Chanthaly Siharath v BOC Gases Australia Limited

[1995] IRCA 691

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - misconduct

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE, 170DC

No. SI 95/1257

ANOUROM VILAYTHONG -V- BOC GASES AUSTRALIA LIMITED

and

No. SI 95/1261

CHANTHALY SIHARATH -V- BOC GASES AUSTRALIA LIMITED

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  21 DECEMBER 1995
INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No SI 95/1257

B E T W E E N:

ANOUROM VILAYTHONG

Applicant

- and -

BOC GASES AUSTRALIA LIMITED

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           21 DECEMBER 1995

THE COURT ORDERS THAT:

1. The Respondent reinstate the Applicant to his former position within 21 days.

1. The Respondent pay to the Applicant the remuneration he has lost as a result of the termination of his employment.

1. Liberty to apply with respect to Order No. 2.

NOTE:   Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No SI 95/1261

B E T W E E N:

CHANTHALY SIHARATH

Applicant

- and -

BOC GASES AUSTRALIA LIMITED

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           21 DECEMBER 1995

THE COURT ORDERS THAT:

The Applicaton is dismissed.

NOTE:   Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT  REGISTRY          )

No. SI 95/1257

B E T W E E N:

ANOUROM VILAYTHONG

Applicant

- and -

BOC GASES AUSTRALIA LIMITED

Respondent

AND

No SI 95/1261

B E T W E E N:

CHANTHALY SIHARATH

Applicant

- and -

BOC GASES AUSTRALIA LIMITED

Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :21 DECEMBER 1995

REASONS FOR JUDGMENT

These two applications pursuant to Section 170EA of the Industrial Relations Act arise out of the one factual situation. I therefore ordered that they be heard together. Both Applicants seek reinstatement.

The facts

Both Applicants were employed by the Respondent as Production Co-ordinators at its plant at Torrensville.  Mr Vilaythong had been employed since 29 June 1987.  Mr Siharath had been employed since 26 October 1993.

Up until late 1994 the Applicants were friends.  In late 1994 a personal conflict arose between them.  That conflict was carried over into the work place.  Mr Siharath received a written warning about his conduct toward Mr Vilaythong in December 1994.In March 1995 both Applicants were counselled by their respective Unions’ shop stewards following a verbal altercation between them.

On the afternoon of 16 June 1995 the Applicants had a series of altercations between them.
At the end of that day’s work an incident took place in the shower block of the Respondent’s premises.  Both Applicants gave evidence that they were physically assaulted by the other and that they did no more than attempt to restrain the other during the assault.

Mr Vilaythong contacted the Manager of the Respondent, Mr Nicholls, shortly afterwards to complain of the assault against him.  Mr Siharath was asked to give a statement the following day.  Statements were also taken from Mr Brooks and Mr Nobbs who witnessed the event of the afternoon.  Mr Nobbs had also been in the adjoining room during what had taken place in the shower block.  Mr Nobbs had seen both Applicants following the incident in the shower block and had spent some time with Mr Siharath.  He was also shown by Mr Siharath what Mr Siharath said had happened.

On balance I find as a fact that Mr Vilaythong was assaulted by Mr Siharath in the shower block and he did no more than attempt to restrain Mr Siharath during the assault.  His version of events was more plausible and more consistent with the physical signs of the incident that is, the bruising present on both Applicants following the incident.  Other than some minor discrepancies in the statement he gave Mr Nicholls, all his conduct following the incident in the shower block was consistent with him having been the victim of an assault in the shower block.

Both Applicants were interviewed after Mr Collins and Mr Nicholls had obtained the four statements.  Both Applicants were told that their statements conflicted.  Neither Applicant was told precisely what the other had said.  They were both given the opportunity to respond at that stage to the allegations against them.

On Monday 19 June 1995 following discussions between Mr Nicholls and Mr Collins and the Union representative of each Applicant, the Applicants were separately interviewed, with their Union representatives present.  They were given a further opportunity to speak and told their employment was to be terminated.  The Respondent allowed both Applicants to resign, to assist them in gaining future employment, however the Respondent did not dispute that this was a termination of the Applicants’ employment at its initiative.

S.170DC

It was put in argument that the Respondent had not met its obligations to each Applicant pursuant to S.170DC because the statement of each Applicant was not put in any detail to the other. I do not accept that argument. In my view the failure to put the detail of the conflicting statements does not breach S170DC of the Act. In addition the Applicants were given an opportunity to respond at the interviews at which their employment was terminated.

Was there a valid reason for termination of the Applicants’ employment?

Given the facts I have found in relation to the incident in the shower block, the termination of Mr Vilaythong’s employment was indefensible and unlawful.  In my view the employer should have established Mr Vilaythong’s innocent involvement by considering two matters, both of which were known to them at the time of the termination of his employment.  Those two matters were:-

1. The consistency of both Applicants physical injuries with Mr Vilaythong’s version of events and the inconsistency of Mr Vilaythong’s injuries with Mr Siharath’s version of events.

1. The lack of plausibility of Mr Siharath’s version of events in the shower block.

In relation to Mr Siharath it is my view that the termination of his employment was for a valid reason.  There can be no explanation for the injury to Mr Vilaythong other than that he committed an act of violence against him.  I have considered the Respondent’s policy regarding violence, the reasons for that policy and Mr Siharath’s knowledge of that policy in coming to my conclusion.

Was the termination of Mr Siharath’s employment harsh unjust or unreasonable?

Given the seriousness of his conduct, the warnings that Mr Siharath had received, the injury suffered by MrVilaythong, it is my view that the termination of his employment was not harsh unjust or unreasonable.I therefore dismiss the Application of Mr Siharath.

Remedy

There was no convincing evidence as to why Mr Vilaythong should not be reinstated.  I therefore Order his reinstatement.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING             :          29 and 30 November, 1 December 1995

FOR MR SIHARATH             :          Mr Kane

FOR MR VILAYTHONG       :          Mr Blewett

FOR THE RESPONDENT      ;          Mr Short