Willenberg v Major Furnace and Engineering Pty Ltd [1996] IRCA 617

DECISION NO:617/96 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - misconduct - deliberately or recklessly driving a forklift in an unsafe fashion - honest belief held by employer on reasonable grounds - adequate investigation Workplace Relations Act 1996 ss.170DC, 170DE, 170EA, 170EDA CASES: Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996)

Briginshaw v Briginshaw (1938) 60 CLR 336

Kerr v Jaroma Pty Limited (unreported, IRCA, Marshall J, 7 October 1996)

Nettlefold v Kym Smoker (unreported, IRCA, Lee J, 4 October 1996)

Fargie v Freedom Foods (unreported, IRCA, Parkinson JR, 14 October 1996)

Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366

State of Victoria & Ors v Commonwealth of Australia (1996) 138 ALR 220

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Nicolson v Heaven and Earth Galleries Pty Limited (1994) 1 IRCR 199 WILLENBERG & AMWU -v- MAJOR FURNACE AND ENGINEERING PTY LTD No. VI-1633 of 1996 Before: Ryan JR Place: Melbourne Date: 4 December 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1633 of 1996 B E T W E E N : ROGER CRAIG WILLENBERG & AMWU Applicants AND MAJOR FURNACE & ENGINEERING PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 4 December 1996 THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1633 of 1996 B E T W E E N : ROGER CRAIG WILLENBERG & AMWU Applicant AND MAJOR FURNACE & ENGINEERING PTY LTD Respondent Before: Ryan JR Place: Melbourne Date: 4 December 1996 REASONS FOR JUDGMENT (Ex tempore - revised from the transcript) It is not necessary in this ex tempore judgment to summarise the facts or the disputed versions of certain factual aspects. The evidence of Mr Lee, and most particularly the evidence of Ms Becker, lead me to conclude that they entertained an honest belief on reasonable grounds that the Applicant had driven a forklift deliberately or recklessly in an unsafe fashion and had knocked Mr Moore into a steel rack. I accept the evidence of Mr Lee and most particularly Ms Becker that the Applicant did not give any reasonable explanation or any explanation at all as to what had occurred. Mr Lamont also gave evidence that the Applicant did not explain or give his version of the incident on 3 April 1996. The Applicant gave unsatisfactory, evasive and imprecise evidence on whether he explained what had happened or whether he defended himself in relation to the incident. Mr Moore also gave evidence which displayed very little recall of matters of which one would expect clear recall. He has changed his evidence on several occasions. His explanation in Court today as to why he reported the incident is inherently unlikely. It is far more likely that he reported the incident because he was angry and upset and believed that the Applicant had either deliberately or recklessly driven the forklift in a dangerous manner and had struck him with the forklift, or with the timber on it. The Court accepts the evidence of Messrs Hoskin, Lee and Ms Becker as to how Mr Moore reported the incident. The Court has concluded that · on the basis of that report by Mr Moore · on the basis of the evidence, sparse though it was, of Mr Lamont and · on the basis of the approach taken by the Applicant that Mr Lee, Ms Becker and the Managing Director of the Respondent company entertained an honest belief reasonably held that the Applicant had driven a forklift deliberately or recklessly in an unsafe fashion. There are numerous other inconsistencies and conflicts in the evidence of the Applicant and his two witnesses. Where there are evidentiary conflicts between the evidence of the Applicant and Respondent witnesses, the Court unhesitatingly accepts the evidence of the latter. Both Mr Moore and Mr Lamont signed Exhibit R11.1 where the accident or incident is described as follows: Forklift load struck employee, driver admits visual contact with the employee. Employee Brian Moore and witness Stan Lamont suggest the driver intended to at least frighten the struck employee. I accept that Mr Moore has reading difficulties but I do not accept that he signed Exhibit R11.1 under duress. The Court also notes that the Applicant signed Exhibit R9 which is headed, "Termination Summary", and he signed immediately below the following statement: Deliberately endangering a fellow employee by driving a forklift towards him until contact was made. I am satisfied given the "honest belief/reasonable grounds" test in Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996) and, for that matter the balance of probability onus outlined in Briginshaw v Briginshaw (1938) 60 CLR 336 that the Respondent held an honest belief on reasonable grounds. In particular I note the following in Sangwin: Where the dismissal is based upon the alleged misconduct of the employee the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as it was within its power before dismissing the employee it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances, it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged and that taking into account any mitigating circumstances either associated with the misconduct or the employee's record such misconduct justified dismissal. I am satisfied that the Respondent met all of the criteria there cited. The Court in particular takes account of the opportunities given to the Applicant to respond to the allegations made against him and takes into account the signing of Exhibit R11.1 by Mr Moore and Mr Lamont and Exhibit R9 by the Applicant. I should also add that the Court takes into account the evidence of Mr Lee as cited by counsel for the Respondent on page 34 of the transcript, lines 9-18. The Court has not called for or accessed a transcript but I accept counsel's reading as an accurate record of Mr Lee's evidence as to what he considered in respect of reasonable grounds. The test is one of honest belief of serious misconduct on reasonable grounds after sufficient inquiry. The test was stated by von Doussa J after analysing the relevant authorities as follows: They (the authorities) lead me to the view that Section 170EDA(1) should not be construed so as to exclude from the notion of a valid reason an honest belief held on reasonable grounds by the employer after inquiry of the type envisaged in Bi-Lo Pty Limited v Hooper that a state of fact exists which justified termination of employment. In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of Section 170EDA(1) exists for terminating the employment of the employee. The Applicant never explained at any time

· why he had not slowed down

· why he had not tried to slow down

· why he had not tried to stop

· why he had not tried to warn Mr Moore and

· why he had not taken evasive action. The Applicant did not raise at any time prior to thgis hearing

· that a reason for him failing to take appropriate action included that he had not been adequately trained in using the forklift

· that the parking light on the forklift was defective

· that the mirrors on the forklift were absent or incomplete

· that the hand brake was defective

· that the beacon was defective or

· that the forklift did not have a horn There is nothing in Kerr v Jeroma Pty Limited (unreported, IRCA, Marshall J, 7 October 1996) or in Nettlefold v Kym Smoker (unreported, IRCA, Lee J, 4 October 1996) or in Fargie v Freedom Foods (unreported, IRCA, Parkinson JR, 14 October 1996) which lead the Court to a contrary conclusion. There is nothing in the analysis of Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366, State of Victoria & Ors v Commonwealth of Australia (1996) 138 ALR 220 and Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, in Kerr's case, or in Nettlefold which leads the Court to a contrary conclusion. The Court has no doubt that there was a valid reason for the termination, a reason that was defensible and sound and well founded within the terms of Selvachandran v Peteron Plastics Pty Ltd. The Court has no doubt that the Respondent entertained an honest belief on reasonable grounds of serious misconduct within the criteria set out in Sangwin v Imogen. I also find that the Respondent complied with s170DC; indeed, that follows from what I have said about adequate investigation, and I am perfectly content to rely on what the Chief Justice had to say about s170DC in Nicolson v Heaven and Earth Galleries Pty Limited (1994) 1 IRCR 199 at 209. It follows from what I have said that this application must be dismissed and it is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding 6 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 17 December 1996 Ms Penny Flint, solicitor, for the Applicant and AMWU. Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr Stuart Wood Date of hearing: 31 October 1996, 1 November 1996 and 4 December 1996 Date of judgment: 4 December 1996