Bliss v Australian Meat Holdings Pty Ltd [1995] QIRC 71 (1995) 148 QGIG 939

938 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [31 March, 1995 31 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 939 ### ##### #### ## #### ######## ########## # ##### ###### ####### QUEENSL AND IND US T RI AL RELA TJ ONS COMM ISSION Industrial Relations Ac1 199() s. 2 95 - applicalion fo r re in statemen l D. Bliss A"-l l) Austral ia n Meat Ho ld ings Pty Ltd rSo. 131086 of 19941 COM M I SS ION ER FISH ER 21 IVl arch 1995 Reinstatement - Mi scondu ct - Ph ys ical Altercation - Injuries - Interview - Polic e Complaint - Summary Dismissal - Company 145 10_,I. DOC -- 1 of 3 -- 940 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [31 March, 1995 I' d 1 F • ss ('ompan,_ Duty of Care -- Application Policy - rocc ura, ·a1rnc . -- . Refused. DECISION The applicant in the matter. Douglas Bliss. \,_as dismissed from the position of Computer Controller \\ith Australian Meat Holdmgs Pt, Ltd on 12 September 1994. Mr Bliss commenced cmplo::, ment with the Company in February l 990 in the pos1t1on ot Sastck Controller on three months probation. At the conclusion ot the probationary period. Mr Bliss rccci,cd an innease Ill wages. He \\aS promoted to the staff position of Computer Controller_ m Apnl 1994. Mr Bliss was dismissed for misconduct as a result of engagmg rn a fight with another employee. The facts of the matter are brief. Until his promotion. Mr Bliss came under the supervision of Mrs Jan Bell who is employed b: Australian Meat Holdings (AMH) as the Cr::,o,ac Supervisor: During this period, Mrs Bell and Mr Bliss had ne,er "got along ·th other '1rs Bell said that she frequentlv complained to w1 one an . :v • • management about Mr Bliss· attitude towards her and although relations bet,,cen them improved for a few days after management had spoken to Mr Bliss. matters would soon revert to disagreement Mrs Bell also went home in a distressed state and would tell her husband. Geoff Bell. a boner at AMH, of the difficulties she was encountering with Mr Bliss. Aller Mr Bliss was promoted to the staff position he no longer came under the super, is ion of Mrs Bell. He was required. however. to regularly perfom1 work in her section. checking and rescttmg_ machines. Despite his change in status. relations between himself and Mrs Bell did not impro,e. A disagreement occurred between Mr Bliss and Mrs Bell on 6 September -1994. Whilst the details of the incident. leading to the , erbal altercation arc not relc, ant to the determmat10n ol this hearing, in the exchange. Mrs Bell, said words .to the e,fle~\-.1° Mr Bliss of "'Wh: don't you go a,,a 1 ' \\h::, don t ::,ou lca,c. Mi Bliss responded by saying \\ith \\ords to the cflcct_that !1c would not be leaving and he would be there •till the da: she died. Mr Bliss said that he reported this incident to the Assistant Works Manager. Kc, in Jones. that day but \\ ithdrew his_ complaint the next morning after deciding mernight that it was tnvial. Mrs Bell. however. ,,as obviously upset by the exchange and told her husband of it that night. In their discussions. it was decided that Mr Bell should try to talk to Mr Bliss to ad,isc him of the distress he \\as causing Mrs Bell in an attempt to rcrsuadc hirn to change his "a,s. In the event Mr Bliss was not so persuaded. Mr and Mrs Bell dc:iclcd that Mr Bell \\ould infonn !\-1r Bliss of their intention to take legal action against him. Both Mr and Mrs Bell \\ere adarn,ant tha'. the purpose of Mr Bell's approach to Mr Bliss \\as to disrnss the situation At his 1 .30 am break on 7 September 1994. Mr Bell made his first attempt to locate 'Vlr Bliss. This he could not_ do. At his next break at 8.35 am. J\1r Bell obtained his ,,ife·s perrn1ss1on to enter an unauthonscd area to find Mr Bliss. Mr Bliss \\aS stanchng on a raised ,rnlb,ay, approximately 1.5 metres abo, e a muzanrne floor. and appro'\imatel) l mc:tre from the control room door. forearm. I le was suspended as a result of his involvement in the fighL pending an in,estigation into it. Mr Bliss· e,idcnce is that he had no idea wh::, Mr Bell might be in an unauthorised area. He certainly had no knowledge that M_r Bell intended to attack him or had been seeking him out. Accordmg to Mr Bliss. he watched Mr Bell approach and \\hen Mr Bell was within a metre of him. Mr Bell simultaneously greeted him _b) saying. "So you want to gi\e the Missus a hard time." and throwmg a right hand roundhouse punch which landed on the back of Mr Bliss· head. Mr Bliss said that as Mr Bell had an enraged look onh1s face and was still rushing at him. he decided to defend h1msell b) throwino two jabs at Mr Bell. These had no effect. Mr Bliss thought about r~trcating to the control room which was about 2 metres behind him but he did not want to turn his back on Mr Bell who. Mr Bliss thought, may ha, c been carrying a knife. \1r Bliss said Mr Bell punched him a couple more times. then struck him on the nose causing him to fall backwards down the ladder to the concrete floor below. Mr Bliss \,as taken to the hospital for examination of the injuries and treatment. Although no bones had been broken. the doctors believed that he .lMd suf!cred contusions to the kidneys. The injuries were ,cry pamful causmg Mr Bliss to take time off work. On the dav of the physical altercation. the Works Manager. Ciraham Trcffo;1c. was absent from the plant at a conference. _The Assistant Works Manager. Ke,in Jones. undertook some prelim1n,ary investigations and reported the fact of the altercation to Mr l rcffone that night. \1r Treffonc returned to the plant the next day, 8 September._ ] 994_ That morning he spoke to John llughes. General Manager ot Industrial Relations, Abattoirs and Personnel and Kc,in Jones about the incident. Mr Treffone then proceeded to interview _the protagonists and other employees who were around the site of the incid;nt. It i, important to note however that there were no eye \\ itncsses to the tight. only the results of it. /\t 12.45pm Mr Trclfonc inter,icwcd Mr Bliss in the presence_ of his sister. Colleen I lortz. and Mr Jones. The purpose ot the meeting was to allO\\ Mr Bliss to explain \\hat had happened His explanation was in accord with his e\idence given to the Commission. /\fkr he had described \\hat had occurred_- Mr Treffone expressed the view that alternative measures were avail able to Mr Bliss other than to engage in a fight. He suggested Mr Bliss could have warned \1r Bell off or retreated to the control .roon_1. Both Mr Bliss and Ms l lortz were concerned about Mr 1 reffone s_ response. arguing that Mr Bliss had acted instincti,ely. m self defence. Ms l!orV claimed Mr Treffone had said Mr Bliss should not ha,c retaliated. Mr Trclfone ·s alleged reference to retaliation and his general demeanour suggested to Ms l lortz. that the Works Managcrc had accepted her brother· s explanation. l shall return to the issue of retaliation later. Aller the interview. Mr Bliss and Ms llortz proceeded to the Ipswich Police Station where Mr Bliss told the police of the assault. On their advice. Mr Bliss also made a complaint under the Peace and c,ood Hehaviour Act I 9R2 to obtain a restraining order. His action \\as prompted b:, the belief that both he and Mr Bell would continue as emplo: ees of ;\Ml!. The complaint \\aS not proceeded mth as at the da; prior to its hearing Mr Bell had not been 111 contact \\ 1th Mr \1r Bell's stor: is that on arri,ing within about 1 metre of \lr Bliss. he said. "l)oug .. l. .. '" when Mr Bliss immediate!:, attacked 111111 \\"ith a ,olle, ofpunche,. \lr Bell rccei,cd a blO\\ ,,hich cut 111111 on the \mm bo~c the result of which was that hi, face was. c,1, creel 111 blood pre, en ting him from ha, ing ckar , ision. As ,h_e fell. he hn a rail. In self defence he put his anns up m lrnnt ol 111stacc usmg a action to pre, cnt \1r Bliss from 1n_1ur111g l11111 turthcr. As a result oi the light. Mr Bell received 7 stichcs to the nght brcmbone ,irca. had a \,m~r on his left forehead and left i1m and a hn11scd nght Bliss. On the night of 8 September 1994 and again on the morning of 9 September l 994. ,\1r ·1 reffonc discussed the matter mth \1r. I lughes '.'vlr Treffonc: said that alter having , ie,,ed the scene. considered the circumstances and intcr,iewed numerous \\ltncsses. he and Mr Jlu"hes decided that disc1plinar) action \\as warranted agamst both employees Ill\ oh cd in the fight. 14510 I.DOC 31 March, 19951 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 941 On 9 September 1994, following a discussion with his union represcntati,es and in their presence. Mr Beil was dismissed as a consequence of the misconduct on 7 September 1994. Mr Bliss was unable to attend the plant on 9 September but attended \\ ith his sister on Monda 1 12 September 1994. Mr T reffone said that he preferred Ms I lortz not to be present during the discussion. This was accepted without argument by Mr Bliss. Mr Treffone and Mr Bliss. in the presence of Mr Jones. discussed the situation. \,lr Treffone said that he told Mr Bliss of the conllicting. story g1,en by Mr Bell although the notes of the interview contained on Mr Bliss· file do not bear this out. Mr Bliss denies that at any stage \1r Bell's version was put to him for comment or to refute:. Mr Trcffone inforn1ed Mr Bliss that the incident had been fully investigated and as a result of having taken all of the evidence into consideration. the conclusion was that Mr Bliss had not conducted himself in a proper manner He was told that the Company belic,cd he had alternati,es to punching Mr Bell in the face such as warning Mr Bell off: stepping back into the control room where other employees were working or instructing Mr Bell to leave the restricted area and to refer the matter to management. For these reasons. Mr Bliss was summarily dismissed. At the conclusion of the meeting Mr Bliss protested the decision and his innocence maintaining that he had not been the perpetrator of the agg.ress1nn and decrying being used as a punching bag. 'Vlr Martin. for the Company. submitted that it was unnecessar) for the Commission to determine ,,ho threw the lirst punch. The fact is a fight occurred and that constitutes misconduct. Mr Lepahe. for the applicant. contended that it was critical for the Commission to determine \Vho ,, as at fault in causing the fight. Should it be decided that Mr Bliss had not initiated the altercation and had indeed onl:, acted in self defence then it followed that Mr Bliss had been dealt \\ ith harsh]). In his c,idence. Mr Treffonc said the Company was unable to dc:tcrmine \\ho started the fight. (ii,en that his wife alleges torment at !he hands of Mr Bliss. their, erbal altercation of the previous da:, :md Mr Bell', demon,trable concern for his \\ik all gi,e rise to a rca,onablc, icw that Mr Bell was the aggressor. l lo\\cver. e,idcncc h before the Commission which suggests that this ,iew may not be rnrrect. There is no evidence from \1r Bell. Mrs Bell or Mr Bliss that Mr Bell \\as agitated ,,hen he approached Mr Bliss In fact. the evidence is to the contrary. Mr llcll has no histor) of fightmg at AM) I and Mr Bell denies ha, ing been pre,iousl, invol,ed in a tight clse\vhere. Rumours \\l;rc apparent!) circulating at the plant on the morning of the Incident that Mr Bell ,,as ,earching for Mr Bliss to gin; him "a touch up". Whilst these rumours were generated b) Mr Bell's enquiries at -; ,() am and 8.35 am as to Mr Bliss' whereabouts. I think them to be no more than gossip. His stated intrntion \\ as to talk to Mr Bliss and 111 the e\ cnt a resolution could not be achiC\ ed to seek to instigate (undefined) legal proceedings against Mr Bliss If legal action was contemplated. it clear!) was foolish for Mr Bell to ha\e ph, sically attacked Mr Bliss. I must also take into account that \1r Bell approached \1r Bliss \\ith his right hand in his pocket. It is characteristic for Mr Bell tu 11 ;dk in this manner. To throw a roundhouse right ann punch would rcyuirc \1r Bell to rcmm e his hand from his pocket on approaching \!r Bliss There is no c\idcncc to this effect. \lr Bell presented himself in C\ idcnce as an emotional man but not an aggressive one. !le appeared to be; quite shaken by the inc1,knt some si:-: months after its occu1Tcncc. !quail). ther-c arc no gn,unds to helie,e that Mr Bliss had an) rc,H,n to beat Mr Bell \\ ithout prm ocation. Mr Bliss \\llS alert to \1r Ikii\ presence and cunous a, to ,,h) he had entered an authorised area. He would have been cognisant of the disagreement with Mrs Bell the previous day but nu apparent reason has emerged to support a conclusion that Mr Bliss launched a premeditated attack on Mr Bell. He presented as the more aggressive of the two men. I !is demeanour in the witness box was consistent with the manner he displayed at the plant, about which management had cause to speak with him on occasion. Whilst I think it is more plausible that Mr Bel I had greater cause to start the fight. in light of Mr Bliss· demeanour. I cannot conclude this ,,ay with any certainty. At this point I should return to the issue of retaliation referred to earlier. Both Mr Bliss and Ms llortz are certain that Mr Treffom; referred to Mr Bliss· retaliation at the meeting of 8 September 1994. Mr Treffone·s e,idence on this point is unclear ( see pp. 43 and 46 of transcript and exhibit 6. p. 3 ). From an examination of all of the e, idence. l belie,e Mr Treffone referred to Mr Bliss' retaliation. ·1 he use of the tenn misled Mr Bliss and Ms l!ortz into believing that Mr l reffone accepted Mr Bliss· version that Mr Bell had started the tight. This is unfortunate as the evidence is clear that at the time of Mr Bliss' interview on 8 September. Mr Treffone had not heard Mr Bell's perspective nor had the matter been full) in,estigated. I accept tbat at that stage Mr Treffone had not reached any concluded view of the matter. What is abundant]) clear is that once the fight had started Mr Bliss actively engaged in it. If Mr Bliss' evidence is accepted that he v\as attacked and his reaction was one of instinct and self defence. then it was spirited. He made no attempt to defuse the situation. do not accept Mr Bliss· concerns that Mr Bell may have been carrying a knife. Mr Bell was not in his kit. was not carrying a pouch and no knife handle was protruding from his pocket. The evidence of Mr Bell and Mr Treffonc was that it "as not the practice of workers to carry kni,es outside of designated areas. Given the s1:re of the boning knives. one would have been readily apparent. think Mr Bliss· al lcgcd fears ,,ere a smokescreen for his enthusiastic participation. If he did not initiate the fight then once it started. Mr Bliss was in it \\ith a ,cngeance. This \\as his downfall. The Compan) has a policy known to Mr Bliss that "Am employ cc caught lighting or subjecting other employees to an) physical act of aggression anywhere on compan) property will be putting their employment with this Company injcopardy". Like \lr Bell. Mr Bliss kne\\ that h::, engaging in a fight. his employment could be tern1inatccl. His particular concern in this matter was that by acting instincti,cly. in self dclcncc. he \\as dismissed I ha,e already indicated that I am uncertain as to who \\as the initial aggressor but I am com inced that once involved. Mr Bliss ,1as an acti\e participant. It was unchallenged e\ idcnce that Mr Bliss has a boxing and self defence background, thus it is clear that Mr Bliss would be more than capable of holding his own in any fight. In my vie,, the Company had a , alid reason for dismissing Mr Bliss \\hat needs to be detennined next is whether the dismissal \1as harsh. unjust or unreasonable. In considering this matter. I must also take into account \\ hether Mr Bliss \\ as given a reasonable opportunity to de lend against the allegations made. \1r Lcpahc says that Mr Bliss was not afforded procedural fairness on two grounds. firstly. Mr Bliss was not gi,en an adequate hearing and sccondl 1. the employer did not put Mr Bell's allegations to 'vlr Bliss for his response. Mr \lartin contests these submission, h) referring tu \1r Trcffone·s c,idence concerning the meeting of 12 September 199--1. He also refers to the meeting of 8 Septcmher 1994 \\here \lr Bliss was gi,cn an opportunity to describe the e,ents of the preceding da) from his perspccti, e. I am of the ,ic" that \1r Bliss ,,as gi,en an adequate hearing but am not satislied. as prc,iously md1cated. that he had the -- 2 of 3 -- 942 QUEENSLAND GOVERN MENT INDUSTR IAL GAZETTE [3 I March, 1995 opportunil~ to rcbu1 Mr Bclrs \ersion . 1he mcettng ol 8 Scplcmber 1994 gave Mr Bl iss 1hc op pun uni 1y to put his ea,.:. Even thou gh he ,,as not pcrlrnps physica ll y capa ble of explaining the cve nls "i lh m1y \1gour. from 1hc c, idencc 11 appears that his sister. Ms Hort7. more than adequatcl) represented him. I am also sau~ficd 1ha1 Jt this mcc ung Mr I rcffone c, 1m:ssed hi s concern o,er Mr IJli,s· invol"cment in the fight and at his 1101 ta ki ng nny precautionar) ,1cp, rhe e, 1dcnce re, eals that ,1r Dli)S and t\b Monz had the l~purtuni1y to rc:,pond to these concerns In Lhc result it "as l r Trcffone's concerns or nlkga ti ons against which Mr Bliss was rcquircd to dcli!nd in tc nm of s. 292( I ) of the /11 d 11srria/ Re/11t iom Act /990 . 1 he inadequate rc:.ponse 10 these concerns toge1hcr "ith \l r Bliss· acll\e pa11icip,111on in 1he light led to the Comp:in) ·s dcc1,ion to dismiss Mr Hli-, 13ecau ~c of the allc~ations cnttcal to the dec ision lO d ismiss wcrc those o f 1l 1c Company, I tlo nol be li eve it ,,a~ cssenti;1I 1ha1 Mr Bli ~~ be made a\\arc of Mr Uelrs stor) It dal nut affect the Compnn} ·, consideration of the d1l1c1plinal') .ictmn to he taken allamst J\lr Bh~~ - In the circum~rnnu:~ I belie, c \ l r ll hss was alTorJcd proce dural fairness. I should add thJt it \\Ould have b.:cn preferable for ~l r llh !> to hmo: had the hcnelit (If his sis1er· ~ pm,cncc and ad,ocac) at 12 Scptc 1nh er 19 94. Jus t as Mr Hd l was a ll owed rep resentation 1l 11ou ~h his union at the meeting whcrc he ,,a s in lunncd of his tcnnin.ition. Mr Hlis~ should ha,e been allo"ed 10 hJ\C an accompanying pcrson fh:n Mr 131i" \\as a Staff mernlx..'r. m Tn) ,ie,,. doc., not alter the nccd fo r represen tation. In ,my event. Mr 13l iss , ,i 1hout any durc~s. 1,.()ll~cnted to not lrnvc his sister present un d I do 11 01 hel ieve th,11 her agrl:cd absence "a, sufficient lo den) procedural la1mcss ~nd thus renJcr the d1~m1,sal in,Jhd I ha,t~n to add th" point \,a, not argucd befon: 111e. Mr Trellono: infonncd 1hc Commi,sion that ligh ting doc~ not au 1omai.icall) rc,ult in summa[) d1>m1>sal . Fmplo~ees \\ho ha,e pJrt1cip:ited in a fight arc suspended whibt the incident 1s i11 ves 1i ga1ed . In dt:tcr mi ni ng the pun bh menl, ~arious fa ctor:. nrt: 1al,.en into accoum such a, the cmp lo)ee ·, prc,ious record the ,cnousness of the incident and the nature of the incident. In th.: ca;c of \1r Olis~. Mr Tr.:ffo111: ,talcd lh,tt Mr Bh:,, \\.t:; a , oluahlc employee. I k d id 1101 hn,,c a h1 ~tory of , iolcnc.: or n pnor di,cip li nary rcconl I le had been addre<.s,,:d on hi, manner on ~C\'Cra l 0lCJ."10ns b, m.inagcment Ue,pite :>.tr Bibs· rcuird and hi:,, Jlue to the (.\,mpan). the dcc1:,10n to 1crminutc Ins cmpl0) nient wa., 131,.cn . I he dccis i(Hl. made by Mr I rcftonc in con:,u ltation wnh Mr I lt11!hcs. \\OS t>ased on Mr Blis~' in\'o h cmcnl in the figh t e:,pcc iully 1.:01h1dcring his position •" o mcmb..-r of staff. In the emplo) er':, mind. lhis con,ututcd mi,conduct "orth) of disml\,JI . The evidence revea led that Mr lll i~, al'tivcly engage d in a li g ht m the kno\,kdgc of the ( nmpan) ·s Jt lltudc 10,,ards fighting in the ,,orl.place. \lorco\er. \1r Bli,s \\a., ,1 ,uper-1sor and should ha,c 1al.c11 so m.: prccm11ional') 1nca;urcs. It \\OS not a~ though Mr lk ll is a h1g man. Mr Hliss is yo un ge r an(l li tte r than Mr Be ll and hos a hacl,ground in ~e lf dcfe111;c A, a ,1,11'f ernplu)CC hc shou ld ht1,c l.no"n beucr and acted d1tf.:rcntl) lieforc hcconunl! in,ohed III a rh> S1cal ahcrcm1on. ' I he ComJ)Oll) ha ,·c a re,ponsibi li 1y and .i dut) of cJ rl! to (110\ 1de a ,Jtc ,,orl.mg en\lronmcnt That a ,upcrvisM acu, cl) parti"pdtcd 11 ,I tig.ht ,, in1mkal to that du!) of care In the circumstance, I do 1101 cons id e r that the Co mpan) ncted har,h l). unfa1rl) or unrca~nnah ly in decidin g to tc nn inatl;' ,\llr Bliss ·s employment. I he apph,Jllon is relu-cd O rd er accordingly. ( , I( rl~l11, R. C ommiss11111cr Appl!urances Mr I e pahc of<:lay ton Utr on behal f of the upplica nl. Mr C, C \ l amn (instructed h) :-.lcCrea Jones) for the rc~pondent Opcrali\'e Date: NIA Decision - R t:in~ tatement Released: 21 \l arch 1995 #ll/lllllllllll#l//1/lllllllllll#llllllllllllllll#l/llll/ltlllll#tlll#llll/lllllllll#ll##ll#IIIIIIII 3 1 March, 1995 ] Q UEE NSLAND GOVE RNM ENT INDUSTRIA L GAZETTE 943 -- 3 of 3 --