WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (Appellant) and Argyle Diamond Mines Pty Ltd (Respondent). No. 1525 of 1992. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P.J. SHARKEY. SENIOR COMMISSIONER G.G. HALL1WELL. COMMISSIONER C.B. PARKS. 24 September 1993. Reasons for Decision. THE PRESIDENT: This is the unanimous decision of the Full Bench. This is an appeal against the decision of the Commission at first instance, constituted by a single Commissioner, and properly brought under s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as "the Act"). The decision was made upon an application by the appellant organisation that two of its members, Mr R O'Connell and Mr N Watson be reinstated in employment, having been dismissed from their employment on 6 August 1992. It was alleged that both gentlemen were unfairly dismissed (see page 4 of the appeal book (hereinafter referred to as "AB")). The application was dismissed by the Commission on 13 November 1992 (see page 7 (AB)), and the appellant organisation appeals against that decision. Grounds of Appeal. The grounds of appeal herein read as follows (see page 2 (AB)):— "The Commission erred in fact or in law or in fact and law in finding that the Respondent was entitled to summarily dismiss Messrs O'Connell and Watson ("the employees") when there was no sufficient evidence that:— (a) The fight was one of a serious enough nature to render the employees liable to dismissal. (b) The event was one that had a potential to disrupt the harmony of the running of Argyle VUlage. (c) The course of action taken by the respondent was the only course of action which should have been taken. The appellant seeks an order that the appeal by upheld and that the decision of the Commission at first instance be suspended and remitted for further hearing and determination." Background. The background to the matter can be found in a substantial Statement of Agreed Facts (see pages 29-36 (AB)). In addition, Mr Neville John Watson and Mr Raymond O'Connell, as well as Mr Bruce Ian Martin, were called as wimesses for the appellant, which, of course, was the applicant at first instance. Mr William Richard Yates was called to give evidence for the respondent. Mr Watson was not cross-examined and Mr O'Connell was cross-examined. There was also a book of documentary exhibits repro- duced at pages 26-130 (AB). The background to the matter briefly is this. Argyle Diamond Mines Pty Ltd (the respondent herein) (hereinafter referred to as "Argyle") operates a diamond mine in the far north of this State. For the benefit of its employees it conducts an accommodation facility called "Argyle Vil- lage" which is close to the workplace. At all material times, Mr Neville John Watson and Mr Raymond O'Connell were employees of Argyle at the Kununurra mine site. Mr Watson had been in the respon- dent's employ for seven years with nothing detrimental on his record. Mr O'Connell started in 1985, too, and there was no evidence of anything detrimental on his record. At all material times, these gentlemen were residing in the Argyle Village, which was accommodation provided by the company for employees. On the morning of Sunday, 2 August 1992 they attended the accommodation vUlage bar. During the previous shift, there was a crew meeting, and it was announced that one of Mr O'Connell's friends, Mr Lance Glew, was being transferred from their panel, and Mr Peter Owen was being transferred back to their panel. On hearing this announce- ment some other employees jeered, and the jeering upset Mr O'Connell. Later, in the bar, following the shift during which the announcement was made, there was an exchange of abuse between Mr Watson and Mr O'Connell arising over this transfer. (Mr O'Connell was a friend of Mr Glow's). Following the exchange, Mr Watson asked Mr O'Connell if he would like to "go outside" to further discuss the matter. Mr O'Connell answered by asking Mr Watson to accompany him to the toilets located at the bar, which he did. At the toilets Mr O'Connell stated words to the effect that he did not like seeing his mates abused and then attempted to headbutt Mr Watson. Mr Watson avoided Mr O'Connell and then swung a punch which struck Mr O'Connell's face. After that, the parties were engaged in some form of combat, in the course of which Mr Watson suffered an injury to his eye, which was later diagnosed as a scratched cornea. The combat involved wrestling, pushing, shouting and at least one punch which connected with Mr Watson's eye. They then ceased of their own accord and returned to the bar. Later, Mr Watson sought medical attention for the injury to his eye and the nature of the injury prevented him from presenting for work for his next shift. At the start of the night shift on Sunday, 2 August 1992, one of the other employees reported the altercation to Mr Ian Grocoe who was the Mine Technical Officer. Mr Grocoe informed Mr Ron Mangano, who was the Acting Shift Superintendent at the time, about the incident, and Mr Mangano then interviewed both Mr O'Connell and Mr Watson separately. At Mr Watson's first interview, conducted by Mr Mangano at approximately 7.00 pm on 2 August 1992, Mr Watson first told Mr Mangano that he had injured his eye when a book fell on it, and later admitted that it had been injured by Mr O'Connell in the course of an argument. Mr Mangano came to Mr Watson's room several times. Mr Watson was not fit to return to work until 5 August 1992, the Wednesday, these events having occurred on a Sunday. At about 8.30 pm on Sunday, 2 August 1992, Mr O'Connell informed Mr Mangano that Mr Watson and he had been involved in an argument, but that Mr O'Connell had only acted in self defence. On 3 August 1992, Mr O'Connell made a written statement about the matter and gave it to Mr Richard Matthews, Senior Mining Engineer and Acting Manager— Mining, in the absence of Mr Richard William Yates. Mr O'Connell said in his statement that there had not been a fight, but that he and Mr Watson had disagreed over a private matter, the disagreement lasting 15-20 minutes, but that there was not a fight, because by fight he meant that there was no deliberate bodily contact that he was aware of. That statement reads as follows (see page 38 (AB)):— "To whom it concerns Neville Watson and I disagreed over what could be called a private matter between him and I. It lasted 15-20 mins and went from cool to heated and back again several times. At no stage could this be called a "fight". Ray S Connell PS. By "fight" I mean that there was no deliberate body contact that I was aware of." On 4 August 1992, Mr Watson made a signed, undated, written statement that Mr O'Connell and he had fought in the toilet, that he had struck Mr O'Connell, and that Mr O'Connell had struck him causing his eye injury. That statement reads as follows (see page 37 (AB)):— "Went to the bar to have a quiet drink and a few games of pool. I'd been there for 1 beer when I went to the bar to get another with Mick Willis and as we were standing there Ray started abusing me. I can't really recall what was said but my response basically was I just said fuck off Ray. He continued to carry on so I asked him if he'd like to go outside to discuss the matter further. At that stage Ray ask (sic) me to accompany him to the toilet so I obliged. When we arrived there Ray stated that he didn't like seeing his mates shat on and attempted to headbutt me. I avoided that and swung a punch which connected Ray's face. After that there was a lot of wrestling, pushing, shouting and maybe one punch thrown which con- nected my eye. It stopped when we both realised how stupid and childish we were being so went back to our games of pool thinking nothing more of it. I have since spoken to Ray and there is nothing more to it." Subsequently, both were suspended while the matter was investigated by Mr Yates. Eventually, at 4.00 pm on 5 August 1992, with Mr Mangano in attendance, Mr Yates informed Mr Watson that he wished to discuss the matter, and also that he was entitled to invite a Shop Steward to attend. Mr Watson said that he did not require a Shop Steward present, since there was not much point. In the end, Mr Watson confirmed that the events surrounding the altercation were as outlined in his signed, undated, written statement. Mr Yates then informed Mr Watson that it was his opinion that Mr Watson had pursued a course of action that had led to him striking Mr O'Connell. As a result of this action, Mr Yates believed that it was appropriate for him to terminate Mr Watson's employment with Argyle. Later, Mr Yates interviewed Mr O'Connell who had become aware of Mr Watson's dismissal. On entering the office of Mr Yates', Mr O'Connell said that he assumed that he was also dismissed. Mr Yates informed Mr O'Connell that he had not been dismissed, as he had not had the opportunity to discuss the altercation with him. Mr O'Connell then stated that he did not want a Shop Steward or anyone else present, and that he would prefer to discuss a number of issues privately. Accordingly, when Mr Mangano and Mr Bruce Ian Martin, a Mechanic Tradesper- son, attended at Mr Yates' office, Mr Yates requested that they leave, which they did. Mr Martin asked Mr Yates to consider that Mr Watson and Mr O'Connell were "two good blokes, they have been working here a long time, they have got two families, little kids, they need a job". Mr Martin also said "I've had a yam to them and it seems that it's blown right out of proportion". He said, too, "They were mates before it, they had a bit of a scuffle, they were away from everyone, no one was inconvenienced, no one felt intimidated with arguments, they handled it like men, they came out of the bar, they had a beer and it was forgotten". Mr Yates said he would take that into account and thanked Mr Martin who left. Mr Martin also gave evidence that Mr Mangano told him that he was surprised and disappointed at the outcome. As we under- stand his evidence, Mr Martin said that he and other employees were effected by what he called the attitude taken by the company "towards us and these blokes". As we understood his evidence, too, the employees shared his surprise that this had occurred when Mr Mangano had told them to go ahead and tell their story on the basis that they would not be sacked. Mr Yates and Mr O'Connell then discussed a number of things, including Mr O'Connell's statement. Mr Yates concluded that both had been willingly involved in the affair, and that there was no innocent party, so he decided that the proper course of action was to dismiss Mr O'Connell, too. When Mr O'Connell asked Mr Yates if he would consider counselling as a penalty in lieu of dismissal, Mr Yates replied that he did not consider counselling appropriate. Mr Yates gave evidence that he believed that they knew the seriousness of fighting (see page 188 (AB)). He also said that the fact that two senior employees from Hamersley Iron Pty Ltd engaged some months earlier in a similar altercation "off-site" were terminated weighed in his mind in making the decision which he did to dismiss them. At about 10.00 pm on 5 August 1992, Mr Watson visited Mr Yates and said that the penalty was too harsh, that the fight was not a serious fight, that his injury was unlucky, and otherwise he would not have been prevented from working. He also said that he felt that he was being penalised for telling the truth. Mr Yates said that he had not been penalised for telling the truth. Mr Watson asked Mr Yates to reconsider his decision, but Mr Yates explained that he was being penalised for striking Mr O'Connell and did not consider the dismissal was inappropriate, or words to that effect. On 6 August 1992, Mr Yates issued a memorandum setting out the results of his inquiry, and his decision to dismiss, which, formal parts omitted, reads as follows (see page 42 (AB)):— "I have reviewed the facts presented by R Mangano in relation to an alleged fighting incident between R O'Connell and N Watson on the morning of the 2nd August 1992. Both of them were interviewed by me yesterday. 1 conclude that a fight did take place and that both parties were actively involved. I have therefore informed both R O'Connell and N Watson that their employment with Argyle Diamond Mines will be terminated as from today's date." On 7 August 1992, Mr Yates produced a memorandum setting out the events addressed to the Employee Relations Superintendent. The events are set out at pages 39-41 (AB) in some detail. The decision was later reviewed at a meeting chaired by Mr Rod Bates, General Manager Operations, with an organiser of The Australian Workers' Union, West Austra- lian Branch, Industrial Union of Workers (hereinafter referred to as "the AWU") and an AWU Shop Steward present. The AWU put the point of view that the action by the respondent in dismissing the employees was too severe in the circumstances and should be reconsidered. Mr Bates, having considered these matters, on 26 August 1992, advised the AWU that he considered that the termination decision should stand. There was before the Commission at first instance a copy Offer of Employment, which, in fact, was not given to these men (see pages 51-54 (AB)). In addition, there is a document at page 56 (AB) which refers to "Argyle Culture", and the relevant portion of that publication sets out what is said to be the philosophy of the respondent:— "Argyle Culture. How we will treat people We will treat people honestly, consistently, fairly and openly. We will treat them as equals, whilst recognising individuality. We will encourage people to make decisions, and to work towards higher levels of competence and responsibility. We will acknowledge and give credit for skills and expertise and we will help people to overcome deficiencies. We will develop and maintain a safety pro- gramme to achieve a working environment in which no person is injured, nor suffers work related problems. In so doing we will establish a:— • safe working place • safe system of work • safety conscious workforce Safety is recognised as an integral part of Argyle Diamond's operation and production plan- ning process. What we expect of our people We expect that our employees will contribute 50 per cent toward the employee-employer rela- tionship. This means that we expect people to demonstrate loyalty, support and commitment to Argyle Diamonds. We also expect that people will work towards the goals established for their work units. How we will manage our people We will establish guidelines, parameters and measures of performance, and we will give people the scope to manage within these guidelines and to perform to these standards. We will recognise good performance and counsel poor performance, and we will encourage frank and open two way communication and feedback." Findings of the Commission at First Instance. The Commission at first instance made the following findings:— (1) The employment of both of the men involved in the case is governed, in part, by the Argyle Diamond Mines Production Award 1985 (herein- after referred to as "the award"). (2) Clause 27 of the award provides for a settlement of a disputes procedure. Part three of the settle- ments of disputes procedure reads as follows:— "Code of Behaviour: The code of behaviour which shall be used as a guiding principle in all behaviour matters is that: While employees are at work, or resident in the accommodation village, they shall behave in a fair, safe and honest manner, and the employer will respond in a like manner." (3) In addition, exhibit T1 also contains a copy of the code of conduct that forms part of the contract of employment at Argyle. The relevant part of the code of conduct for this case is set out in paragraph 2. Severity of Problem under subpart 2.3 which deals with misconduct. (4) There was a fight between Mr Watson and Mr O'Connell which related to Mr Watson's response to news that a worker, Mr Glew, was to be transferred off shift. Mr O'Connell was a friend of Mr Glew, and Mr Watson's behaviour, in particular, offended Mr O'Connell so that he raised the issue with Mr Watson in the bar at Argyle Village. (5) The two men removed themselves outside, not to a place where they could have a private discus- sion, for there are many such places around the Argyle Village where that could occur, but into the men's toilet where they could not be seen. (6) As they entered the toilet, Mr O'Connell tried to headbutt Mr Watson and Mr Watson struck him in return. They then wrestled and pushed each other for at least a couple of minutes. During this time Mr Watson received an injury to his eye which later required medical attention. The injury was a scratched cornea, an injury which could well have been serious. The fight then concluded. (7) Afterwards, both of the men tried to cover it up, and in trying to cover it up they misled their employer and by this conduct they breached the code of behaviour which is well known to them. They separately concocted stories designed to confuse and distract their employer from ascer- taining the real facts of the incident, and it was only when one of them decided to tell the truth that the investigators were able to discover what actually occurred. (8) They were both suspended on pay whilst an investigation occurred, and the employer, through the Manager—Mining, considered alternative penalties, but, in the circumstances, decided that dismissal was the course of action which should We will encourage people to be honest and be taken, open about problems or difficulties, and to accept (9) Even tjjen; there was a funher review of the responsibility for their own actions. decision by the General Manager—Operations, We will encourage every employee to develop and, in accordance with the settlement of disputes a reasonable, self disciplined attitude to their own procedure in Clause 27.—Communication and and others' safety and to contribute to our safety Consultations, a further review was undertaken goals by active participation and co-operation. with the relevant union organiser. (10) The fight which did occur was serious resulting in injury to one of the participants, and the catalyst for the fight was the transfer of Mr Glew, (11) The fight took place at the village, which is a place only occupied by Argyle employees, and the event was one that had a potential to disrupt the harmony of the running of Argyle Village. (12) It could not be said that the affair was remote from the contract of service, because the fight, on any fair view of the events, was connected with the contract of employment. (12) The dismissal was not harsh in the circumstances, because:— (a) These two employees went about settling their dispute by physical force without any care or consideration for either themselves or the code of conduct of which they were well aware. (b) The investigations were not conducted in a harsh way. (c) It was not to the point that if Mr Watson's cornea had not been scratched no one would have been the wiser about the event. (13) The outcome, of course, might mean that the men would lose their jobs, but they were the architects of their own misfortune, and that is not a factor, on the rules which have to be applied, which the Commission can take into account when examin- ing this first step in the process. In the end, the Commission at first instance concluded that the summary dismissal of Mr O'Connell and Mr Watson was not harsh and unfair, and that there, therefore, should be no order for reinstatement. The Cases for the Parties. The case for the appellant was put on several bases by Mr Nisbet QC. Firstly, he took us to a review of a large number of "assault cases" and submitted that fighting has only justified dismissal when an assault has occurred in circum- stances involving the contract of employment of one or both persons. To support that he tendered a resume of the cases and took us through that resume. Next, it was submitted that neither Mr Watson nor Mr O'Connell were cross-examined about the altercation, and that, in fact, their evidence was accepted. What was clear, he submitted, was that this was a spur of the moment thing between two men who had previously got on well and did so after the event. This evidence, it was submitted, was supported by the evidence of Mr Martin that he could not believe that they had had a fight and that the incident was blown up out of all proportions. It was submitted, too, that no attention was paid to Mr Martin's evidence of the effect of the decision upon the Argyle workforce, and that, in short, the exercise of the Commission's discretion had miscarried. It had miscarried because, firstly, the finding that the fight was serious in nature was not supported by the evidence. Secondly, there was an error in that the Commission at first instance found of its own accord that the incident had the potential to disrupt the harmony of the Argyle Village. Further, there was no evidence of that before the Commission. There were other alternatives which could have been considered, having regard to the factors set out in the submissions of Mr Nisbet and recorded at page 30 of the transcript on appeal. Mr Allen (of Counsel), too, made a number of submis- sions. He submitted that Mr Yates had been hampered in his investigations by the denials that there had been a fight, including Mr Watson's story that a book had fallen and hurt Mr Watson's eye. These men, in this respect, had not dealt with their employer in a fair and honest way, so the submission went. Further, Mr Yates had, on the evidence, considered alternatives and rejected them. Next, it was submitted that the fight took place at the vUlage, that the company had a clear code of behaviour and it was breached. The conclusion, too, was open to the Commission, so it was submitted, that the fight had the potential to disrupt harmony, that there was a clear code of behaviour, and that the fight was not tolerable. Mr Allen submitted, too, that the fight was of such a serious nature as to render the employees liable to dismissal because:— (1) The fight was of a serious nature. (2) The rale against fighting existed so that people did not get injured. (3) The men were familiar with the company's position on fighting, and it was clear that the seriousness of the fighting was known to the employees concerned. In reply, Mr Nisbet submitted that assault was forbidden, not fighting. In the end, what occurred did not warrant the harsh measure of terminating employment. Conclusions. Both Counsel agreed that this was a discretionaiy decision in the end. It is not, therefore, for the Full Bench to substitute its decision for that of the decision at first instance, unless the exercise of the discretion miscarried (see House v. The King 55 CLR 499, AWU v. Poon Bros (WA) Ply Ltd (1983) 4 IR 394 and BHP v. TWU 73 WAIG 529 per Franklyn J). Of course, insofar as weight placed upon facts is concerned, then we are bound by the principle in Gronow v. Gronow (1979) 144 CLR 513. Whether the dismissal was unfair was required to be dealt with in accordance with the well known principles in Undercliffe Nursing Home v. FMWU 65 WAIG 385. Misconduct after hours on work premises or in accommo- dation provided by the employer, may, if sufficiently serious, justify summary dismissal (see North Australian Workers Union v. Newcastle Protective Coating Pty Ltd (1971) 13 AILR 603 and AWU (WA Branch) v. Goldsworthy Mining Ltd (1978) 20 AILR 259(8)). At common law there is no duty imposed on employees to volunteer information concerning their own misconduct (see G J McCarry "The Workers Right to Silence" (1983) 57 ALJ 607). A failure to disclose conduct or a criminal offence which occurred before the current employment or outside working hours will not normally constitute a breach of duty and could not, therefore, justify dismissal (see Gordon and Gotch Australia Ltd v. Cox (1923) 31 CLR 370). There are qualifications to this. First, the terms and nature of the employment might be such as to impose a duty to inform the employer of misconduct of other employees, even if this involves self-incrimination (see Sybron Corp v. Rochem Ltd [1984] 1 CH 112 (CA) and Swain v. West (Butchers) Ltd [1936] 3 All ER 261). Another qualification could be where an employer makes a reasonable request for information from the employee concerning the employee's conduct in carrying out his employment (see Associated Dominion Assurance Co v. Andrew (1949) SR (NSW) 351 at 357-358). In this case, the Commission at first instance was required to deal with the matter according to equity, good conscience and the substantial merits of the case (see s.26(l)(a) and s.26(l)(c), too, as well as according to those considerations raised by s.26(l)(c)). What happened here was that a fight occurred between the two employees which they conducted in the toilet because of difference of opinion. It lasted 1 or 2 minutes. It was not, it would seem, a vigorous one, although there was force applied. As a result, however, Mr Watson suffered a scratched cornea which put him off work for three days. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE Neither man knew how it happened. They broke off the fight. Both were on good terms before the fight and remained on good terms after. They were, however, summarily dismissed because Mr Yates regarded the incident as serious. He did, on his own unchallenged evidence, consider alternatives, but weighed in his mind what had happened to other employees at Hamersley Iron Ply Ltd who had been in a similar situation. He summarily dismissed the two men, notwithstanding their own representations and those of Mr Martin. Indeed, Mr Yates' decision was reviewed and confirmed after a meeting involving the appellant's representatives. Mr Watson and Mr O'Connell both prevaricated about how the injury occurred until they eventually told the truth. However, they were not dismissed for this, and having regard to what their duty might be to reveal their own misconduct (see the authorities referred to above), that is a matter which properly does not arise. The two men were, on the unchallenged evidence of Mr Martin, good workers who had been at the company eight years, each with young families. The unchallenged evidence of Mr Martin, too, was that the dispute between the men was settled privately and no disruption occurred. It is a fair inference because they concealed the event that they knew that fighting was either frowned upon or forbidden. The events did occur at a village, being a place occupied only by Argyle employees. It is, of course, quite clear that they were dismissed for fighting and not for any so-called dishonesty. The Commission at first instance made a number of findings, some of which were challenged on appeal, or were the basis of ultimate conclusions which were challenged on appeal. Firstly, the fight which did occur was a serious one resulting in injury to one of the participants. That injury was not intended, but it might be seen to have been foreseeable and to be a reason why fights in accommodation provided by the company might be prohibited. It was, of course, a fight and not a case where one person assaulted an innocent party, and in that sense it was not as serious as an assault. It was, however, open to the Commission to find that the fight was serious, because it resulted in injury, indeed injury incapacitating from work one of the participants. The Commission also found that the fight had the potential to disruption "the harmony of running the village". In fact, it is a matter of evidence, and uncontro- verted evidence, that it did not have that potential, and, indeed, caused no such disruption. Mr Martin's evidence is quite clear on that point, and he was not contradicted or shaken. Next, there was a finding that the fight was not remote from the contract of service, because it was connected with it. Some reliance was placed on the code of conduct (see page 46 (AB)) which prohibits assault, but is based on the code of behaviour which is set out in the award. It is clear that the award which governs the contract of employment requires employees to behave in a fair, safe and honest manner. Fighting cannot be called safe. These gentlemen did fight. They were not permitted to do so. One was injured and not slightly. He was unable to work for some days. The contract tendered was not the contract made with them, and its terms cannot be considered. The Argyle mission statement in its material part is no stronger than an assertion of the intentions of the respondent, and we pay no attention to it. The award is in different case. The Commission at first instance made final findings, as we have set them out above. These included consideration implicitly of the hardship occasioned by the loss of their jobs to these two men, which one would think was manifestly the case. We now examine the grounds of appeal. Because of the injury sustained, one can only say that the fight was of a serious nature, such as to render the employees liable for dismissal. For the reasons we have set out, the fight was not one which had the potential to disrupt the harmony of ranning Argyle Village. The evidence was to the contrary. 73 W.A.I.G. That finding was in error. It was not correct to say that dismissal was the only action which could have been taken. However, alternatives were considered. It was not, in the circumstances, an unfair or harsh or oppressive act, given the nature of the fight and the nature of the injury occasioned by it to dismiss these men. We say that on the basis that we may well have decided this matter differently at first instance. However that is not the test. It was open to the Commission at first instance to finally conclude as it did. There was no error in the exercise of its discretion which was discernible according to the proper principles set out above. The grounds of appeal are not made out. The appeal will be dismissed. Order accordingly Appearances: Mr P M Nisbet QC on behalf of the appellant. Mr R D Allen (of Counsel) and with him Ms E Crowe on behalf of the respondent.