Carmichael v JSG Holdings Pty Ltd [2004] QIRC 53 (2004) 175 QGIG 1101

26 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1101 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Ian Charles Carmichael AND JSG Holdings Pty Ltd (No. B662 of 2003) COMMISSIONER BECHLY 12 March 2004 DECISION Mr Ian Carmichael was employed as a storeman/driver by the respondent JSG Holdings Pty Ltd from 07 February 2000. On 6 March 2003 an incident occurred in the office of the respondent initiated by Mr Carmichael. For no apparent reason Mr Carmichael kicked another person seated in the office area, Mr Kevin Sigston, in the lower leg. Mr Sigston was not an employee of the respondent. He is employed by Michelin Australian Limited and worked from the office area of the respondent. Mr Carmichael describes the action as, when he trotted up to Mr Sigston, propping with his left leg and swinging his right foot behind him so that it contacted Mr Sigston’s lower leg. He was wearing steel capped safety boots at the time. The purpose of his presence “trotting” through the office was to advise Mr Sigston that a visitor had arrived to see him. Following Mr Carmichael’s attack on Mr Sigston he left the immediate area but was followed by Mr Sigston who grabbed him around the throat area and pushed him against some office equipment in a scuffle which lasted about 15-20 seconds. The parties were separated by the proprietor, Mr G. Denney, who dealt separately with them. Mr Denney had witnessed both incidents. Both parties were heated and steps were taken to calm the situation. Mr Carmichael was sent for a walk by Mr Denney and Mr Sigston was instructed to calm down and later to be dealt with. Mr Carmichael left the premises and attended a doctor. He states that he had pins and needles in his left arm and a very sore throat. No medical evidence was produced. Some time later on the day of the incident Mr Denney contacted Mr Carmichael over the matter and informed him that it was his opinion that while Mr Sigston’s action was unacceptable, Mr Carmichael had provoked the situation by intentionally kicking Mr Sigston in the ankle. Following the incident Mr Sigston approached Mr Denney to apologise for his actions. He advised that he wished to apologise to Mr Carmichael. That action was not taken. Subsequent to this Mr Denney contacted Michelin Australia Limited and complained of the action of Mr Sigston. An internal incident report was prepared by the respondent. Mr Carmichael resumed his usual duties the following day and worked for a period of two weeks when he tendered a written resignation on 19 March 2003 giving one weeks notice of termination to commence from 20 March 2003. His resignation was accepted by the respondent. Mr Carmichael proposes that the cessation of his employment was a constructive dismissal caused by the failure of the respondent to take action against Mr Sigston and thus remove what he considered an unsafe or threatening work environment. Mr Carmichael proposes that he felt unsafe in the workplace following the incident and that the attitude of the respondent towards him cooled. Mr Carmichael did not discuss his perception as to an unsafe work environment with the respondent or anyone else. He states he was too proud to do so, in his words “I’ve been dogged, I’ve been thrown against a desk and ridiculed in front of my peers.”. His pride was hurt and through his belief that the respondent had done nothing about the assault upon his person, particularly as it was known that he had a shoulder injury of some standing. He states that he gave some thought to his resignation on and off for two weeks and did not act on the spur of the moment. He expected however that his employer would act differently from simply an acceptance of the resignation. He thought that he was a valued employee and that the respondent would have said or done something about the resignation in the light of the trust reposed in him by Mr Denney and customers. There was no such reaction from the respondent and Mr Carmichael made no attempt to withdraw the resignation. There was no alteration to the employment relationship subsequent to the incident, other than a cooling of the respondents attitude. There was no contact between Mr Carmichael and Mr Sigston during the two week period following the incidents. There is no evidence of any threat to Mr Carmichael’s personal or job security. What is apparent from the evidence is that the respondent desired that the employment relationship with Mr Carmichael continue but with there being no contact with Mr Sigston. There was no need for any contact between them in their day to day activities. -- 1 of 2 -- 1102 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 March, 2004 What also seems apparent is that there was a desire that Mr Carmichael cease his light hearted pranks which, on occasions, caused doors to the administration area to be locked against him to enable work to be carried out without interruption. There was no overt or convert action by the employer to bring Mr Carmichael’s employment to an end. The cessation of his employment caused considerable inconvenience to the respondent. Mr Carmichael himself withdrew from use of a company vehicle provided to him to travel to and from work. He instead, chose to ride a pushbike to and from work. This was not at the instigation of the respondent. Any threat perceived by Mr Carmichael was not reasonable. It is clear from Mr Carmichael’s evidence that his pride was hurt by the assault on his person, in the presence of other employees an assault occasioned by his assault on Mr Sigston. While Mr Carmichael does not see his assault on Mr Sigston as being serious, it is apparent on the evidence that it caused Mr Sigston, who suffered from gout, considerable pain. Mr Carmichael relegates the attack on Mr Sigston to being a mere tapping on the leg with his safety boot. Notwithstanding his belief as to his ability to control his kicking skills and to judge the strength with which his boot may have hit Mr Sigston, the facts are that he initiated an assault which caused considerable pain. It seems not to have crossed Mr Carmichael’s mind that he should initiate reconciliation with Mr Sigston which would have resolved the concerns that he had about the work environment. Instead he chose to resign, apparently to put pressure on the employer to take some action which might restore his misplaced pride. He did not initiate any action prior to or post the resignation which might have indicated to the respondent what he was thinking, why he had resigned or whether he could withdraw from the resignation. There is nothing in the evidence which might be relied on to find that the termination was at the instance of the employer. All of the evidence indicates that the termination was at the instance of the applicant arising from hurt to his pride the origins of which fall squarely upon his shoulders. The application is refused. R.E. BECHLY, Commissioner. Hearing Details: 2004 24 February 05 March Appearances: Mr I. Carmichael conducting his own case. Mr A. Walker, of Redchip Lawyers, on behalf of the respondent. Released: 12 March 2004 -- 2 of 2 --