ALHMWU New South Wales Branch (o-b Malcolm Koopman) v Tasman Insulation Australia Pty Ltd

Industrial Relations Commission of New South Wales CITATION: ALHMWU New South Wales Branch (o-b Malcolm Koopman) v Tasman Insulation Australia Pty Ltd [2006] NSWIRComm 1046 PARTIES: APPLICANT ALHMWU (o/b Malcolm Koopman) RESPONDENT Tasman Insulation Australia Pty Ltd FILE NUMBER(S): 2984 of 2005 CORAM: Macdonald C LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 HEARING DATES: 05/12/05, 06/12/05 DATE OF JUDGMENT: 05/04/2006 LEGAL REPRESENTATIVES: APPLICANT Mr M Vance (union official) RESPONDENT Mr A Price (Industrial Advocate) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 4 May 2006 Matter No IRC 2984 of 2005 Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch (on behalf of Malcolm Koopman) and Tasman Insulation Australia Pty Ltd Application by Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch on behalf of its member Malcolm Koopman re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1046 1 The Commission has before it an application by Malcolm Koopman ("the Applicant") for unfair dismissal against Tasman Insulation Australia Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The Applicant was represented by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch ("the Union"). 2 The matter was set down for Conciliation and Directions on 28 June 2005. The matter remained unresolved and was set down for a Hearing on 5 December. A filing program for witness statements was put in place. 3 The Hearing did not conclude on 5 December, but on the next day, 6 December, for the giving of Final Submissions. 4 At the Hearing, the Union was represented by Mr M Vance, Industrial Officer, who called the following witnesses: · Malcolm Koopman - the Applicant · Daryl Marshall - Union co-delegate · Wayne Murray - Union delegate The Respondent was represented by Mr A Price, Senior Adviser, Australian Industry Group, who called the following witnesses: · Leslie Galea - contract cleaner for the Respondent · Geoffrey Goldstone - manufacturing manager · Robbie Hirst - production supervisor · David Morters - batch house operator · Colin Potts - Plant superintendent · Rodney Duck - shift supervisor BACKGROUND 5 The Applicant had been in the employ of the Respondent since 1999. His duties included maintaining the day to day cleaning of the site, along with one other directly employed cleaner. 6 The Respondent utilises a private contract cleaner (Les Galea) to perform cleaning duties at the factory. Commencing from the beginning of 2005, the Applicant occasionally worked for Mr Galea - helping him clean the plant. When the Applicant worked for Mr Galea, he was directed as to the duties to be performed and was paid by Mr Galea. 7 The Applicant agreed to perform cleaning duties for Mr Galea on Saturday, 21 May 2005. There were four other employees of the Respondent working for Mr Galea that day. 8 One of the cleaning duties performed that day was cleaning dust from the top of an oven with an air hose. The oven is about 8 metres high. 9 The air hose provided by Mr Galea was not long enough for the oven cleaning job. The Applicant disconnected and utilised a longer air hose but one that might be used by some other cleaner. 10 Whilst using this air hose, the Applicant said it was suddenly shut off. He would climb down to turn the hose on again. He said he suspected the air hose was being turned off at the tap by Dave Morters, whom he described as a practical joker. The hose was suddenly shut off twice. Having turned the tap on for both sudden shut offs, Dave Morters called out to the Applicant for the hose. The Applicant said he not be much longer. The hose shut off for a third time, according to the Applicant, who turned it back on. 11 A Mr Ron Duck (supervisor) also enquired after the hose and the Applicant said that he was on his last bit of work and would reconnect the hose as soon as he was finished. 12 Dave Morters appeared and said he wanted the hose. The Applicant said he was very annoyed. He disconnected the hose from on top of the oven. He tossed the air hose and a small screwdriver (about 15 centimetres in length) down the side of the oven to ground level, the Applicant said. 13 The Applicant climbed down from the oven and was met by Dave Morters who was very angry and allegedly shouted at the Applicant: " What the fuck are you doing ?" I replied: " What did I do ?" Morters said: " You threw the screwdriver at me you prick ." 14 The Applicant said he and Morters were swearing at each other and pushing one another in the chest. Morters allegedly said they should go offsite. The Applicant took this to mean, have a fight offsite. Ron Duck (supervisor) intervened and pushed the two apart. 15 Later the Applicant went to the office to discuss the matter with Ron Duck and Tony Peps (leading hand/supervisor). Ron Duck allegedly insisted that the Applicant had thrown the screwdriver at Morters and it nearly hit him. The Applicant denied this. 16 On Monday, 23 May, the Applicant was called to the meeting room. Colin Potts (superintendent) and Geoff Goldstone (site manager) were in the room. Mr Goldstone raised the throwing of the screwdriver at Dave Morters. The Applicant denied he did and explained Saturday's events. 17 During this meeting, the Union delegate, Wayne Murray, knocked on the door and entered the room. Mr Goldstone allegedly ordered him from the meeting room: " Wait outside, you're not needed here ." 18 Mr Goldstone also raised a separate issue about a cleaning job the Applicant had done on or about 12 May. The Applicant had made a mistake which had upset the filtering process. The Applicant said he felt confused when this issue was raised by Mr Goldstone and also felt he would be in bigger trouble if he admitted to the mistake. He therefore denied being the cause of the error. He deposed he had made an error of judgment in making this denial and put it down to a feeling of being threatened and intimidated by Messrs Goldstone and Potts. 19 Mr Goldstone offered the Applicant the choice of resignation or dismissal. The Applicant said he felt pressured to resign. FINAL SUBMISSIONS For the Applicant 20 Mr Vance put the following in final submissions: (a) The dismissal was unfair because it was out of proportion to the alleged wrongdoing. (b) The dismissal was unjust because the matters relied upon by the employer to justify the dismissal did not occur in the way assumed by the employer. (c) The Applicant was provoked by Dave Morters who consistently demanded the return of his air hose. Morters had given evidence under cross-examination that he had pushed the Applicant first, after the Applicant had descended from the oven. Further, no blows were exchanged between the Applicant and Morters. (d) The Applicant's resignation letter was, in reality, a constructive dismissal. In that regard, Goldstone's witness statement states: "I made the decision the applicant's employment relationship had come to an end." As well, the Applicant had no option but to resign. (e) If the Commission finds that the dismissal was constructive, then it should also find that the dismissal was summary. No pay, in lieu of notice, was itemised in his termination payout. (f) The Applicant had made a judgment error in not acknowledging a work mistake of his made on 12 May. But he did acknowledge his mistake before being dismissed. A failure to acknowledge a mistake at first instance, is not a satisfactory reason for termination. (g) The Respondent had not, strictly speaking, followed its own disciplinary procedure. (h) The Applicant's evidence was that he threw the hose and screwdriver to the ground adjacent to the oven with the one hand. That being so, it is unlikely that the hose plus screwdriver would be thrown at Morters. It is more likely that the screwdriver bounced off the floor, or hose or something else, towards Morters. Morters said he was hit by the screwdriver. Ron Duck said he did not see anything thrown. The Applicant denied throwing the screwdriver. (i) The report of Ron Duck of the incident was not in evidence. It is not known why that is the case. The Union asked the Commission to draw a Jones v Dunkel inference: that is, the report would not have assisted the Respondent. Similarly, the Respondent had not called Mr Tosh as a witness, yet he had seen the incident. (j) The Applicant was not seeking reinstatement but compensation. He found suitable alternative employment some 16.5 weeks after the forced resignation. For the Respondent 21 Mr Price put the following in final submissions: (a) The Applicant had not been denied procedural fairness. Mr Goldstone had telephoned the Union delegate, Wayne Murray, at home and left a message on Murray's answering machine. Goldstone arranged for the co-delegate, Daryl Marshall, to be available if the Applicant needed his assistance. The evidence of Goldstone and Potts was that the Applicant was offered the opportunity of union representation, three times. (b) It was accepted that the resignation of the Applicant was a constructive dismissal and on the facts of the case, a summary dismissal. (c) The evidence showed, as to the substantive issue, that the Applicant had provoked Morters by taking a hose that Morters needed to do his duty, without asking Morters. (d) The hose had been asked for by Morters (about 8.00am) and the Applicant said he was nearly finished - but in reality a few hours passed with the Applicant still using the hose. Their altercation occurred around 11.15am. (e) The screwdriver had to have been thrown by the Applicant at Morters, who was standing some 8 to 8.5 metres away from the oven. The screwdriver had to have been thrown, given that (a) it had to clear the cable carrier (which was between the Applicant and Morters and close to the Applicant) and (b) in order to account for its landing about 1.5 metres in front of Morters who (c) said he saw it thrown at him by the Applicant. (f) Three witnesses gave accounts that the screwdriver landed once before proceeding in the direction of Morters. (g) Mr Leslie Galea gave evidence that he warned the Applicant twice that morning about his generally aggressive demeanour and alleged threats to "get Morters." (h) Mr Hirst gave evidence of the Applicant's propensity to settle things himself and with a propensity to do so by violent means. (i) The Jones v Dunkel submission of the Union was rejected. The Respondent had not presented certain witnesses because they were not considered central to the case. (j) The Applicant had been deliberately dishonest with management about his mistake in his job on 12 May. (k) Mr Morters had been the subject of investigation as well about that Saturday's events, and been given a final warning. (l) The Applicant showed no remorse for his conduct. The throwing of the screwdriver showed a disregard for Morters safety and Mr Galea (who was nearby Morters at the time) - given that the screwdriver is a sharp object. (m) The Respondent had not acted harshly in bringing the Applicant's employment to an end. The Respondent was opposed to any compensation. Applicant in Reply 22 Mr Vance put the following in reply: (a) The screwdriver was not thrown by the Applicant. (b) The screwdriver bounced off something and travelled in the direction of Morters. (c) There was no evidence before the Commission of the trajectory of a tossed object. CONSIDERATION Reasons for Cessation of Employment 23 Mr Goldstone, the manufacturing manager, deposed that there were two major disciplinary issues relied upon to bring the Applicant's employment to an end. These were: the second fighting incident and the contamination of the water in the plant equipment incident. The Commission will consider both issues but firstly will turn to the issue of burden of proof. ONUS 24 The Applicant resigned his employment on 23 May 2005 - during the meeting called by Mr Goldstone to discuss the two major disciplinary issues referred to above. The Union submitted that the resignation was in reality a constructive dismissal and in that regard relied upon the following extract from Mr Goldstone's witness statement: " I made the decision the applicant's employment relationship had come to an end ." (ex 6 - para 19) Mr Price, for the Respondent, conceded in final submissions that the resignation was a constructive dismissal and on the facts of the case, a summary dismissal. The Union contended, and it was not disputed, that the Applicant was given no pay in lieu of notice. 25 The Commission's approach to the consideration of this case will be based on a summary dismissal. As such the Respondent carries the onus to prove that the facts existed to support Mr Goldstone's decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84 The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant) has to prove that those facts existed, on the balance of probabilities. Given the serious allegation by the Respondent that the Applicant threw a screwdriver at another employee, there needs to be substantive evidence produced by the Respondent to show that the Applicant did indeed throw the screwdriver. This substantive evidence is required so that the Commission is comfortably satisfied that the Applicant threw the screwdriver at Mr Morters. The above standard of proof required by the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354-369, per Dixon J. First Reason for Summary Dismissal 26 The first reason for summary dismissal was deposed by Mr Goldstone as a " second fighting incident ." (ex 6 - para 19) However, this is not an accurate description. The serious allegation against the Applicant was that he had thrown a screwdriver at another employee, Mr Morters. At the time, the Applicant was standing on top of an oven in the factory. Mr Morters was standing on the factory floor and next to him was Mr Galea. Mr Goldstone "ascertained" the height of the oven as being 3.4 metres and the distance from the oven to Messrs Morters and Galea as being 8 metres. (Tr 62, line 53 to p63, line 1) 27 What was the evidence to support this serious allegation? Mr Morters claimed that: (a) he saw the Applicant throw the screwdriver " in my direction ." The screwdriver flew over a cable tray which sits about 750 millimetres off the side of the oven. (ex 9 - para 6); (b) the screwdriver bounced off the floor about 2 metres in front of Mr Morters; and (c) hit Mr Morters just above the right knee; and (d) dropped on the floor in front of Mr Morters. (Tr 11, lines 1 to 17) 28 The Applicant denied he had thrown the screwdriver at Mr Morters. It was his evidence that he had used a hose for cleaning purposes while on top of the oven. He unscrewed a copper pipe from the hose. He dropped the hose down the side of the oven. He then threw the screwdriver, with the copper pipe, down the side of the oven. (Tr 25, lines 8 to 19) As the Commission understands the evidence, the hose fell down under its own weight but at the back of the oven - that is, on the other side from Mr Morters. The screwdriver and copper pipe were thrown down the side of the oven, being the side facing Mr Morters. As well, the Applicant said he threw the screwdriver and copper pipe down the side, that is, between the oven and the cable carrier. (Tr 28, line 27 to Tr 29, line 4) (It was Mr Morters evidence that the screwdriver was thrown over the cable carrier towards him.) 29 Apart from Mr Morters assertion and the Applicant's denial, what other evidence was there to support Mr Goldstone's serious allegation against the Applicant? 30 Mr Les Galea, the contract cleaner for the Respondent, was standing alongside Mr Morters when the incident in question took place. His evidence was that he was standing side on to the Applicant - that is, with his right shoulder facing the Applicant. (Tr 40, lines 10 to 28) He said he did not witness the Applicant dropping or throwing anything off the oven top. He witnessed something hitting the ground and bouncing forward towards him and Mr Morters. He claimed that, although he had not witnessed the throwing of the object, it had to have come over the saddle (the cable carrier). Further, it bounced once and then it rolled behind where he and Mr Morters were standing. (Tr 38, lines 9 to 46) He also reported that Mr Morters had said at the time, that the screwdriver had hit him. (Tr 41, lines 29 to 33) 31 The evidence of Mr Galea then is that he did not see the screwdriver thrown at all. He sought to infer that the screwdriver had been thrown by the Applicant (at Mr Morters) because of the bounce of the screwdriver. That is, it bounced about 2 metres in front of him and Mr Morters and for the screwdriver to have so bounced some 6 metres away from the oven, then it could only have done so by being thrown over the carrier cable (the saddle). He said that " if something was thrown between the oven and the saddle ... it wouldn't have come as far as that (that is, the 6 metres), because there was too much of a distance ." (Tr 54, lines 23 to 27) Thus, he was saying that a screwdriver thrown vertically down the side of the oven (in between the oven and the saddle), could not have bounced off the factory floor and travelled 6 metres to bounce 2 metres in front of him and Mr Morters. The Commission rejects this reasoning. Mr Galea was not presented as an expert witness on the bounce and trajectory characteristics of the screwdriver in question - or screwdrivers generally. 32 The other witness who was in the vicinity when the screwdriver was allegedly thrown, was Mr Duck, the shift supervisor. Mr Duck deposed he saw a screwdriver hit the ground in front of Mr Morters who said: " The screwdriver hit me " (ex 11, para 4) Under cross-examination, he said that Mr Morters had not said, at the particular time in question, that he had been hit by the screwdriver. (Tr 134, lines 25 to 27) He had not seen the screwdriver hit Mr Morters (Tr 137, lines 29 to 31) Mr Duck did not observe the Applicant throwing the screwdriver at Mr Morters. (Tr 133, lines 13 to 20) He also observed the screwdriver bypassing Mr Morters (Tr 133, lines 43 to Tr 134, line 11) Summary of Evidence of First Reason for Summary Dismissal 33 The Respondent, in the person of Mr Goldstone, has to satisfy the Briginshaw standard of proof. That is, he has to show, by way of substantive evidence, that on the balance of probabilities, the Applicant threw the screwdriver at Mr Morters. Substantive evidence is required to prove that the Applicant carried out that conduct, because it is a serious allegation. 34 The summary of the evidence is that Mr Morters alleged that the Applicant threw the screwdriver at him. The Applicant denied doing so. There were no witnesses to the alleged throwing of the screwdriver. Messrs Galea and Duck could only give evidence about a screwdriver bouncing in front of Mr Morters (and Mr Galea who was standing nearby). Mr Galea's claim that the screwdriver must have been thrown over the cable carrier (the saddle) because a screwdriver could not bounce 6 metres away from where it had been thrown vertically down the side of the oven (as asserted by the Applicant), was rejected by the Commission. 35 The only evidence of certainty is that the screwdriver bounced in front of Morters and Galea. The screwdriver may have hit the right knee area of Mr Morters. Mr Morters said it hit him and dropped to the floor in front of him. But Galea and Duck said the screwdriver continued on and went behind Mr Morters. 36 The Commission was left to consider this incident with the only evidence being one person's word against another: Mr Morters allegation and the Applicant's denial. The credit of these two witnesses is not an issue for determining this incident. The Commission finds that the Respondent has not proven per the Briginshaw standard of proof that the Applicant threw the screwdriver (at Mr Morters). Second Reason for Summary Dismissal 37 The second reason for summary dismissal, as deposed by Mr Goldstone, was the contamination of the water in the plant equipment incident. In evidence-in-chief, Mr Goldstone said the Applicant had added a chemical to the recirculation water system, without training or authority. The chemical caused foaming in the plant. The Applicant then added another chemical, which he thought was a defoamer but which was actually a flocculent. He said the addition of the chemicals was detrimental to the business and the environment. Further, the Applicant was not trained to add chemicals to the plant in question. (Tr 58, 59 and Tr 65 to 69, (line 33) 38 The foregoing incident occurred on or around 12 May 2005. 39 At the meeting at which the Applicant was constructively dismissed, Mr Goldstone questioned the Applicant about the foregoing incident. Mr Goldstone deposed that the Applicant twice denied putting any chemicals into the plant system. Mr Goldstone deposed he left the meeting for a short time and upon his return, asked the Applicant if he had put any chemical in the plant system. The Applicant answered in the affirmative, on this third questioning. (ex 6 - paras 12 and 12A) The Applicant agreed he had denied being at fault. He said he felt confused and that he would be in bigger trouble if he admitted to his fault in adding the wrong chemicals. He deposed he had made an error of judgment at the time and could only explain that by saying he felt intimidated and threatened by the presence of Mr Goldstone and Mr Potts. (ex 1, para 26) Mr Price, in his final submission on behalf of the Respondent, put that the Applicant had been deliberately dishonest with management about his mistake on the job on 12 May. This deliberate dishonesty was relied upon for supporting the constructive dismissal. 40 The Applicant's admission of fault in his witness statement above, is put in general terms. He does not say how many times he was asked about that issue and hence the number of denials. He does not specify what chemical he wrongly inserted into the system. He does not say whether he erred once or twice. The Commission will firstly consider the Applicant's denials about his interaction with Mr Galea and alleged interaction with Mr Galea and Mr Potts when the latter allegedly first questioned the Applicant and Mr Galea as to the contamination of the plant equipment. Secondly , the Commission will then consider the Applicant's denials, at the constructive dismissal meeting, that he had inserted a chemical into and hence contaminated the plant equipment. 41 As to the first issue going to the Applicant's interaction with Mr Galea at one time and Mr Galea and Mr Potts at another time, the Applicant deposed he had by error put some liquid (a chemical) into the plant system: he thought the liquid was water. (Ex 1, para 21) He denied he had added a second chemical (to offset the first chemical he wrongly inserted.) Further, under cross-examination, the Applicant said that he spoke to Mr Galea about what he had done to the plant. He denied he was given any instructions by Mr Galea to tell Mr Potts as to what had happened. (Tr 18, lines 25 to Tr 19, line 14) 42 Mr Galea was cross-examined twice about this issue. The second lot of questioning (Tr 54, line 36 to Tr 56, line 38) " clarified " the first lot of questioning about this issue. (Tr 45, line 8 to Tr 47, line 41) Thus, the first chemical was inserted, by mistake, on 12 May 2005. The Applicant did so, without the knowledge of Mr Galea and he was supposed to wait for Mr Galea's presence before doing so. The consequence of inserting this chemical was that it caused foaming. It would seem to be the case that a second chemical was inserted, being a defoamer. The Applicant denied he had inserted the defoamer. 43 Mr Potts allegedly queried Mr Galea and the Applicant on 23 May about troubles with the water system - according to Mr Galea. Mr Galea's evidence was that he knew that the Applicant had caused the trouble and wanted him to own up to it. Mr Galea did not advise of this knowledge to Mr Potts at the time. Mr Galea allegedly asked the Applicant to come forward and own up to his mistake, a couple of times, but the Applicant did not do so. The Applicant denied being asked by Mr Galea to own up to his mistake. Finally Mr Galea, after a couple of days, told Mr Potts what the Applicant had done. 44 The evidence, in summary, is that the Applicant inserted a chemical, by mistake, into the plant system. He told Mr Galea about twenty minutes later. The Applicant denied adding a second chemical (a defoamer). The Applicant denied he had been told by Mr Galea to come forward and tell of his error after Mr Potts raised the question. As to these denials, the evidence is of one person's word against another. 45 Mr Potts gave evidence in the proceedings. His affidavit does not refer to the time when Mr Galea said Mr Potts made enquiries of Mr Galea and the Applicant about troubles with the system. Nor was he questioned in the witness box on this alleged enquiry of his to those two persons. That meant that there was no corroborative evidence in support of Mr Galea's claim that such an enquiry had been put by Mr Potts to Mr Galea and the Applicant. Accordingly, the Commission finds that the Respondent has not shown that the Applicant was dishonest when he denied putting the second chemical into the plant equipment and denied being given any instructions by Mr Galea to tell Mr Potts as to what had happened. 46 As to the second issue giving rise to Mr Price's claim of deliberate dishonesty by the Applicant, there is no dispute as to the Applicant's own admission that he was questioned by Mr Goldstone at his constructive dismissal meeting, and initially denied he had added any chemicals to the plant system but later in the meeting said he had - but only one chemical. 47 Mr Goldstone gives more detail about this denial and retraction. The Applicant denied twice that he had inserted a chemical. On the third questioning, he agreed he had. (ex 6, paras 12 and 12A) Mr Potts' affidavit confirmed the twice denial and thence the confirmation. (ex 10, paras 8 to 10) 48 The Applicant deposed he made an error of judgment in his twice denials and this was due to his being confused and feeling intimidated and threatened by Mr Goldstone and Mr Potts. The Commission will now consider his claim of feeling intimidated and threatened. 49 The Applicant deposed that during this meeting, the union delegate, Mr Murray, knocked on the door and entered the room. The Applicant was relieved to see him because of the feeling of intimidation. However, the Applicant deposed that Mr Goldstone ordered the union delegate from the room (" Wait outside, you're not needed here .") and the delegate left the room. (ex 1, paras 26 and 23) 50 Mr Goldstone deposed (ex 6) that he had been informed of the screwdriver incident on the morning of 23 May, by Mr Potts. This led to the constructive dismissal meeting on that same day. But firstly, Mr Goldstone said he telephoned the union delegate around 8.30am that day. He left a message on the answering system for him to ring Mr Goldstone to discuss the incident between the Applicant and Mr Morters. The message was left on the answering machine as the union delegate, Wayne Murray, was most likely asleep after working the night shift. 51 About one hour later, Mr Goldstone further deposed he approached another delegate (Daniel Marshall) and read to him the report of the incident. Mr Goldstone said that Mr Marshall responded: "Pretty serious issue." Mr Goldstone said he asked Mr Marshall if he could come to a disciplinary meeting with the Applicant, if the latter wanted union representation. Mr Marshall agreed to this proposal. Mr Goldstone said he'd call Mr Marshall when required. 52 Mr Goldstone deposed that he asked the Applicant at the constructive dismissal meeting if he wanted union representation and he answered in the negative. (ex 6, para 7) This affidavit evidence was not challenged under cross-examination. The Applicant did, however, in his Reply Statement deny Mr Pott's assertion that he had been asked if he wanted union representation and answered in the negative. (ex 2, para 9) 53 In summary of the evidence so far, the Applicant said that Mr Goldstone ordered the union delegate, Mr Murray, from the disciplinary meeting. Mr Goldstone said the Applicant advised he did not want union representation. The Applicant denied he was asked if he wanted union representation. Mr Goldstone also deposed he left a telephone message at 8.30am for the union delegate, Wayne Murray. And he spoke to the other delegate, Daniel Marshall, around 9.30am, and Mr Marshall was available to be a union representative, if required. The disciplinary meeting took place around 11.00am. 54 Wayne Murray gave evidence in the proceedings. His affidavit confirms that Mr Goldstone telephoned and left a message. Mr Marshall was asleep because of nightshift work. He returned the telephone call. Mr Goldstone read the incident report over the phone and said he was considering dismissing the Applicant. Mr Murray did not think that was fair. Mr Murray went to the worksite, from home, and entered the meeting room. He said he was " ordered " outside: " You are not needed, wait outside ." (ex 7) Under cross-examination, he was questioned about his attending the meeting. He said: " I knocked on the door and as I walked in, Geoff (Mr Goldstone) and Colin (Mr Potts) put their hand up and said don't bother coming in Wayne. I said, no, I had a few words to say, I said, I'm the union delegate, I should represent him. They said, no, it's all right, we don't need you, and then they just said, everything's okay, just wait outside. So I went back outside." (Tr 72, line 51 to 73, line 1) 55 The Commission notes that the tone of this conversation does not align with being "ordered" out of the meeting - as deposed by Mr Murray in his statement. More importantly, he announced his presence and his role (" I should represent him "), but received no response from the Applicant. Mr Murray was specifically asked if the Applicant made any attempt to speak to Mr Murray upon his entering the room and Mr Murray responded that the Applicant had not. (Tr 73, lines 10-12) 56 Daniel Marshall gave evidence in proceedings. He confirmed that Mr Goldstone spoke to him on the morning and read out the incident report about the Applicant and Mr Morters. He deposed he said he was available to represent the Applicant after being told by Mr Goldstone that he was going to dismiss the Applicant. Later he met Wayne Murray outside the meeting room, only to be told that Murray had entered the meeting room but was told to leave the meeting. (ex 4) Under cross-examination, he confirmed he was asked by Mr Goldstone if he would represent the Applicant and he agreed to do so. (Tr 30, lines 30-32) 57 Mr Potts gave evidence in the proceedings. He deposed that he attended the disciplinary meeting and that the Applicant was asked if he needed union representation but the Applicant responded in the negative. (ex 10, para 3) This affidavit was not challenged under cross-examination. Summary of Evidence of Second Reason for Summary Dismissal 58 The second reason for summary dismissal was the contamination by the Applicant of the water in the plant equipment incident and the subsequent alleged deliberately dishonest denials of that contamination by the Applicant. 59 Apart from considering the circumstances of the meeting room, the Commission also considered the circumstances surrounding the actual contamination of 12 May. The evidence is that Mr Galea was aware that the Applicant had inserted the chemical, by error, into the plant equipment. Where Mr Galea and the Applicant are in dispute is that Mr Galea claimed that Mr Potts approached the two of them about the contamination but the Applicant did not own up to being at fault. The Applicant denied that Mr Potts made such an approach and Mr Potts gave no evidence on this alleged approach of his. There being no evidence from Mr Potts on that issue, the Commission is unable to make a finding in support of Mr Galea's assertion. 60 The Applicant twice denied he had added a chemical to the recirculation water system, but on the third occasion he was asked, he then admitted to that conduct. The Applicant called this twice denial an error of judgement. His defence was that he felt intimidated and threatened by Mr Goldstone and Mr Potts. 61 It seems to the Commission that the evidence from the proceedings does not support the Applicant's claim. How can Mr Goldstone, as the employer, be accused of engaging in intimidating or threatening behaviour at the summary dismissal when he has contacted the two union delegates, Murray and Marshall, to advise of the screw driver incident. Indeed Mr Marshall confirmed that he was told by Mr Goldstone that he could come to the disciplinary meeting with the Applicant, if the latter required union representation. That openness by Mr Goldstone with the union delegates is inconsistent with the Applicant's claim that he felt intimidated and threatened by Goldstone and Potts. 62 The Commission has rejected Mr Murray's claim that he was ordered out of the meeting room. The tone of Mr Murray's recollection of what was said when he entered the meeting room, does not align with his claim of being "ordered" out of the meeting room. And being "ordered" out of the room is inconsistent with his evidence that he had been given an invitation by Mr Goldstone to attend the meeting, if the Applicant required union representation. 63 Accordingly, the Commission rejects the Applicant's defence that he felt intimated and threatened to explain his twice denial of having inserted a contaminating chemical into the plant equipment. 64 The consequence of rejecting the Applicant's defence that he felt intimidated and threatened by Goldstone and Potts, is that there was no such conduct by those two persons. Thus the Applicant had made two denials and did so without any intimidation or threat bearing upon his mind. The Commission accordingly finds that there was no error of judgement by the Applicant. 65 Mr Price, for the Respondent, submitted that the Applicant had been deliberately dishonest in his denials (about the contamination of the plant equipment) and this justified, as well, the constructive dismissal decision. 66 The Commission has considered the evidence surrounding the constructive dismissal meeting - that is, Goldstone's contact with the two union delegates and the meeting itself. In particular, the Commission has considered the Applicant's defence to explain his denials at that meeting and the denial of intimidation and threats by Goldstone, who conducted the meeting. Having taken on board the competing accounts as to what transpired at that meeting, the Commission finds the account given by Goldstone and Potts to be more credible. CONCLUSION 67 Mr Goldstone had deposed that there were two major disciplinary issues relied upon to bring the Applicant's employment to an end: the deliberate 68 throwing of a screwdriver by the Applicant at another employee and the contamination of the water in the plant equipment incident. 69 As to the allegation of throwing a screwdriver at another employee, the Commission found that the Respondent had not proven, per the Briginshaw standard of proof, that the Applicant had thrown the screwdriver at another employee. 70 As to the allegation surrounding the contamination of the water in the plant equipment, the Commission considered the relevant circumstances surrounding the constructive dismissal meeting. The Commission rejected the Applicant's defence that he felt intimidated and threatened by Goldstone and Potts at that meeting, in order to explain his error of judgement in twice denying Mr Goldstone's assertion that he, the Applicant, had contaminated the water in the plant equipment. The Commission accordingly found that there was no error of judgement by the Applicant. Mr Price submitted on behalf of the Respondent that the Applicant's denials were deliberate dishonest statements to management and justified the second reason for the constructive dismissal. Having considered the evidence surrounding the second reason for dismissal, the Commission declines to intervene in the constructive dismissal of the Applicant. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.