WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH

APPLICANT

-v-

INGHAMS ENTERPRISES PTY LTD

RESPONDENT

CORAM COMMISSIONER S J KENNER

HEARD FRIDAY, 24 JUNE 2005

DELIVERED MONDAY, 15 AUGUST 2005

FILE NO. CR 47 OF 2005

CITATION NO. 2005 WAIRC 02347

Catchwords Industrial law - Termination of employment - Harsh, oppressive and unfair dismissal - Whether conduct of applicant's member jusitifed summary dimissal by respondent employer - Principles applied - Summary dismissal justified - Conduct of applicant's member sufficiently serious - Occupational health and safety considerations - Applicant's member not harshly, oppressively and unfairly dismissed - Application dismissed - Industrial Relations Act (WA) 1979 s 26, s 29(1)(b)(i)

Result Order issued

Representation 

Applicant Mr L Gandini of counsel

Respondent Mr J Brits of counsel

Reasons for Decision

1                     This application is one referred pursuant to s 44(9) of the Industrial Relations Act 1979 (“the Act”) following conciliation which was unavailing in resolving the matter between the parties.

2                     The issues in dispute in this matter are set out in summary form in the memorandum of matters referred for hearing and determination which is in the following terms:

1. The applicant is in dispute with the respondent over the termination of its member, Ms Tigest Teklehamawite.

2. The applicant says Ms Teklehamawite was employed as a packer by the respondent for approximately three and a half years.

3. The applicant says that on or about Tuesday 8 March, 2005 Ms Teklehamawite was involved in an incident with another employee.  During the incident she was allegedly slapped across the face by the other employee and sought to defend herself.

4. The applicant further says that Ms Teklehamawite reported the incident to the respondent and, along with the other employee, was stood down pending the outcome of an investigation.

5. Following the investigation Ms Teklehamawite was advised by the respondent’s Mr Andrew Streeter that the version of events as outlined by the other employee involved in the incident had been preferred to hers and as such her employment was terminated effective immediately.

6. The applicant complains that Ms Teklehamawite was not given any explanation as to the basis upon which the respondent reached the conclusion it did nor was she afforded the opportunity to be represented by an official of the applicant.

7. The applicant contends that the termination was in all the circumstances harsh, oppressive and unfair and seeks the reinstatement of Ms Teklehamawite or in the alternative the fixing of an appropriate level of compensation by order of the Commission.

8. The respondent wholly denies the applicant’s claim and opposes the orders sought.”

Evidence

3                     The principal witnesses on behalf of both the applicant and the respondent were the protagonists to the altercation they being Ms Tigest Teklehamawite (“Tigest”) and Mr Melese Melaketeh (“Melese”).  Additionally, Mr Streeter, the respondent’s night shift superintendent was also called.  By consent, a number of statements of witnesses to the incident prepared by Mr Streeter were tendered as exhibit R4.

4                     The events in issue occurred on the evening of 8 March 2005.  Tigest was working on the thigh line at the respondent's processing facility at Osborne Park, Western Australia.  The respondent is engaged in the industry of the processing of chickens for retail sale.  Both Tigest and Melese were working in or about the thigh line on this particular evening.  Tigest was engaged in various duties including trimming fat from the chicken thighs with scissors.  Melese was working in the drumstick area.  In this area, both cartons and crates are used for the purposes of storing both product and waste.  Likewise, in the work that Tigest was performing, she also used crates and cartons.

5                     Shortly after the commencement of the shift, Tigest testified that she was arranging her crates to commence her work when Melese kicked her crate away from where she had placed it on the floor.  Tigest, who testified that she rarely spoke to Melese, tried to ask politely why he had done this, that she needed the crate and pushed it back with her hands.  She testified that Melese then kicked the crate back towards her hitting her in the ankle.  Tigest said she then spoke in her native language words to the effect “let your mother eat stone” and Melese swore back at her using profane language and slapped her with an open hand on her right cheek.  When this occurred, Tigest testified she grabbed at Melese with her hands, as she put it “to get what she could”.  As she was doing this, she had her scissors in one of her hands at that time.  She said Melese, as she was doing this, had one hand on her chin and neck area and one other on her wrist of her other arm.  It was at this stage, that another employee came over and pushed the two of them apart. 

6                     According to Tigest, the exchange was very quick and was over in a matter of seconds.  Tigest denied that she swore at Melese, as it was not in accordance with her cultural background.  Tigest admitted she was waving her hands and arms around at this time and agreed that it was dangerous to attempt to grab at Melese in this way when she had a pair of scissors in hand.  In cross-examination, Tigest accepted that it did not cross her mind to move backwards and withdraw from the altercation and also conceded that she was not defending herself at that time, although she was reluctant to concede that she was in anyway attacking Melese.

7                     Immediately after the incident, Tigest went to the office and reported the matter to her supervisor.  She was informed to return to work however Tigest said she wanted to go to a doctor because she had been slapped.  She did so and tendered as exhibit A2 a bundle of workers compensation medical certificates, referring in particular to a soft tissue contusion to Tigest’s right cheek.  Tigest testified that she gave these medical certificates to the respondent on her return.  She denied that she had at any stage during the altercation attacked Melese or that she intended to kick Melese.

8                     The version of events as recounted by Melese in his testimony were somewhat different.  At the outset, he testified that he is from Ethiopia and Tigest is from Eritrea which areas have a long history of conflict.  Melese also testified that there were some family conflicts between both he and Tigest.  It was in this context that Melese testified that prior to the events in question, whenever he and Tigest had worked in the same vicinity she had caused problems for him.

9                     Melese said that he was setting up for the night’s work and was required to put crates on the ground on which boxes were placed to store drumsticks.  He said that he found Tigest had placed her crate in his work area and he pushed it across towards her with his leg.  Tigest then asked him why he had done that and she kicked the crate back towards him and swore at him in her native language.  He then said that Tigest then attacked his face and he attempted to defend himself by holding her wrists with his hands, up near her face level.  He was attempting to push Tigest away when another employee intervened and separated both of them.  Melese denied that he slapped Tigest or attempted to strike her.  Also, he denied that he swore at Tigest and said he did nothing to antagonise her.  He was not aware that Tigest held a pair of scissors in her hand when she was attacking him, on his version of the events.  Melese also confirmed that the incident was over in only some seconds and he did not retreat because the events occurred so quickly.  After the incident, Melese returned to his duties as before. 

10                  Mr Streeter conducted an investigation into the incident involving interviewing both Tigest and Melese, and those who witnessed the events.  Mr Streeter’s written notes of these interviews were tendered as exhibit R2, with the typed written versions being exhibit R4.  Mr Streeter testified that all witnesses referred to Tigest attacking Melese towards his face and referred to her having scissors in her hand.

11                  In his interview with Tigest, Mr Streeter said she informed him that Melese slapped her in the face first, after the incident with the crate.  He suspended Tigest on full pay pending the investigation and informed her it was a serious matter and loss of her employment was a possibility.  Mr Streeter then interviewed Melese.  He denied that he slapped Tigest and said that Tigest attacked him in the first instance.  After taking notes of the interview with Melese, Mr Streeter also informed him that the incident was serious and his employment was at risk.  After interviewing Tigest and Melese, Mr Streeter re-interviewed “Lula”, a witness, because she was the only witness who referred to Melese slapping Tigest.  After considering all of the witness statements and the versions of events advanced by both Tigest and Melese, Mr Streeter concluded that it was more likely than not that Tigest was the attacker in the altercation.  As to the slapping allegation, Mr Streeter said that the weight of evidence was against this, but even if there was a slap by Melese that would not have had any bearing on his decision to terminate Tigest's employment because of the nature of her attack on Melese. He did say however that this may have influenced his decision making about whether Melese should be dismissed also.  He concluded that the available evidence to him as a result of his investigation was that Melese was defending himself against the attack from Tigest.

12                  In cross-examination, Mr Streeter testified that in the case of Tigest he considered alternative options such as a transfer or demotion but decided in light of the events, from a health and safety point of view, these were not viable options.  In particular, Mr Streeter said that he considered the nature of the work environment where employees use sharp knives and scissors, generally in confined spaces, and concluded that Tigest's conduct was inconsistent with maintaining a safe work environment.  Mr Streeter, in terms of the process followed in the investigation, said he did not consider that cl 7- Disputes Procedure of the Inghams Poultry Production (Osborne Park) Enterprise Agreement 2004 (“the Agreement”) applied to the present circumstances.

Consideration

13                  In dealing with this application, as with all matters of this kind, the Commission is required to have regard to all of the circumstances of the case as s 26 of the Act plainly requires.  It is not the case in incidents of fighting in the workplace, that there is an automatic presumption that such misconduct will always result in a justified dismissal.  As was said by the Full Bench of this Commission in Mt. Newman Mining Co. Pty. Limited v The Australian Workers Union, West Australian Branch, Industrial Union of Workers (1983) 63 WAIG 2397, the conduct complained of must be judged on its merits pursuant to s 26 of the Act.  No doubt in making assessments of acts of misconduct in such circumstances, issues such as provocation and whether any response to it is reasonably proportionate or not, will be relevant considerations. There cannot be any hard and fast rule in such circumstances, because each case will depend entirely upon its own facts.

14                  Given that the dismissal was summary, the respondent accepted the obligation upon it to establish the basis for the exercise of its right to summarily dismiss: Newmont Australia Ltd v The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1988) WAIG 677.

15                  In this case, there was a conflict on the evidence between Tigest and Melese.  I have carefully considered their testimony, along with the other evidence led in these proceedings.  Where there was a conflict, I prefer the evidence of Tigest to that of Melese, at least to the extent that I do not accept that Tigest attempted to strike Melese without any form of physical or verbal act by him in the first instance.  In my opinion, it simply defies commonsense that Tigest would attack Melese without any reason at all.   On the evidence, I accept and I find that as a consequence of the pushing of the crate between Tigest and Melese, there was a brief verbal exchange between them initiated by Melese and responded to by Tigest. The independent evidence by way of witnesses who saw Tigest described her physical actions variously as “flailing arms”; “grabbing for his face”; “she was clawing at him like a cat”; “flailing her arms around”; and “she was attacking him”.  Additionally, there is independent medical evidence by way of workers compensation medical certificates, that tend to support that there was some contact with Tigest’s face to cause a soft tissue injury to her right cheek.  That evidence does not establish of itself, that Melese slapped Tigest in any initial exchange, as there may have been subsequent contact with her face during the struggle.  Nonetheless, it is supportive of such a conclusion and in my opinion would more readily explain Tigest's response to Melese, as described by both Melese and the various witnesses to the events.

16                  Apart from the initial slap however, I am satisfied that Melese, on the evidence before the Commission, thereafter undertook to defend himself from Tigest's actions.  It is not insignificant to observe that in her own testimony, Tigest did not suggest she was defending himself.  On balance, I am of the opinion that the evidence leads to the conclusion that Tigest was attacking Melese in the manner described.  This circumstance was clearly exacerbated by the fact that at the time, Tigest had a pair of scissors in one of her hands and the risk of injury, including serious injury, is readily apparent.  I accept on all of the evidence, that Tigest was indeed flailing her arms around in an uncontrolled manner which could have had very serious consequences for Melese, had she made contact with his face or indeed any other part of his body for that matter, with a pair of scissors, which were no doubt sharp and used for work purposes.

17                  The health and safety considerations taken into account by the respondent in this matter are extremely important in my opinion, in the context of a work environment in which there are sharp objects such as knives scissors present.   Additionally, I accept that employees of the respondent are required to work in confined spaces. Any uncontrolled behaviour by any employee in possession of such sharp instruments, whether wittingly or unwittingly, is an extremely serious issue.

18                  Whilst I have reservations as to the leniency of the treatment by the respondent of Melese in circumstances where in my view it should have been apparent that there was at least some provocation by him, I cannot conclude on all of the evidence, given the gravity of Tigest's conduct and her disproportionate response to Melese's behaviour, that she has been dealt with unfairly.  Whilst it is true that both Tigest and Melese have good employment records, the circumstances of the incident as it occurred on the day in question were serious and in my opinion, in particular having regard to the occupational health and safety considerations, sufficiently so such that the Commission should not interfere with the employer's decision on this occasion.

19                  Finally, whilst in my view it is strongly arguable the terms of cl 7 of the Agreement did apply to the present dispute, all of the circumstances must be considered.  Procedural fairness can be an important consideration in matters of this kind, but one must also consider whether ultimately, strict compliance with any procedural requirement would have made any difference to the result: Shire of Esperance v Mouritz (1991) 71 WAIG 891.  In this case I am not persuaded that even if there had been strict compliance with the terms of cl 7 of the Agreement that the outcome would have been any different in this case.  There was no real suggestion that Tigest did not have a proper opportunity to put her version of the events as they transpired or that the respondent did not consider alternatives to dismissal, which it clearly did in this case.

20                  Accordingly, the application is dismissed.