WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Uldis Svems and Advanced Food Systems International Limited. No. 970 of 1992. COMMISSIONER R.N. GEORGE 3 November 1992. Reasons for Decision. THE COMMISSIONER: By this application Uldis Svems (hereinafter the Applicant) claims that he has been unfairly dismissed by his employer. Advanced Food Systems International Limited (hereinafter the Respondent). The remedy sought by the Applicant is reinstatement in the position from which he was dismissed and payment of wages and accommodation allowance lost between the time of dismissal and the time of reinstatement. It is common ground between the parties that the dismissal of the Applicant was a summary dismissal. The onus therefore rests on the Respondent to establish that the misconduct in fact occurred and was such that it struck at the heart of the contract of employment. The Applicant was employed by the Respondent as a barman/wait-person in the Cygnet Grill Restaurant and in what is called the Hamersley Room at the King Bay Holiday Village. Little else was provided to the Commission as to his contract of employment. The dismissal of the Applicant resulted from an incident at the King Bay Holiday Village, Dampier, which involved the Applicant and another employee who for the purpose of these Reasons For Decision will be known as Mr X. The incident occurred in what is known as the Sunset Room Casino at the King Bay Holiday Village and commenced 72 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2847 with an exchange of words which became increasingly loud and heated, culminating in Mr X confronting the Applicant and attempting to draw him into a physical altercation. Witness evidence was given by a number of persons who were present during the incident. Evidence was also given by the Respondent's General Manager, Mr Finnin, who, while not being a witness to what had occurred, had inquired into the incident and on the basis of his enquiry had sought the resignations of both the Applicant and Mr X. The facts as they are revealed by the evidence are that on the night of Saturday, 18 July 1992 Mr X, who was on duty at the time, was asked to join two persons at a table in the Cygent Grill Restaurant for a drink. One of those persons was a Mr Stewart who was leaving the Respondent's employment and was central to the reason why Mr X was asked to join the table and to later join with Mr Stewart and others in the Casino adjacent to the Restaurant. At about 2.00am that night, after he had completed his duties, the Applicant was asked to join the table in the Casino where Mr X and other past and present management personnel had been drinking with Mr Stewart. The atmosphere at the table at that time was friendly with what was described as normal bar room banter being exchanged. As time progressed, however, the exchanges between Mr X and the Applicant reached the point where they became loud and abusive with obscenities being freely used. This went on for some time until Mr X suddenly rose to his feet, took an aggressive stance over the Applicant and demanded that he join him outside to settle the issue which had developed between them. At one point the Applicant reminded Mr X of the positions held by each of them with the Respondent and told him that he would not fight with him. After Mr X had risen to his feet another person at the table, Mr Abdulla, the Maitre d' of the Cygnet Grill Restaurant operated by the Respondent, told the Applicant to remain seated and pointed out that if he responded as Mr X sought him to do, both he and Mr X would face dismissal. The Applicant did as he was told by Mr Abdulla and remained in his seat, half turning his back to Mr X. At about that same point in time Mr X was restrained from behind by the Casino security officer who took Mr X in what was described as a "choker" hold causing him stress and to become more agitated. In his attempts to break free of the hold on him by the Casino security officer Mr X accidentally struck the Applicant on the back of the head. In the belief that the blow was deliberate the Applicant started to rise in order to confront Mr X but was stopped by Mr Abdulla who told him that he had seen the blow and that it was accidental. Mr Abdulla instructed the Applicant to remain seated and he complied. In an attempt to defuse the issue Mr Abdulla also asked the Applicant to accompany another member of the table to the kitchen area to collect some music discs which had been lent to the Casino. Mr Abdulla then assisted in ending what was described as the scuffle between Mr X and the Casino security officer and assisted Mr X from the room and to his quarters. While Mr Abduila's actions placed physical space between Mr X and the Applicant, the abusive exchange between them continued until Mr X had left the room. All this had occurred between about 2.00am and 3.00am in the Sunset Room Casino which is an area open to the public. It was the case, however, that the Casino was closed at about 2.15am and any patrons who were in the room left at about that time. There was no evidence to establish that the incident was witnessed by patrons of the Casino outside of the group at the table. The incident was reported to Mr Finnin who at the time was in Perth. On the instructions of Mr Finnin, Mr X was immediately suspended on full pay pending an enquiry into what had occurred. On his return from Perth Mr Finnin interviewed Mr Lang, Food and Beverage Manager, the person who originally reported the matter to him. The other persons interviewed were the Applicant, Mr X, Mr Henderson, Mr Abdulla and Mr Palmer. With the exception of Mr Lang all of those interviewed were witnesses to the incident. Only Mr Lang and Mr Palmer, the security officer who restrained Mr X when he confronted the Applicant, were not called to give evidence at the Commission hearing. On the completion of his enquiry Mr Finnin concluded that both the Applicant and Mr X had misconducted themselves and asked for their resignations. Mr X apparently responded by submitting his resignation but the Applicant did not. As a consequence the Applicant was summarily dismissed. The evidence of the severity of the exchanges between the Applicant and Mr X leading to the point where Mr X confronted the Applicant was varied for the reason that in the early stages the exchanges were intermittent and most of the persons at the table left for short periods of time to attend to work related matters or to gamble or for other reasons. Both Mr McLane for the Applicant and Mr Macaree for the Respondent drew the Commission's attention to the law to be applied in cases of summary dismissal. Mr McLane referred to The Australian Workers' Union, Western Australian Branch, Industrial Union of Workers, v. Co-Operative Bulk Handling Ltd (No. CR 294 of 1984) and Edward M. Morgan v. Co-Operative Bulk Handling Ltd (No. 636 of 1984) as authority for the proposition that— " If individuals are engaged in a fight and subsequently are dismissed for misconduct, generally that is taken as the end of the matter. However, if one or any other number of perpetrators can show that they were innocent victims, then of course it is an injustice to inflict upon them the ultimate sanction of summary dismissal because they had the misfortune to be dealt with improperly by a fellow workmate." [64 WAIG 1355 at 1356J The matter now before the Commission, however, is distinguishable from the CBH matters (supra) in that the Applicant was not involved in a physical altercation. A matter referred to by Mr Macaree (Arthur John Walsh and The Farmers Federation Investment Company Ltd trading as Fanners Weekly—70 WAIG 1584) as authority for the proposition that a dismissal effected in circumstances where obscenities are called but a fight does not actually result is also distinguishable on the facts. The question in these proceedings cannot be answered by reference to what has happened in other circumstances where a fight actually occurred. The question is to be answered by a consideration firstly of whether there has been a breach by the Applicant of the express or implied terms of the contract or a demonstrated intention not to be bound by those terms, and secondly by assessing whether the breach is sufficiently serious to allow a summary termination of the contract (see Macken, McCarry and Sappideen (Third Edition) at p. 194). In this context the obligation upon the employer is to show on balance that the misconduct had in fact occurred. That obligation may conveniently be regarded as an evidentiary onus, as distinct from the obligation which remains with the party who alleges that there has been oppression in justice or unfair dealing on the part of the employer towards the employee to establish the fact [Newmont Australia Ltd v. The Australian Workers Union, West Australian Branch, Industrial Union of Workers (68 WAIG 678 at 679)]. As Mr Macaree correctly stated, the question to be investigated by the Commissioner is not a question as to the respective legal rights of the employer and employee but whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right. [Miles v. The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (65 WAIG 385) (The Undercliffe Nursing Home Case)]. On balance I find that the Respondent has not discharged the onus of showing that the Applicant misconducted himself in such a way as to demonstrate a breach of the express and implied terms of the contract or that he had demonstrated an intention not to be bound by its terms. To the extent that there was misconduct I do not consider that it was of such a serious nature as to justify the summary dismissal of the Applicant. The conduct of the Applicant certainly reflected unac- ceptable behaviour deserving of a reprimand and warning. It was demonstrated, however, that his role in the incident was somewhat different to that of the other participant, and that the ultimate sanction of summary dismissal in the 2848 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 72 W.A.I.G. circumstances was not a fair exercise of the employer's rights. It could not be said that the actions of the Applicant were so serious as to amount to a rejection of the employment contract. A review of the witness evidence for both the Applicant and the Respondent reveals a number of fundamental facts which were consistent throughout. Firstly, there was an ongoing but intermittent exchange of words between the Applicant and Mr X which commenced as normal bar room banter but which became more intense as time progressed, culminating in both persons using abusive and offensive language towards one another. There is little doubt on the evidence that both Mr X and the Applicant were equal participants in this behaviour. Mr X was regarded as being on duty at the time, because of his role as Weekend Duty Manager. The Applicant was not on duty. While there was evidence that there were some patrons in the vicinity where the events described had occurred, there was no evidence that they observed or were affected by those events or that they caused them to leave the premises as the Respondent suggested. The nature of the exchanges between the Applicant and Mr X was such that not all of the witnesses considered that anything seriously untoward was occurring until Mr X confronted the Applicant. In this respect Mr Henderson, the Casino security officer, said that he had entered the Sunset Room Casino and observed the exchanges between the Applicant and Mr X for something like 45 minutes. However, all of the other witnesses to the incident said that while they had observed that ill-feeling was developing between the Applicant and Mr X they did not note it to be a matter of concern until Mr X got to his feet and attempted to get the Applicant to fight him outside of the premises. In fact in his evidence Mr Abdulla commented that even when Mr X first rose to his feet nobody believed that there was going to be a fight and that it looked "like a joke" [Transcript p. 53], None of the witnesses formed the impression that a fight inside the premises may have occurred. There was no actual physical altercation between the Applicant and Mr X and in fact the evidence revealed that Mr Abdulla, who was present at the time, had control over the situation. Partly as a result of Mr Abdulla's influence, the Applicant refused to respond to the challenge by Mr X to take their dispute outside the premises, remained in his seat and turned away from Mr X. The only physical exchange which occurred was when Mr X was placed in a choker hold by the Casino security officer, cutting off his supply-of air. In his effort to break free of the hold placed on him by the Casino security officer, Mr X accidentally struck the Applicant in the back of the head. This was the only blow that was struck and even then the Applicant accepted Mr Abdulla's observation that the blow was accidental and responded to his direction not to retaliate. Although it was acknowledged that in the exchanges between the Applicant and Mr X, the Applicant made comments which caused Mr X offence, it was considered by those present that Mr X was the aggressor when the incident came to a head and that the Applicant exercised considerable restraint in refraining from being drawn into a fight. With the exception of Mr Finnin, the witnesses called to give evidence on behalf of both the Applicant and Respondent expressed the view that the Applicant was not at fault. According to two witnesses, this view was expressed by them to Mr Finnin when they were interviewed by him in the course of his investigation. The evidence also revealed that both the Applicant and Mr X were good employees who had been on friendly terms and that their actions on the night in question were out of character. According to Mr Finnin in the Schedule to the Notice of Answer and Counter Proposal lodged with the