FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of judicial registrar- misconduct - disparity in treatment of employees - termination held valid where fighting employee were treated in a “consistent” manner, though differently

Workplace Relations Act 1996 (Cth):  s 170DB, s 170DC, s 170DE

Western v Union des Assurances de Paris (IRCA, Madgwick J, 28 August 1996)

Victoria v Commonwealth (1996) 70 ALJR 680

Lowe v The Queen (1984) 154 CLR 606

CAPRAL ALUMINIUM LTD v TAGULIMA SAE

NI 1801 of 1996

Madgwick J

Sydney

1 August 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The decision of the judicial registrar is quashed.

2.         The application is otherwise dismissed.

EX TEMPORE REASONS FOR JUDGMENT

(Revised from transcript)

HIS HONOUR:   This is an application for review of orders and judgment given by a judicial registrar, the consequence of which was that the applicant company was ordered to pay to the respondent, Mr Sae, the sum of $13,382.20 as compensation under s 170EE of the Workplace Relations Act 1966 (Cth) (“the Act”) for unlawful termination of his employment. 

The incident leading to Mr Sae’s termination concerned fighting and readiness to fight at the work place with another employee, Mr Kuoch.  Both Mr Sae and Mr Kuoch were employed as assistant packers in the packing area of the company's plant, that packing area being part of the division of the company concerned with the extrusion of aluminium products.  Both had been good employees until the events in question.  Mr Sae is a large, heavily-built man who comes from the Pacific Islands.  Mr Kuoch is a much smaller man who comes from South-East Asia. 

The habits of the employees of the company in the relevant area included horseplay which, among other things, involved playful verbal abuse of each other with the use of terms such as "arsehole" and mock serious insults by gesture including that known as "giving the finger" to one another.

As will be seen, this matter arose because the horseplay got out of hand.  It appears that, for a period surrounding and shortly preceding the incidents in question, Mr Sae had some unusual personal pressures upon him, which probably explained his role in the events which I shall soon describe. 

There is some conflict in the evidence between Mr Sae and Mr Kuoch about what happened.  Where there is a conflict I unhesitatingly prefer the evidence of Mr Kuoch.  He was a very impressive witness.  He was frank, quiet and willing enough to make admissions against his own interests.  He accepted that his behaviour had been wrong but gave an explanation for it. 

The same cannot be said of Mr Sae.  I do not wish to be too unsympathetic in my judgment of him.  He has now again been out of work for a long time, he has a family to support, and I well understand that he is in a desperate financial position, but I have no doubt that these matters have led him to embroider his evidence to exaggerate and to lie when he thought it would help him.  His demeanour was very unimpressive and he went so far as to say that he felt he had done nothing wrong at all, demonstrating thereby that his account of matters lacked reality. 

What happened, I think, was as follows.  There were four incidents in all.  The first incident occurred on 8 May 1996 in the lunch room.  I take this account from Mr Sae's own account given to company representatives on 14 May, so far as is material.  Mr Kuoch may well have gestured Mr Sae by the use of the impolite finger gesture to which I have referred.  At a time when Mr Kuoch was in fact out the door and there was no imminent danger to him, Mr Sae threw the knife, with which he had been issued for the purposes of his employment, at the door through which Mr Kuoch had just gone.  The knife bounced off the door and skidded some short distance on the floor.  Mr Kuoch was not in fact scared by what had happened.  Indeed Mr Kuoch was not especially concerned in a subjective way about the incident.  However Mr Sae told the company that his intention had been to scare Mr Kuoch. 

Even putting that aside, and even if it were just an extension of horseplay, it was singularly inappropriate, took horseplay beyond what was usual or might reasonably be tolerated and was a kind of conduct which, if not summarily put an end to, would carry the seeds of danger to employees.  The company of course, like every employer, was under an active duty to take care for the safety of all of its employees.

The second incident occurred on Saturday, 11 May at about 8.30 am when the two men were working a 3 am to 11 am shift.  They worked a few metres apart at areas that were known as “packing stations”.  Mr Sae's workmate, Mr Alofi, walked two or three metres from his and Mr Sae's workplace across to Mr Kuoch and touched him on his backside.  It may be that the aim was to startle Mr Kuoch.  At all events, it certainly discomfited him in some way.  Mr Alofi and Mr Sae laughed.  Something about their laughter upset Mr Kuoch and he became offended and angry.  Some words were exchanged.  Mr Sae, himself angry and upset by this stage, walked over to Mr Kuoch, put his hands around Mr Kuoch's neck for a few seconds and raised his hands in a lifting motion.  He did not lift Mr Kuoch's feet off the floor but he raised Mr Kuoch's head.

The third incident followed soon after.  After Mr Sae had gone back to his own work station he looked across to Mr Kuoch, spoke to him again in a seriously angry manner and said "You want to fight, I'll see you in the carpark" meaning thereby at the end of the shift.  Mr Kuoch replied "Yes". 

The fourth incident puts Mr Kuoch in a bad light.  In the carpark at the end of the shift Mr Sae was following Mr Kuoch at a distance of four to five metres.  Mr Kuoch turned and asked Mr Sae whether he still wanted to fight; Mr Sae agreed.  Mr Kuoch went to his car, opened the boot, took out an aluminium bar about half a metre long and a couple of centimetres thick.  Mr Sae said "Drop your bar and we'll fight".  Mr Kuoch replied to the effect that Mr Sae was bigger than him and he needed the bar.  Some of the other employees had the good sense to intervene and told the pair not to fight.  One of them said "If you guys fight you'll both get sacked".  They then went home. 

The next week the matter was properly and quite fairly investigated by the management.  Mr Sae was interviewed in the presence of a union representative.  He made some complaint that an interpreter should have been afforded to him, but while his English is far from perfect, it was perfectly adequate for the investigation that followed, given some good will as to ascertaining Mr Sae’s position, which I do not doubt was forthcoming on behalf of the company's delegates in their investigation of the matter.

A decision was made after the investigation that Mr Kuoch should be the subject of a written warning and that Mr Sae should be dismissed, which he was. 

Mr Kuoch explained in his evidence that, some time before this, away from the workplace, when he had gone for a game of tennis, he had been the victim of an assault; he believed, when Mr Sae assaulted him on the Saturday morning, that he needed to show, small though he was, that he would not be a target for violence or oppression and that he needed to display a degree of pugnacity in order to have this understood.

It is no surprise that it was argued on Mr Sae's behalf that the disparity in treatment by the company of the two men indicated that the reason for the termination of Mr Sae's employment was not a valid one.  In my view, as I have expressed in Westen v Union Des Assurances De Paris (Industrial Relations Court of Australia, 28 August 1996) and other cases, it will generally be very difficult for a reason to be regarded as valid for the termination of an employee's employment (which in the usual case means deprivation of the employee's means of livelihood) if the reason for the termination can be seen to be unfair or unjust.  The judicial registrar applied a similar approach.  She had a different view of the facts than I had but nevertheless, on the issue of parity of treatment of the two employees concerned, as she said:

“The fact that Mr Kuoch's employment was not terminated is a relevant consideration.  It is indicative of the respondent's standards.  It should be remembered that the primary purpose of disciplinary action in the workplace is not to punish but to achieve greater efficiency and to maintain standards.  The consequences of disciplinary action should be consistent between employees who are equally guilty of unacceptable conduct.”

In argument before me, the company did not seek to play down the unsatisfactory aspects of Mr Kuoch's conduct.  The judicial registrar’s notion of "consistent" consequences for "disciplinary" action where employees are involved together in misconduct is to my mind an important and a correct one.  The approach of the criminal law to sentencing provides, in my view, a useful analogy.  For example, in Lowe v The Queen (1984) 154 CLR 606 Mason J said (at 613-4):

“. . .what is the correct principle to be applied in cases of discrepancy?  It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”

On the facts as I have found them, there is no question that, but for what was done in relation to Mr Kuoch by the company, the termination of Mr Sae's employment was well-justified.  He had perpetrated two incidents of violence on separate days and had offered and instigated a third; I refer, of course, to his raising the subject of a later fight in the carpark.  Finally, he was prepared to engage in a fight on the employee’s premises with a fellow employee.  None of this is made the more attractive by the fact that he was so much bigger and stronger than the other man.

The question is whether what the company did in relation to him could be regarded as consistent with what was done in relation to Mr Kuoch or, in other words, whether the discrepancy gives rise to a justified sense of grievance on Mr Sae’s part.  In my view it was well open to the company officer who made the decisions about the two men to take the view that they were being dealt with consistently.  Consistency does not necessarily mean equality.  Mr Kuoch was the aggressor on only one occasion, not three, as was the case with Mr Sae.  Mr Kuoch was guilty too of agreeing to fight later in the carpark when Mr Sae first suggested it at the workplace, but he had a compelling personal explanation for his approach.  He was not the initial aggressor or instigator and he had been the victim of a humiliating assault by a much larger man at the workplace without any provocation worth speaking of. 

It needs to be remembered that there was no evidence to suggest that the company had available to it any graded range of disciplinary options such as some awards very usefully provide for some employments.  The company's options for the two men were to do nothing, to keep them employed but warn them against repetition of their conduct, or to dismiss them.  There is undoubtedly a large gap between a warning that there should be no next time and precipitating an employee into unemployment.  Nevertheless, when one examines the matter, there is a quite substantial gap in relative culpability between Mr Sae and Mr Kuoch. 

The effect of the termination of Mr Sae's employment upon him has been a harsh one.  As I said, he has been unemployed for some considerable time, and the company must have known that he was unemployed for some considerable time before he started work for the company.  It would be right to think that the company (by its agents) would be aware of the difficulties of the employment market for work like that done by the two men here, apparently involving little skill.  Nevertheless, the harshness of the effect of termination upon Mr Sae is not, except very indirectly as drawing attention to the seriousness of the decision, relevant to the question of its validity.  In Victoria v The Commonwealth (1996) 70 ALJR 680, the High Court regarded the harsh effect of a decision to terminate as a concept falling outside s 170DE(1). 

Some faint complaint was made that s 170DC was not complied with in that, by reason of Mr Sae's not having had an interpreter available to him, the opportunity which was otherwise amply provided to him to defend himself and respond to the allegations made against him was not truly given to him at all.  As I have indicated, I think there is nothing in that complaint.  It seems to me that the company officers proceeded in a way which in the real world, as distinct from that of theoretical constructs and the 20/20 vision of hindsight, was quite fair and reasonable. 

It has been submitted to me in relation to notice, of which none was given, that this was not a case that fell within s 170DB(1)(b) which prescribes, in effect, that notice need not be given if:

“The employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.”

That the company had tolerated horseplay that might get out of hand, that Mr Sae had previously been of good conduct, and Mr Kuoch's own part in the events have been urged upon me as reasons why the conduct, if it be regarded as serious enough to be a valid reason within s 170DE(1), should nevertheless be viewed as insufficiently serious to fall within s 170DB(1)(b).  On the facts of this case it is not necessary for me to decide it, but I am inclined to the view that there can be such cases.  However, this is not one of them.  The company evidently wished to bring home to its entire workforce that matters such as the throwing of knives, violence on the job and aggression towards other employees would not be tolerated.  Mr Sae's conduct was of a kind which at common law would justify the summary termination of his employment by his employer and, as such, in my view it necessarily falls within the description of s 170DB(1)(b).  Hence, Mr Sae had no entitlement to notice.

In the circumstances I regret that my decision is that the decision of the judicial registrar should be quashed and Mr Sae's application for relief from the Court should be dismissed.

Associate:

Dated:              1 August 1997