAME] in the [NAME] rail operations, I believe there would remain ample scope for [NAME], with its large workforce, to accommodate [NAME]'s reinstatement in some other department in the [NAME]. That type of option may not so readily be available in smaller establishments where the remedy for an unfair dismissal is more likely to be confined to monetary compensation under S.89(5) alone. Nevertheless, I understand that [NAME] is now pursuing another career and I formed the impression from his evidence that he was not really committed to resume work with [NAME]. My unsuccessful attempts at conciliation on Tuesday, 22 February, 2005 centred around a monetary settlement of the [NAME] claim on [NAME]'s behalf which he rejected.

Background

9 There are 15 locomotive engines in operation for [NAME] in the [NAME], each of which is manned by a driver and a shunter who work together for the transportation of raw material or finished product throughout the [NAME]. There are 70 drivers and 70 shunters whose employment is regulated under the terms of the [COMPANY] [NAME] Employees Award. They ordinarily operate continuous 12 hour shifts. The driver occupies the senior position and, ultimately, must take immediate responsibility for the safe and efficient operation of the locomotive.

10 [NAME] has been employed as a locomotive driver in the [NAME] for over thirty years. His employment record reveals no safety breaches and there is nothing before me to support any argument that in the past he has acted in anything but a safe manner. [NAME] had formerly worked firstly as an apprentice fitter and subsequently as an operator in the [NAME] - for [NAME] - until late in 2001 when he accepted a voluntary redundancy package on offer. The strapping line in the tin mill where he was working at that time had shut down. He commenced employment as a shunter with [NAME] on Thursday, 31 July, 2003. [NAME], as driver, and [NAME], as shunter, came together to work in the middle of 2004. [NAME] believed that he had a good working relationship with [NAME], there has apparently been some concerns by [NAME] in working with [NAME].

11 [NAME] also conceded that there were many adverse issues in his employment with [NAME] - absenteeism and work attitude - which suggested to me that the voluntary redundancy package was something of a life raft for him to avoid his inevitable dismissal. His colourful employment record with [NAME] commenced as far back as late 1994 when, as an apprentice, he had lost his temper and threw a hot pot at other staff members in the crib room, hitting another employee in the arm. On another occasion his temper had resulted in him smashing his safety hat into two pieces. His work attendance was also apparently poor. Certainly, on Friday, 11 May, 2001 a final warning regarding his work attendance and attitude had been recorded on his personal history card. [NAME] admitted that he had a temper, aggravated at that time by some domestic difficulties he was experiencing with his former wife. [NAME] indicated in his evidence that, had he known of those incidents in [NAME]'s employment with [NAME], he would not have recruited him in the first place. 12 In any assessment of the fairness or unfairness of a dismissal the Commission would ordinarily tend to concern itself only with the current period of employment and would disregard any engagement with a previous employer. In those circumstances, incidents in [NAME]'s employment with [NAME] would be irrelevant for his later employment with [NAME]. Nevertheless, I will discuss this matter in more detail later in this decision because [NAME] has highlighted aspects of [NAME]'s employment with [NAME] in his submissions as establishing evidence concerning his conduct at work and, ultimately, his credibility - or lack of it. 13 Moreover, I have to say that there were many incidents in [NAME]'s relatively short period of employment with [NAME] - his frequent absences from work, his constant requests to swap shifts, his requests to leave work early, the excessive amount of work injuries he claimed to have sustained and his general work attitude - to suggest to me that the [NAME] were being very tolerant with him. [NAME] was pushing that tolerance to its limit. [NAME] alleged that he had some personal issues during that time. His partner had a life threatening illness. He conceded that he has been under severe pressure and stress. He was the primary carer for his partner and was also required to look after his partner's child. [NAME] had also sustained a rib injury. He had broken his ribs whilst drinking in an hotel when an argument he had with a mate had culminated with him being crash tackled into a wall. In any event, for one reason of another, [NAME] took a substantial amount of time off work. To assist [NAME] placed him on light duties from time to time.

14 Nevertheless, [NAME]'s poor attendance and work attitude caused [NAME] and [NAME] concern and brought him to the attention of [NAME] who formed the view, which he expressed in a written statement forming the basis of his evidence in this hearing, that [NAME]:

"...was a very difficult employee to manage. Other than his period of probation, [NAME] was employed by the company for less than ten months. During this period, I would estimate [NAME] was only available to perform work in the position for which he was employed for about seven months..."

[NAME] also claimed in his written statement that:

"...during the short period [NAME] was employed (under his supervision), his attitude, performance and conduct regularly required my attention and the attention of...[NAME]. [NAME] was a disruptive influence on the crew, either through his own actions or because assistance provided by the company created resentment from other members of the crew..."

In short, [NAME] intimated in his evidence that the other employees did not believe that [NAME] was "...pulling his weight...", creating friction among his fellow-employees.

15 The concessions made to [NAME] by [NAME] were not limitless and his requests for more and more time off work were ultimately not accommodated. Also, as I understand the evidence of [NAME] and [NAME], they both held some suspicions concerning the genuineness of reasons given by [NAME] for his frequent absences from work. For instance, [NAME] recorded in his written statement that:

"...on Saturday, 6 March, 2004 [NAME] was working night shift with me as team leader. It was the final night shift before the introduction of 12 hour shifts on Sunday, 7 March, 2004. At the commencement of the shift, [NAME] asked me if I had a spare shunter to replace him. After I told him that there were no spare shunters available, he told me that he might get a call from his girlfriend who he alleged had been in hospital all day. I was suspicious about this because two days earlier [NAME] had been talking about a 'big' weekend planned with his mates when he was going to attend the Motor Cross and tickets he had for a fight at Panthers nightclub. At about 4.50am on Sunday, 7 March, 2004 [NAME] told me he received a call from his girlfriend and left the shift..."

16 [NAME] gave evidence that late in 2003 [NAME] requested that he leave work early and when [NAME] informed him that he had permission to leave at 2.30pm, [NAME] allegedly replied:

"That's not good enough. I have to go earlier. I have to go at 2.00pm."

And 15 minutes later, [NAME] attended the ambulance station, complaining that he had jarred his ribs whilst pulling a set of points and had re-aggravated his old injury to his ribs. He left the plant, purportedly to get an x-ray but, ultimately he did not get that x-ray. [NAME] was less than impressed and reported the incident to [NAME]. [NAME] claimed that he had not left the [NAME] earlier than the time [NAME] had permitted him. As far as [NAME] could recall, he provided [NAME] with that x-ray on that occasion but I found his evidence over that assertion unconvincing.

17 [NAME] also recorded in his written statement that:

"...a further incident which created doubt in my mind about [NAME]'s credibility occurred a short time after he commenced on my shift. [NAME] alleged he twisted his ankle and knee in a muddy area of the slab yard. I attended the area where the alleged incident occurred with [NAME] and I saw two footprints, side by side, in the mud adjacent to the shunter walkway, but no further steps around those footprints. I doubted whether the alleged incident was genuine because the appearance of the footprints was unusual and it appeared to me [NAME] had no reason to walk in that area. [NAME] also did not claim workers compensation for the alleged injury. Nevertheless, following this incident, [NAME] was placed on light duties for one week..."

18 On Tuesday, 25 May, 2004 [NAME] had been involved in a serious vehicle accident in the [NAME] when his vehicle collided with an Euclid truck as he turned into an area of the plant where he was not authorised to drive his personal vehicle. The accident constituted what [NAME] regarded as a serious breach of road and rail transport policies. It was. Photographs of the crumbled bonnet of [NAME]'s car were tendered in evidence to show just how serious the accident was. To compound the seriousness of the incident [NAME]'s drivers license had been suspended and his vehicle was neither registered nor insured. Steelwork employees have regularly been dismissed by [NAME] for less serious safety breaches. [NAME] was suspended without pay for a week. Up to that time he appears to have has led a charmed life in the [NAME].

19 With the introduction of 12 hour shifts in the [NAME] rail operations on Sunday, 7 March, 2004, a range of shift options arose for [NAME] and, for family reasons, he opted to work a five day roster which brought him under the supervision of [NAME] and into contact with [NAME] on Tuesday, 15 June, 2004. Matters appear to have come to a head. I turn now to examine the evidence of [NAME] and [NAME] in this hearing on the two incidents on which [NAME] have based [NAME]'s dismissal.

The Evidence of [NAME]

20 [NAME] does not regard the friction in the working relationship he had with [NAME] as a personality clash: he sees it essentially as an issue of workplace safety. [NAME] claimed he had worked with other drivers and had no problems with them. But he did have difficulties with [NAME]. He acknowledged that [NAME] had extensive experience as a locomotive driver but he regarded him as inexperienced in the particular area in which he was working at the time [NAME] partnered him. [NAME] claimed that the way [NAME] handled the job unsettled him and there were several incidents (not necessarily described in any detail his evidence) which concerned him and made him reluctant to work with [NAME]. ([NAME] suspects that [NAME] was simply seeking a change of shift to provide him with more remuneration than he received in working with [NAME]. If that is the case, [NAME]'s was simply a casualty of [NAME]'s ambitions.)

21 On Monday, 21 June, 2004 [NAME] was engaged in picking up torpedo ladles from the automatic hot metal weighbridge and taking them to the "woodpecker", which is a rail siding where empty hot metal ladles are placed for minor maintenance. [NAME] was driving the locomotive. [NAME] claimed that he was driving too fast. He signalled him to slow down but he did not do so. He signalled a second time but again [NAME] did not stop. There was a collision and molten iron splashed over the top of a ladle and, according to [NAME], landed a few metres from him - where, in fact, he had been standing before he had moved aside. [NAME] claimed that, if he had not moved, the hot metal would have landed on him and he was naturally concerned that he may have been seriously injured.

22 Later in the shift, [NAME] was standing waiting for [NAME] to push the train back. Instead, [NAME] waved his hands around. [NAME] did not understand what [NAME] had meant by his hand waving and contacted him on the radio. [NAME] did not answer. [NAME] walked up to [NAME]. He claimed that he was still a bit shaken from the possibility that he could have been splashed with hot metal and the conversation between the two men became an argument. 23 [NAME] began by speaking to [NAME] in the following manner:

"What's wrong? Are you trying to make my job difficult? Do you have a problem with me?"

[NAME] asked [NAME] why he had not responded when he had spoken to him on the radio and [NAME] replied:

"I couldn't help it if you couldn't understand signals."

[NAME] responded that [NAME] had not given any official signals and had splashed him with hot metal. [NAME] denied that he had done so and [NAME] complained:

"You have been hitting wagons all through the week. You have to take notice of me when I signal you to stop or slow down."

[NAME] told [NAME] that he intended to talk to his supervisor about him and that he was not intending to work with him again. [NAME] suggested that they finish the job they were involved in first and they did so. They finished their shift together.

24 However, on Tuesday, 22 June, 2004, [NAME] complained to [NAME] that he did not wish to work with [NAME] anymore and he again raised his concerns over working with [NAME] when he spoke again to [NAME] on Monday, 5 July, 2004. [NAME] responded that [NAME] was considering rotating crews on a monthly basis but [NAME] was not content with such an arrangement because, he claimed, for one month in every four months he would still be working with [NAME]. He asked [NAME] to swap crews. He was not prepared to make an official complaint about [NAME], recognising that [NAME] was a senior employee with a lengthy period of employment with [NAME] and not wishing him to be subject to disciplinary action.

25 On Tuesday, 6 July, 2004 [NAME] was approached by another shunter who was prepared to swap crews with him but when he commenced work he found that he was still working with [NAME]. [NAME], who believed that his problem with [NAME] had been solved, conceded that he "...was not too happy..." about resuming work with [NAME]. The job in hand for [NAME] and [NAME] was the coupling of a full rake (five rail wagons) and, when [NAME] requested him to perform that task, [NAME] assessed it as unsafe, a heated argument ensued between the two men. [NAME] believed that the locomotive was not in the right spot. [NAME] cannot now recall what was said in the confrontation between the two men but he denies that he physically attacked [NAME]. [NAME] was called by [NAME] and he came over to the locomotive.

26 [NAME] told [NAME] that he was going home because he was stressed. [NAME] took [NAME] to the ambulance station and subsequently he went home on stress leave. [NAME] was taken off the job and [NAME] took him to [NAME]'s office. [NAME] was stood down whilst an investigation of the incident took place. The investigation continued but [NAME] formed the impression - accurately enough - that he may be dismissed and he contacted the [NAME]. At a further meeting on Friday, 9 July, 2004, [NAME] was informed that his services were terminated for serious misconduct and both physical and verbal abuse. [NAME] denies that he physically abused [NAME].

The Evidence of [NAME]

27 When on Monday, 21 June, 2004 [NAME] was transferring the torpedo ladles from the hot metal weighbridge to the "woodpecker" he contacted the hot metal controller by two way radio and arranged for another locomotive which was already transferring full ladles from the blast furnace to the "woodpecker". He transported the ladles from the weighbridge and waited for the other locomotive to couple them. He signalled to [NAME] (crossed arms) that he was not driving to the "woodpecker" from the right hand side of the locomotive where [NAME] was standing and then transferred to the other side of the locomotive to determine when the locomotive cleared the points. Crossed arms was a signal which [NAME] had developed to indicate that a particular job the locomotive was engaged in had been aborted. It was not a signal recognised generally at the [NAME]. [NAME] did not understand it.

28 [NAME] had got down from the locomotive (which surprised [NAME] because he did not believe that the locomotive had slowed down sufficiently for [NAME] to get off it). [NAME] indicated that [NAME] should not have got down from the locomotive until it was completely stationary. [NAME] then entered the cabin, grabbed [NAME] by the collar, pushed him backwards against the cabin and pressed him there, saying:

"You fucking old fart. What are you trying to do? Are you trying to kill me? You're driving too fast."

[NAME] replied:

"I am trying to help you." And [NAME] threatened:

"I could do you, you pommy git."

29 The two men sat down and [NAME], although he was still shaken over the incident, expressed surprise at [NAME]'s outburst. He thought up to that time that he and [NAME] worked well together. But [NAME] indicated:

"I don't want to work with you."

[NAME] offered [NAME] a two-way radio and told him to contact [NAME] but [NAME] told him that he "...couldn't be bothered..." and they resumed work. [NAME] did not report the incident and there was no problem when on Tuesday, 22 June, 2004 , Wednesday, 23 June, 2004 and Monday, 5 July, 2004 he was paired with [NAME], although the working relationship between them was apparently cool and they spoke to one another as [NAME] as possible.

30 On Tuesday, 6 July, 2004 [NAME]' task was to take his locomotive to the west turntable and pick up a rake. Another locomotive was to collect the rake and deliver it to the slab yard, whilst [NAME] would remove the empty slab wagons from the area. [NAME] pulled his locomotive over to the slab yard loop, stopped the locomotive and asked [NAME] to uncouple the rake. [NAME] refused to perform that task, claiming that [NAME] had not placed the locomotive in the right place on the rail line. [NAME] believed that he could not move the locomotive further down the railway line without crossing the points. [NAME] repeated his request and [NAME] told him that he would only uncouple the rake when the other locomotive tied on.

31 [NAME], who was at that time standing across the cabin with his back to [NAME], turned and said:

"You fucking old fart. You don't know anything."

Knocking off [NAME] glasses and hat with the back of his hand.

32 [NAME] responded:

"I am not putting up with this shit anymore."

And he indicated that he proposed to call [NAME], moving towards the two-way radio. [NAME] said:

"You're doing me a favour. I don't want to work with you. I can make your life fucking hell until you retire."

[NAME] was not able to reach [NAME] on the radio at first. He completed the work that was required and then reported the incident to [NAME]. He also informed [NAME] about the incident on Monday, 21 June, 2004. He was extremely upset and was shaking. [NAME] took him to the ambulance station and later he met with [NAME]. [NAME] then drove him home in [NAME]'s car. [NAME] went and visited an attending medical practitioner.

33 [NAME] is continuing counselling from a consulting psychologist engaged by [NAME]. [NAME] has spoken to [NAME] and visited him on several occasions since he has been absent from work on stress leave and he had formed the view that [NAME] remained deeply disturbed by the incident. He has not resumed work since the incident and remains upset and disturbed over it. He indicated in his evidence that his apprehension over giving evidence in this hearing before me has also played on his mind and contributed substantially to his current mental state which precludes him from resuming work. He has sought "closure" of the matter in these arbitrated proceedings.

Conclusion

34 In my unreported decision of Tuesday, 8 March, 1994 in [NAME] v. [COMPANY] [Matter No.IRC 3116 of 1993] I commented (at pp.8 and 9) to the following effect:

"…It is clearly settled law that fighting at the place of work is misconduct and, as such, grounds for summary dismissal. (The advocate for the employer) drew my attention to the unreported decision of McClelland J on Friday, 25 January, 1980 in [NAME] v. [COMPANY] [Matter No.52 of 1980]. In that case his Honour expressed the view (at p.9) that fighting at work, along with the consumption of intoxicating liquor at work and the stealing of an employer's property, constituted the classic justification for summary dismissal..."

[NAME] in Jankoski v. BHP Port Kembla (1996) 71 IR 313 to which [NAME] referred in his submissions, explained the position in the following manner (at p.319):

"...The Commission has often had to consider cases involving a form of violence between employees. Generally it has upheld the right of the employer to insist on a workplace free from such practices unless there are extenuating circumstances. I must adopt that principle espoused in those authorities and observe that as a general concept any employer not seeking to fully prevent the recurrence of violent exchanges at work could not be said to be fulfilling its obligation to other employees to ensure a safe and as pleasant as possible workplace..."

35 I do accept that exchanges between employees in a working environment like a [NAME] may often be robust and conducted at times in colourful language. As I indicated in my unreported decision of Thursday, 13 July, 2000 in [NAME] v. [NAME] [Matter No.IRC 4242 of 1999 at p.46]:

"…It is hardly surprising that the conversations of groups of men working together would involve colourful language which in another context may be offensive. BHP is running a [NAME] and not a monastery. What may at one time have been regarded as offensive language seems in more modern times to be accepted as part of normal speech…"

But an exchange between two employees which places one of them, who has a very lengthy period of employment at the [NAME], on a long period of stress related absence from work - and for which he remains presently unable to return to work - is another matter entirely.

36 According to [NAME], when on Tuesday, 6 July, 2004 he met with [NAME], with respect to the incident on Monday, 21 June, 2004, [NAME] admitted that he had been "mad" with [NAME] and that at that time he had said to him "...fuck off...", that he did not know his job and was a "...pommy git...". He also admitted that the two men had grabbed each other by the arms and that [NAME] said:

"You may be big but I'm strong." To which [NAME] responded:

"You call that strong. You're struggling."

And with respect to the incident on Tuesday, 6 July, 2004, [NAME] had admitted swearing at [NAME]. He denied any physical contact with him, viz:

"Nothing physical happened. I didn't hit him or knock his glasses or his hat."

[NAME] was more inclined to believe the version advanced by [NAME].

37 So am I. I found [NAME] in his evidence in this hearing to be evasive in his answers and his credibility is very much in doubt in my mind. [NAME] was clearly nervous in giving his evidence, I found his version of the incident more plausible. [NAME] concedes that he has a temper and the evidence before me in this hearing suggests to me that [NAME]'s aggressive personality is consistent with the evidence [NAME] gave. If he believed [NAME] had wronged him in some way over safety issues, the proper course for him to follow was to take the matter up with [NAME]. Not to take matters into his own hands. And notwithstanding [NAME]'s strong advocacy on [NAME]'s behalf, the fact that [NAME] has adopted such a casual approach to his claim, declining to turn up in the hearing without any explanation (and thereby avoiding further cross-examination by [NAME]), does not auger well for his claim. [NAME]'s best efforts on his behalf in this hearing, [NAME] has chosen to leave much of his claim undefended.

38 [NAME] suggested in the proceedings that [NAME]'s past unsatisfactory employment record when he worked for [NAME] was relevant in this hearing. Certainly, [NAME]'s conduct whilst he worked for [NAME] does serve to confirm that he had a temper. But as I indicated to [NAME] during the course of the hearing and earlier in this decision, I do not believe that a poor employment record with a previous employer is a matter which a subsequent employer may rely upon as grounds for dismissal. The situation is complicated in that there is some link between [NAME] and [NAME] and, in fact, [NAME] was working in a department of [NAME] which it had, in fact, taken over from [NAME]. But [NAME] and [NAME] are still two different employers and [NAME]'s employment record with [NAME] and with [NAME] should be regarded as two different things.

39 I would have expected that [NAME] would have made some check of [NAME]'s work record with [NAME] when he was recruited. But I believe that an employee is under no obligation to disclose any information, contrary to his interests, upon recruitment. I reject any suggestion in [NAME]'s submissions that he was under such an obligation. It is not a matter which I would take as any indicator of his lack of credibility that he did not disclose certain negative facts in his previous employment at selection. 40 Contracts of employment are ordinarily not of the uberrimae fidei class so as to render it incumbent upon an employee to disclose all material facts at the time that the employer/employee relationship commences [[NAME] v. [COMPANY] (1932) AC 161]. The Full Bench of the Commission ([NAME], Hungerford and Peterson JJ) considered this issue in [NAME] v. Commissioner for Police (No.2) (1999) 88 IR 282 and in the majority judgment ([NAME] J) the following comment is made:

"…It is the employer who properly has the task of laying down the requirements for a job and of obtaining suitable employees to perform it; the employment application form and the interview process are obvious means in order to do that. But to impute to an applicant for employment knowledge about the requirements of the position sought, particularly to the extent of requiring them to offer reasons why they are unsuitable for it, is to stretch credulity… If (the employer)…required information on an applicant's background, other than that sought in the employment application form and at the interview, then he should have asked for it. The (employer) did not do so…"

41 Nevertheless, [NAME]'s application for employment with [NAME] was accompanied by a medical assessment which included an undertaking given by him, and signed by him, concerning his medical history. I am satisfied that undertaking was a condition for employment with [NAME]. Among other things, [NAME] was required to confirm that he had no "...spinal disorder, disc disease or disorder or back trouble...". He answered that questions in the form that he had no such injury. [NAME] had been employed in the packaging products department of [NAME], he had incurred an injury to his back in early 2000 which had led to a workers compensation payment to him. [NAME] claimed in his evidence that his back injury had improved - too suddenly to be believed in my opinion - but that is not the point. He should have revealed his back injury when he applied for work in [NAME]. The undertakings he was required to give in the form he was required to complete were clear on that point. The fact that he was not truthful in providing an accurate medical history upon recruitment by [NAME] is itself grounds for dismissal, in my opinion.

42 In [NAME] v. [COMPANY] (1975) AILR Rep.544 [NAME] of the South Australian Industrial Court had upheld the dismissal of an employee who had given negative answers to medical questions on his application form for a job, failing to disclose that he had received workers compensation for a hernia and suffered a leg injury. He took the view, which was supported on appeal by a majority of the Full Bench of the Court ([NAME] JJ) in [NAME] v. [COMPANY] (1975) AILR Rep 1093 ([NAME] J dissenting), that the employee had been engaged on the basis of the statements he had made and he could not therefore complain if the employer, having learnt the truth, terminated his contract of employment [Electricity Commission of New South Wales v. Federated Engine Drivers and Firemens' Association (1975) AILR Rep. 957].

43 The occupational health and safety obligations on all employers are strict and it is important for any employer - particularly an employer engaged in a work environment of heavy physical work such as a [NAME] - to ensure that all its employees are fit for the work expected of them. An application for employment in which a proposed employee does not truthfully answer all relevant medical questions on which that employment is so clearly based is a serious matter because it could place that recruited employee in work for which he is not physically fit. Such a false statement at recruitment would be sufficient to form the basis of a dismissal, in my opinion. 44 I hasten to add that [NAME] was not dismissed because of his failure to disclose his back injury. Nor because of the clear breach of safety over the car accident in which he was involved at the [NAME]. Both matters would have been grounds for dismissal on their own. It was because of his altercations with [NAME] and that matter stands alone in that respect. I am satisfied [NAME] behaved in the manner described by [NAME] in his evidence. 45 [NAME] has attempted to justify much of his unsatisfactory conduct on the basis of personal problems with his ex-wife and his current partner and the injuries he has allegedly obtained. They do not justify his conduct at all. I have a strong suspicion concerning those issues. It is open to me on the evidence before me to conclude that [NAME] was milking a level of tolerance and compassion out of [NAME] that he would not ordinarily have been entitled to expect and, in particular, taking advantage of [NAME]'s compassion. In his submissions [NAME] described [NAME]'s conduct as a "...cry for help..." that went unheaded by [NAME]. But, in my opinion, [NAME] was very tolerant and generous with him. And, frankly, he has also treated the [NAME] and [NAME], who has ably represented him in this hearing, with a level of disrespect. He has received a level of tolerance from everybody. He was not prepared to show a similar level of tolerance with [NAME], however. His conduct to him was totally unacceptable. 46 In any event, even on [NAME]'s own version of events, ie a verbal exchange between the two men only, I am satisfied that [NAME] had assaulted [NAME]. As I indicated in [NAME] v. [NAME] (at pp.47 and 48):

"...For there to be a serious threat of assault, it must have been the intention of (the dismissed employee) to cause (the other employee to whom the threat was made) apprehension and for (him) to actually believe that he may be harmed. The gist of the assault lies particularly in the apprehension in the victim's mind. Thus a person pointing a harmless toy pistol at a taxi driver who was deceived and thought the pistol was real would still clearly be an assault [ R v. Everingham (1949) 66 WN(NSW) 122]...The main issue for me to consider was whether it was reasonable for (the other employee) to take the view that he was under threat and whether he, in fact, believed that he was..."

I believe that [NAME]' concern over the conduct of [NAME] were reasonable in all the circumstances. It is [NAME]'s temper which has again got him into trouble. His conduct alone is responsible for his dismissal.

47 For those reasons, I do not propose to intervene in support of [NAME] in this hearing. I dismiss the Part 6 application the [NAME] lodged on his behalf.

[NAME] Commissioner

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