Borg, Frank v South Pacific Tyres [1997] FCA 808

Borg, Frank v South Pacific Tyres [1997] FCA 808

The respondent discharged its onus of proving on the balance of probabilities that the applicant bit Mr Elton-Bott and was the aggressor in the incident. The respondent had a workplace policy under which an identified aggressor in a fight could be terminated, investigated the matter, involved the union, checked the witness account when doubt was raised, and gave the applicant an opportunity to respond. Dismissal for that misconduct was a valid reason and was not harsh, unjust or unreasonable.

Jurisdiction
Australia
Judgment Date
20 August 1997
Procedural Posture
Application Under S 170 EA of the Workplace Relations Act 1996 (cth) for Reinstatement Following Alleged Unlawful Termination / Final Judgment After Hearing; Application Dismissed
Outcome
The application is dismissed.
Legal Topics
['unlawful Termination' 'serious Misconduct' 'valid Reason for Dismissal' 'workplace Fighting Policy' 'opportunity to Respond' 'reinstatement']
['industrial Law' 'employment Law'] ['unlawful Termination' 'serious Misconduct' 'valid Reason for Dismissal' 'workplace Fighting Policy' 'opportunity to Respond' 'reinstatement']

Case Brief

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Procedural Posture

Application Under S 170 EA of the Workplace Relations Act 1996 (cth) for Reinstatement Following Alleged Unlawful Termination / Final Judgment After Hearing; Application Dismissed

Legal Issues

  1. 1 ['Whether the applicant bit Mr Elton-Bott and was the aggressor in the workplace incident.' 'Whether the respondent had a valid reason to dismiss the applicant for misconduct under its no fighting in the workplace policy.' 'Whether the respondent properly investigated the incident and gave the applicant an opportunity to respond.' 'Whether the dismissal was harsh, unjust or unreasonable by reference to cl 22.6 of the Rubber, Plastic and Cable Industry - General Award 1996.']

Ratio Decidendi

The respondent discharged its onus of proving on the balance of probabilities that the applicant bit Mr Elton-Bott and was the aggressor in the incident. The respondent had a workplace policy under which an identified aggressor in a fight could be terminated, investigated the matter, involved the union, checked the witness account when doubt was raised, and gave the applicant an opportunity to respond. Dismissal for that misconduct was a valid reason and was not harsh, unjust or unreasonable.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']