David Sherman v Peabody Coal Ltd [1998] FCA 140 (27 February 1998)

Last Updated: 4 March 1998

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether threats of physical harm made to supervisor - whether employer had valid reason to terminate having regard to conduct of employee.

Workplace Relations Act 1996 s 170DE(1)

Reader v Wyndham Lodge Nursing Home Ltd, Industrial Relations Court of Australia, unreported, 26 March 1997, Moore J referred to

AWU - FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 referred to

Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 referred to

Cornwall v Qantas Airways Limited, unreported, 8 December 1997, Drummond J referred to

Cosco Holdings Pty Ltd v Thu Thi Van Do, 4 December 1997, unreported considered

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 applied

Sangwin v Imogen Pty Ltd, unreported, Industrial Relations Court of Australia, von Doussa J, 8 March 1996 distinguished

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 applied

Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 applied

Mainsbridge v Murdoch University Industrial Relations Court of Australia 13 February 1998,

Madgwick J, unreported, followed

SHERMAN v PEABODY COAL LTD

NI 2335 OF 1997

MOORE J

SYDNEY

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2335 of 1997

BETWEEN:	david SHERMAN Applicant
AND:	PEABODY COAL LTD Respondent
JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Subject to orders 2 and 3, the application for review is dismissed.

2. Order 2 of the orders of the Judicial Registrar of 13 June 1997 is varied by ordering reinstatement of the applicant to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination.

3. Order 3 of the orders of the Judicial Registrar of 13 June 1997 is varied by ordering the respondent to pay the applicant the sum of $92,632.30 within 21 days of today less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2335 of 1997

BETWEEN:	DAVID SHERMAN Applicant
AND:	PEABODY COAL LTD Respondent

JUDGE:	MOORE J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

This is a review of a decision of a Judicial Registrar in relation to an application under 170EA of the Workplace Relations Act 1996 concerning the termination of the employment of the applicant, Mr Sherman, on 6 November 1996. The respondent employer is Peabody Coal Ltd ("the company"), which operates a coal mine in the Hunter Valley. The review was conducted as a hearing de novo. Oral evidence was called and witnesses were cross-examined. Evidence-in-chief was either in an affidavit form or was the transcript of the evidence-in-chief given before the Judicial Registrar. Most of the exhibits before the Judicial Registrar were tendered in the review.

The Facts in Outline

The following is a description, in broad outline, of the circumstances leading to the termination of Mr Sherman's employment. For reasons which will become apparent later, I will gloss over divergences in the evidence about some events.

Mr Sherman (also known as `Darc' or `Darcy'), commenced employment as a welder/boilermaker with the company at its Ravensworth Mine on 31 July 1985. The reasons the company gave for terminating his employment are in a letter to him dated 6 November 1996 which read:

"The specific allegations made against you were that, on Wednesday, 6th November, 1996, during a conversation between yourself and Mr Tickle, your Team Leader, you threatened Mr Tickle by saying words to the effect that you are out to get him and, as far as you are concerned, you will get him, and that what was happening was not finished by a long shot. When Mr Tickle asked you if you were threatening him, you responded by agreeing and saying words to the effect that it won't do you any good as you don't have a witness.

During the investigation, you denied making the alleged threats or any similar threats.

After consideration given to both accounts of the conversation, the Company believes that, on 6th November, 1996, you made threats against Mr Tickle, and that you had both the intent and the capacity to carry out those threats.

The making of such threats is a serious offence and deemed by the Company to be gross misconduct. The Company will not condone threatening behaviour.

Gross misconduct is a dismissible offence, and you are therefore advised that your services are terminated..."

There was no issue that Mr Sherman and Mr Tickle spoke on Wednesday 6 November 1996. A central issue in the proceedings was what was said. In order to understand the evidence about what was said, it is necessary to refer to earlier events that involved Mr Sherman in his employment with the company. They provide, in part, the context in which the conversation between Mr Sherman and Mr Tickle took place. Mr Sherman had suffered gross and humiliating harassment at the hands of co-workers, which culminated in a successful application by Mr Sherman for workers' compensation. The hearing of the compensation claim concluded on 10 October 1996 though judgment had not been given by 6 November 1996. The harassment took various forms including Mr Sherman being suspended, partly naked with his pants down, from a roller door in the boilermakers' workshop where he was then working, and photographed. The photographs were placed on a notice board. A dead snake and grease were put in his tool box and fire extinguishers emptied into it. Dead eels were placed in his stored work clothes. Graffiti, in the form of a swastika, was sprayed on his locker. Mr Sherman's skin is slightly dark in colour and he said he had African negro forebears. A noose was hung in the workshop. It symbolised the suicide of Mr Sherman's nephew and was hung on the anniversary of his death. A dummy was created of a man with a helmet on and a pipe out of it. It symbolised the attempted suicide of the ex-husband of Mr Sherman's de facto wife. While it is not entirely clear, the reason for this harassment related to a relationship Mr Sherman had established with his de facto wife who was then married to another.

On 6 December 1994 Mr Sherman was transferred from the boilermakers' workshop, where the harassment had occurred, to the work team of Mr Tickle, an experienced supervisor at the mine. The company also provided psychological counselling to Mr Sherman under an employees' assistance program. The consulting psychologist, Ms Ros Gould, advised Mr Sherman not to work in the boilermakers' workshop.

On 22 December 1995 Mr Sherman met with Mr Tickle and Mr Grant Farrar, who was the mine mechanical manager. The subject of the meeting was the time Mr Sherman was taking off to visit Ms Gould. There was a specific question raised at this meeting about the time at which the appointments were being held. During the course of the meeting Mr Sherman said to Mr Farrar that he was "an arsehole and a liar". This incident gave rise to a meeting on 29 September 1995 attended by Mr Sherman, Mr Farrar, Mr Tickle, Mr Ted Anderson and Mr Jennings. Mr Jennings was the new mine manager and Mr Anderson was a union delegate representing Mr Sherman. At that meeting Mr Sherman was given what was described as a stage 2 oral warning, which results in a note being placed on the employee's personnel file. After he was given that warning, Mr Sherman said that he was not taking it and slammed his hard hat down hard on the table in front of Mr Jennings and stormed out of the room. A further meeting took place in January 1996 when the warning was withdrawn.

On 5 February 1996 Mr Jennings had a conversation with the previous mine manager, Mr Buffier. Mr Buffier relayed to Mr Jennings an account of an incident involving Mr Sherman and an industrial chaplain, Rev Richer. Rev Richer had told Mr Buffier of an incident in which Mr Sherman had threatened Rev Richer with physical harm. The threat was made because Mr Sherman believed Rev Richer had been saying things concerning him which involved a breach of Rev Richer's obligations to maintain confidences because of his position as an industrial chaplain.

On 12 July 1996 Mr Tickle held a meeting with his team and discussed Mr Sherman. Mr Tickle made an observation to the effect that if Mr Sherman had been killed in an accident involving a fork lift that had occurred earlier, there would be no need for the workers' compensation proceedings involving Mr Sherman.

The chain of events immediately preceding the termination of Mr Sherman's employment commenced on the morning of 31 October 1996. At the beginning of the shift there was a discussion between Mr Tickle and Mr Sherman about what work he would do. There was no issue that such a discussion occurred and generally what was said. However the evidence as to what was precisely discussed diverged in material respects. Generally, however, it concerned whether Mr Sherman would go to the boilermakers' workshop to get a pipe bender to do a task he was being allocated. Mr Tickle viewed the incident as involving a refusal by Mr Sherman to go to the workshop. On 1 November 1996 Mr Tickle and Mr Jennings spoke by mobile phone. Mr Jennings said in evidence that Mr Tickle rang him to speak to Mr Farrar. Mr Farrar and Mr Jennings were then together in a car. The phone was in a hands free mode and Mr Tickle told Mr Farrar about the incident the preceding morning involving Mr Sherman's refusal to go to the boilermakers' shop. Mr Tickle's account in his evidence was that after he reported the matter to the acting mechanical mine manager, Mr Branch, he was later rung by Mr Farrar using his hands free car phone.

Mr Tickle and Mr Jennings met with Mr Sherman on 4 November 1996 over what was viewed as his refusal to enter the boilermakers' workshop. Mr Anderson was also at that meeting. By the end of the meeting, Mr Sherman had agreed to enter the shop if so instructed. At this meeting, Mr Sherman complained that Mr Tickle had called him insulting nicknames and complained about what had been said about the accident involving a fork lift in the July 1996 team meeting. On 5 November 1996 Mr Tickle held a meeting at which he told his work team about the two complaints which Mr Sherman had made about him. Mr Sherman had a day off and was not present at the meeting.

The following day, Mr Tickle told Mr Sherman about his talk with the work team. This is the critical conversation of 6 November 1996.

Shortly after the conversation with Mr Sherman, Mr Tickle met with Mr Jennings and told him about it. Mr Tickle said he would make a note of it and said he would give it to Mr Jennings. He did and this note was in evidence. It states:

"6/11/96.

Discussion with D Sherman

Explained to him how I had a team meeting to discuss what had happened after his incident last Thursday afternoon shift.

He claimed that it was a private matter and should not be discussed with the team.

Pointed out I had wanted all the team together but there were people off at various times for the next 3 weeks and I wanted to attend to it straight away. I explained that it was a team matter to the extent they should know when you will go there. Informed him team had been told if it was a job that required two people someone would go with him. If it was a one man job then he was expected to go on his own.

I then explained that I had asked the team to be open and honest with each other and if someone said or did something that hurt or offended another person that person should discuss it straight away and sort it out. The team agreed to do this.

David Sherman then stated that I was unbelievable coming up and talking to him after what I had done to him.

He then stated he was out to get me and as far as he was concerned he would get me. Told me that what was happening was not finished by a long shot. Asked him if he was threatening me, he agreed but it would not do me any good as I did not have a witness. Told him I might have my tape recorder with me. He told me he would fix me up in court.

We continued to discuss the problems we were having but he would not come out and tell me straight why he had changed so dramatically.

Told me I did not have a team.

A number of the team had it in for me and I would have to watch my back.

Claimed he had been warned not to trust me.

Claimed I would turn team against him.

After a lot of discussion it appears he believes I could have supported him in his court case and I lied in my statement to the Co.

He then told me had not finished with me regarding the matters brought up at Monday's meeting and he would be seeing Richard before the end of the week. He stated under the statement put out by Peter Fuss I was guilty of discrimination. I stated that I had discussed the incident with Richard. He asked me if I lied my way out of that.

I tried to tell him he had the wrong perception of me but he would not listen or change his mind. He then claimed he was going to watch his back as he was sure I was now out to get rid of him. Told him if there was any gross disobedience then I would follow it up and if anything happened to him it would be caused by his actions.

Thanked him for the discussion.

Note: Following comment was made during the discussion but not sure of sequence. David Sherman stated he was not sure if I was doing this on my own or was set up by the Company."

Mr Sherman made a written record of this conversation but it is not in evidence. He has given an account on two occasions of what, in its entirety, was said. His account in cross-examination before me was to the following effect though I have altered the form in which it appears in transcript:

"He [Mr Tickle] said, `I want to talk to you.'

I [Mr Sherman] said, `I don't wish to talk to you.'

He said, `I'm going to anyway.'

He said, `I had a toolbox talk with the crew yesterday.'

He said, `I told the men to be careful what you say to Darce as he might use it against you.'

I said, `You had no right to discuss with the crew what was said in the meeting with the company on Monday, 4 November.'

I said, `Look what you've done.'

He said, `What have I done?'

I said, `You couldn't tell Richard Jennings the truth about the toolbox talk.'

He said, `I've spoken to Richard Jennings.'

I said, "What did you say to him?'

He said, `That's between Richard and me.'

I said, `You couldn't tell the truth with your statement to the Compensation Court.'

He said, `What did I say?'

I said, `The coalmines insurance barrister asked me did you, Rob Tickle, say to me when I first came to the fitter's shop, "there will be no sleeping on night shift".'

I said, `I approached you on a number of occasions and I took you to the boilermaker shop and I showed you the damage that had been done.'

He said, `In my statement to the court I told them about the incident with the eels and also the grease that had been put in your locker.'

I said, `Bourke accused me in court of bashing my own son.'

I said, `I'll only talk to you if it's work related.'

He said, `We are a team and we can work together as a team.'

I said, `You lost that when Andrew Hampson, Andrew Brown and Ken Ingol went on the roster.'

He said, `There are different men on the crew now and we can still be a team.'

I said, `When I first came to the fitter shop I was told that you could not be trusted.'

I said, `I tried to give you the benefit of the doubt; you have stabbed me in the back and I'm not the only person you've done that to.'

He said, `Who said that?'

There was a pause.

He said, `I might be taping you.'

I said, `This is a one on one conversation and it is not finished yet.'

I said, `I suppose I'll have to watch myself now, especially on night shift.'

I said, `I hope you can sleep at night knowing that you haven't told the truth.'

He said, `I can live with myself.'

He left.

With comparatively minor differences, it was the account given by Mr Sherman to the Judicial Registrar.

Later on 6 November 1996, Mr Tickle met with Mr Jennings and Mr Fuss, the company's human resources manager. Mr Tickle reiterated his earlier report of the conversation with Mr Sherman, affirmed that he believed that Mr Sherman had been threatening violence against him, and stated that Mr Sherman was lying if he denied his version. As a result of this conversation and further discussion with Mr Fuss and Mr Farrar, Mr Jennings requested that Mr Sherman be suspended on full pay pending further investigation, and that a union delegate be present during the investigation.

The further investigation took the form of a meeting later in the day on 6 November 1996, attended by Messrs Jennings, Fuss, Farrar, Sherman, and Mr O'Toole, a company industrial relations officer, and two union delegates, Mr Finlay and Mr Anderson. Mr Sherman again denied the allegation that he had threatened Mr Tickle. Mr Jennings adjourned the meeting and, with Mr Fuss, spoke again to Mr Tickle who affirmed his allegations. Mr Jennings decided, on the basis of his discussions with both Mr Tickle and Mr Sherman, that Mr Tickle was telling the truth. During this break, Mr Finlay discussed Mr Sherman's options with him and recommended that Mr Sherman should consider resignation in order to retain his entitlements. Mr Sherman declined. He was dismissed later that day.

What was said on 6 November 1996

It is necessary to determine what was said by Mr Sherman in his conversation with Mr Tickle on 6 November 1996. In my opinion, the written note made by Mr Tickle shortly after the conversation is of central importance in determining what was said. I say that because the evidence of Mr Tickle about what Mr Sherman said, his evidence about what he told Mr Jennings and others on 6 November 1996 concerning what Mr Sherman had said, and the evidence of Mr Jennings as to what Mr Tickle told him on 6 November 1996 all generally accords with the note Mr Tickle made. This is not surprising. If the note accurately records the conversation then one would expect that what Mr Tickle said on 6 November 1996 about the conversation and what he now says about it in evidence would broadly correspond even allowing for difficulties associated with recalling words spoken over a year after the conversation took place. If, on the other hand, the account in the note was a false or inaccurate account then it is reasonable to expect that on 6 November 1996 Mr Tickle would have adhered to that false or inaccurate account in his conversations with Mr Jennings and Mr Fuss and may also give a false account when giving his evidence. Mr Sherman has consistently denied the conversation was in the form described in the written note, both in his evidence before the Judicial Registrar and before me. He also denied critical parts of it when they were put to him by Mr Jennings on 6 November 1996.

In my opinion, the key to ascertaining what was said in the conversation between Mr Tickle and Mr Sherman on 6 November 1996 is whether or not it is probable the written account prepared by Mr Tickle was a false or inaccurate one. It would be false or inaccurate if either Mr Tickle deliberately set about reconstructing a conversation that did not occur or, at the time he recorded the conversation in the note, his recollection of it was deficient. Before considering this issue in detail it is convenient to briefly describe the legal context in which the written statement is considered. The Evidence Act 1995 (Cth) allows a written statement recounting facts to be tendered as a means of proving those facts. Section 64 provides:

"64(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) ...

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person; or

(b) ...

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave."

In the present proceedings the written note of Mr Tickle was admitted without objection even though the strictures of s 64(4) were not complied with. The significance of a document such as the written note made by Mr Tickle was discussed by me in Reader v Wyndham Lodge Nursing Home Ltd, Industrial Relations Court of Australia, unreported, 26 March 1997:

"Section 55 of the Evidence Act 1995 (Cth) posits a test of whether evidence is relevant. It is whether it could, if accepted, rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact is (scil. - in) issue. A person may see, or otherwise experience, an event and state shortly after what they saw or experienced. It may be a statement made orally or one made in writing. Both are forms of communication.

The admissibility of evidence of a prior consistent statement of a witness about an event in respect of which evidence can or might be given is, at common law, an issue of some complexity. However s 64 of the Evidence Act, 1995 (Cth) permits the admission of such evidence, notwithstanding that it was hearsay of the type referred to in s 59. That is, a previous representation by a person, intended to prove the existence of a fact that the person intended to assert by the representation.

Section 64 addresses a number of permutations. Relevantly, it provides that
s 59 does not preclude the reception of evidence in civil proceedings of a representation by a person called to give evidence if the asserted fact to which the representation was made was fresh in the memory of the person who made the representation. `Representation' is defined in the dictionary as including an express representation in writing ...

...

Section 64 mirrors, in some respects, s 38 of the Evidence Act 1938 (UK) which renders admissible a document containing a statement tending to establish a fact about which direct oral evidence might be given. Section 38 has been replicated in evidence legislation in Australia. It is necessary for the maker of the statement to have personal knowledge of the matters dealt with by the statement, and the weight, if any, to be attached to the statement depends on matters including whether it was made contemporaneously with the event it describes. In Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75, the Court of Appeal considered the admissibility of a written statement made three to four weeks after an industrial accident. Admissibility depended on a provision of the Evidence Act 1938 (UK) which is not presently relevant. However Denning LJ observed at 78:

`Statements made by witnesses, within a reasonable time after the accident, in writing and signed, should be generally admissible. They are usually of far more weight than evidence given years after the event.'

While qualifications can be made to this statement, and are evident in the debate about the extent to which statements might be viewed as forming part of the res gestae: see for example, Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267 at 273, it nonetheless represents, in my opinion, an unexceptionable statement."

It is unlikely, in my opinion, that the account in the handwritten note is inaccurate because, at the time it was written, Mr Tickle's recollection of what was said was faulty or deficient. It is not entirely clear from the evidence when precisely the note was written. Mr Tickle's evidence was to the effect that he spoke to Mr Sherman after he had spoken to another team member, Mr Shearer. This occurred some time after smoko which was at 9.10 am on 6 November 1996. Mr Tickle's evidence was that after the conversation with Mr Sherman, he regarded the threats as serious and "then went to Mr Jennings' office to report the matter". According to Mr Tickle, he had a brief conversation with Mr Jennings and then wrote the note. While Mr Tickle was not examined about the time which elapsed between the conversation and when he made the note, it would appear to have been, on his evidence, within an hour or so of the conversation with Mr Sherman.

Mr Jennings' evidence was that he was approached by Mr Tickle just before lunch time on 6 November 1996 when Mr Tickle spoke to him about the conversation with Mr Sherman. After this conversation Mr Tickle went away and returned a few minutes later with the note. Proceeding on the basis that lunch time was between midday and 1 pm, the preparation of the note on Mr Jennings' account, was three hours or so after the conversation had occurred at the most. Mr Fuss also gave evidence that bears upon when the note was written. He said that he was contacted by Mr Jennings on 6 November 1996 just after 12.15 pm. It is relatively clear from the evidence of both Mr Tickle and Mr Jennings that this contact took place shortly after Mr Jennings had met with Mr Tickle and Mr Tickle had written the note. This would mean that the note was written some time before, and probably shortly before, 12.15 pm on 6 November 1996. Mr Sherman's evidence was that the conversation he had with Mr Tickle took place at 10.30 am.

Having regard to the totality of the evidence it is likely that the written note was made by Mr Tickle no more than three hours after the conversation occurred. It is unlikely, in my opinion, that at that time Mr Tickle's recollection of what was said had become sufficiently unclear to result in his written account constituting a distortion of at least the critical parts of the conversation.

The question that then arises is whether the note was a deliberate concoction by Mr Tickle of what had been said. If it did the obvious question is what would have motivated Mr Tickle to create a false document and to what end.

One possible explanation derives from the breakdown in the relationship between Mr Sherman and Mr Tickle. They had generally a good relationship and shared common interests which they discussed. However, it is clear that at least by the morning of 31 October 1996 their relationship was beginning to deteriorate. On either account of the events of that morning, there was a confrontation between Mr Tickle, the supervisor, and Mr Sherman, his subordinate. It was a confrontation that moved Mr Tickle to raise the matter with more senior managers at the mine and also to make a note about it which is in evidence. One matter noted by Mr Tickle was that the refusal, as he perceived it, had taken place in front of the team. Whatever view he may subsequently have formed about the reasonableness or otherwise of Mr Sherman's conduct, it is relatively clear he viewed it at the time as unreasonable. It was for that reason that the matter was taken further.

Mr Tickle believed Mr Sherman did not recognise and respond to his authority as team leader. Mr Sherman subsequently criticised Mr Tickle when being rebuked for his conduct by Mr Jennings on 4 November 1996. Not only were the criticisms made, they related to events several months before. Moreover they led to Mr Tickle himself being rebuked by Mr Jennings. The reaction of Mr Tickle to what Mr Sherman had done is, I think, revealed in the following passage from his cross-examination. It concerns Mr Sherman raising with Mr Jennings what had been said in the July 1996 team meeting:

"... the relationship that Mr Sherman and I had, and I think we had a very good relationship, and the length that I'd going to help him, when he would then turn around and bring that up after so long in an attempt to discredit me, I was very concerned about what he would do with other people that he had a lesser relationship with."

Mr Tickle felt somewhat betrayed by Mr Sherman whom he had been assisting recover from the trauma of the harassment. In my opinion, by the end of the day on 4 November 1996 the relationship between Mr Tickle and Mr Sherman had deteriorated markedly and Mr Tickle was aggrieved by what Mr Sherman had done both on 31 October 1996 and at the meeting on 4 November 1996 and probably harboured some ill-will towards Mr Sherman.

It was submitted by counsel for Mr Sherman that the conduct of Mr Tickle the following day, 5 November 1996, of telling his team about the complaints Mr Sherman had made the previous day was mischievous or "a little nasty". Mr Jennings gave evidence, which I accept, that he had a conversation with Mr Tickle on 5 November 1996 before the team meeting about whether the team should be told of the concerns of Mr Sherman concerning the use of nick-names. Mr Jennings endorsed the suggestion. However, he was not then told, if Mr Tickle then knew, that Mr Sherman would not be present. Mr Jennings was told that the next day. Notwithstanding that Mr Jennings thought it was a good idea and told Mr Tickle so it was nonetheless, in my opinion, insensitive of Mr Tickle to discuss Mr Sherman and his concerns at a meeting when Mr Sherman was not present. Mr Tickle would have known of Mr Sherman's acute concerns about the attitude towards him of co-workers. Discussing him in his absence would have done nothing to lessen those concerns and could have heightened them. That insensitivity, was at best, a manifestation by Mr Tickle of indifference towards Mr Sherman and I cannot entirely discount the possibility that it was, as suggested by counsel, mischievous. That is, it was done to pay back Mr Sherman for his having raised complaints against Mr Tickle the previous day. Mr Tickle's explanation in cross-examination for discussing the matter and, in particular, doing so in the absence of Mr Sherman was not, in my opinion, a credible one.

This is the immediate background against which Mr Tickle wrote his account of the conversation on 6 November 1996 and pursued the matter with Mr Jennings. It does not point obviously to a conclusion that the relationship between Mr Tickle and Mr Sherman had deteriorated to a point where Mr Tickle was prepared, in essence, to fabricate an account of a conversation out of malice and presumably for the purpose of disciplinary action being brought against Mr Sherman with the prospect of his dismissal. However, it is not a conclusion I can entirely discount. The impression I gained of Mr Tickle in the witness box is that, whilst outwardly a quiet if not a reserved man, his character was more complex than initial appearances might suggest. While I would not wish to place great store in this impression, it does allow for the possibility that Mr Tickle's conduct in writing what might have been a false report on 6 November 1996 was actuated by a developing malevolent attitude to Mr Sherman.

However, a number of other matters need to be considered in determining what was said on 6 November 1996. Mr Jennings gave evidence, which I accept, that his perception of Mr Tickle when Mr Tickle first approached him on 6 November 1996 following the conversation with Mr Sherman, was that he was in an agitated state or, as described elsewhere, clearly distressed. While it is possible that he could have been agitated by a conversation of the type Mr Sherman says occurred, it is more likely that his agitation and distress would have arisen from a conversation in which Mr Tickle believed he was being threatened by physical violence. Another consideration is whether it is inherently likely that a conversation would have taken place of the type described by Mr Tickle or of the type described by Mr Sherman in his evidence. Neither version, in my opinion, is out of place in the context of events as they were developing and both version are, in that context, inherently plausible. Another factor in considering whether the account of Mr Tickle reflects what happened is the evidence concerning Mr Sherman's conduct on 22 December 1995 when he accused Mr Farrow of being an "arsehole and liar" and his conduct at the subsequent disciplinary meeting on 29 December 1995 when he threw his hard hat down on the table and stormed out of the meeting. While it is consistent with Mr Sherman having the capacity to react emotionally in tense circumstances, I do not think it adds much in the task of ascertaining which account of the conversation should be preferred.

Plainly enough I need to take into account the repetition, under oath, by Mr Tickle of his account of the conversation and Mr Sherman's account of it under oath as well. Mr Tickle did not present as a credible witness. There were instances where he was cross-examined about evidence he had given before the Judicial Registrar and evidence he gave in the proceedings before me. In several of them he gave directly contradictory evidence and in others he gave evidence which was not entirely in accord with the evidence he had earlier given and refused to acknowledge or, acknowledge in an unqualified way, the apparent inconsistency. That doubts arise about his credibility from the evidence he gave not only affect whether that evidence should be accepted but also point to the possibility that he may have given a false account of the conversation in his written note.

There was nothing about the way Mr Sherman gave his evidence that suggested it was being embellished or coloured. However, Mr Sherman's account when he gave evidence before me of what was said in the conversation appeared fairly studied and I gained the impression that it was more the repetition of an account he has been giving since 6 November 1996 rather than his present recollection of what was actually said. Nonetheless, it probably reflects no more than what he now believes was said and, in that respect, his evidence was unexceptionable. It may be accepted that Mr Sherman had an obvious motive in denying Mr Tickle's account of the conversation on 6 November 1996 and for subsequently adhering to that denial. Mr Tickle's account of the conversation on 6 November 1996 put at risk Mr Sherman's job and an acceptance of that account in the subsequent legal proceedings put at risk Mr Sherman's prospects of succeeding. I should add that Mr Sherman's account of the conversation is consistent with a contemporaneous note taken by Mr O'Toole at the meeting on 6 November 1996 of what Mr Sherman was then saying had been said in the conversation with Mr Tickle.

The legislative scheme under which this application is to be determined requires the company to establish that it had a valid reason for terminating the employment of Mr Sherman. Proceeding, for present purposes, on the basis that it is necessary for the company to establish, on the balance of probabilities, that Mr Sherman said the things recorded by Mr Tickle in his written note, I am satisfied he did.

Ultimately a consideration of the circumstances as they existed at 6 November 1996 provide, in my opinion, a better guide to whether the conversation occurred as Mr Tickle noted it. I am not satisfied that by the morning of 6 November 1996 a situation had developed where Mr Tickle would contrive a situation involving him preparing a false account of a conversation with Mr Sherman for ulterior and malevolent purposes. I think it is more likely than not, that the note he made on the morning of 6 November 1996 generally records the conversation he had with Mr Sherman. In reaching this conclusion I am not implying that Mr Sherman either on 6 November 1996 or thereafter deliberately lied about what had been said. The conversation as recorded in Mr Tickle's written note was one in which Mr Sherman was plainly agitated. His agitation arose against a background in which the gross harassment to which he had earlier been subjected had recently been ventilated in the court proceedings and he perceived that his co-workers were again turning against him as a result of what had been said by Mr Tickle at the team meeting on 5 November 1996. Mr Sherman gave evidence, which I accept, that he was treated coolly by his co-workers on the morning of 6 November 1996. That is, following the team meeting. Mr Sherman believed, whether rightly or wrongly, that Mr Tickle and others had been involved either directly or indirectly in the litigation in a way that was contrary to his interests. He also believed, for good reason, that Mr Tickle, with whom he had a good relationship, was now acting against him, in contrast to his earlier nurturing and supportive role, and was parading personal matters involving him in front of others working at the mine. In those circumstances it is quite possible that Mr Sherman's capacity to recall shortly after the conversation precisely what had been said was limited. Mr Sherman said, and I accept, that he was very distressed during the meeting with Mr Jennings on the afternoon of 6 November 1996. It may be accepted that at that meeting he denied threatening Mr Tickle. However, his denial was being made in a context where the import of what was being said against him was that he had been threatening physical harm to Mr Tickle. That was the view that Mr Tickle had taken of the effect of the words used by Mr Sherman and accepted by Mr Jennings. This matter, as I shortly discuss, assumes some importance in these proceedings.

Was the termination of Mr Sherman's employment in contravention of s 170DE?

Having accepted, that as a matter of fact, the conversation between Mr Sherman and Mr Tickle occurred as recounted by Mr Tickle, it is necessary to determine whether the company had a valid reason for terminating Mr Sherman's employment. Counsel for the company submitted it did and, in opening, relied both on Mr Sherman's conduct and the operational requirements of the company, though the latter consideration was not developed in final submissions and appears to me to coalesce with the former consideration.

Of some significance, in my opinion, is the language actually used by Mr Sherman in Mr Tickle's account of what was said. The threatening statements made by Mr Sherman were that he was out to get Mr Tickle and as far as he was concerned he would get Mr Tickle. When Mr Sherman was asked by Mr Tickle whether he was threatening him, Mr Sherman agreed but said it would not do Mr Tickle any good as he did not have a witness. Mr Tickle took these words to be a threat of physical violence and that is the view he relayed to Mr Jennings when he met him some time after the conversation but during the morning of 6 November 1996. It was also the view taken by both Mr Jennings and Mr Fuss of what had been said when they each read the note prepared by Mr Tickle. For my part, I do not view the words as clearly having this meaning. I have already discussed the background against which this conversation took place and, in particular, the changes that have taken place to the relationship between Mr Sherman and Mr Tickle. Mr Sherman had undergone gross harassment in the workplace which had led to court proceedings which had concluded less than a month earlier. Judgment had not been given. Mr Sherman was then taking anti-depressant drugs. Mr Sherman had been seeing a psychologist about the effects of that harassment and was probably seeing her at the time of his dismissal, though there was some doubt about this. Mr Sherman's relationship with the workforce at the mine, including Mr Tickle, was a complex one with an emotional overlay affecting personal relationships. The state Mr Sherman was in is illustrated by remarks recorded by Mr Tickle in his note that Mr Sherman said:

"`(you are)' unbelievable coming up and talking to (me) after (what you) had done to (me)".

It was immediately after this statement that Mr Sherman made the statements which were construed as threats of physical violence. The statement was made in the context of Mr Sherman saying very shortly after that he would "fix (Mr Tickle) up in court". It is, in my opinion, unlikely that a person would threaten physical harm, an unlawful act involving criminal conduct, and shortly after indicate that the matter would be pursued in a court. That is, pursued by lawful means. Moreover the statements were made by Mr Sherman in the context of discussions between Mr Tickle and Mr Sherman about Mr Sherman's view of Mr Tickle as a team leader and the view that Mr Sherman seemingly had in common, at least according to him, with other members of the team which was distrustful of Mr Tickle. It is also to be remembered that later in the conversation there was a discussion about the court case and Mr Sherman's perception that Mr Tickle had lied in a statement prepared for that purpose. After that there was the further statement by Mr Sherman that he:

"had not finished with (Mr Tickle) regarding the matters brought up at Monday's meeting and would be seeing Richard before the end of the week."

I do not accept that when Mr Sherman spoke the contentious words he was intending to threaten Mr Tickle with physical violence. Rather he was telling Mr Tickle that he was extremely upset by things Mr Tickle had done and he would get back at him. To the extent that means were identified, it involved some form of legal redress or complaint to Mr Jennings.

It is true that Mr Tickle viewed them as threats of physical violence and Mr Jennings and Mr Fuss shared that view. Mr Jennings' assessment was influenced by Mr Tickle's views and his demeanour. Mr Tickle's assessment was, in my opinion, coloured by the quite clear challenge Mr Sherman was making to his authority as a team leader, and the repetition of the criticisms of others, in the context of Mr Tickle's views of Mr Sherman having changed in the way I earlier discussed in this judgment. To use the words of Mr Tickle, he viewed Mr Sherman as having engaged in conduct intended to "discredit him".

It is true that Mr Sherman subsequently believed, before the interview in the afternoon on 6 November 1996 with Mr Jennings, that his job was at risk. It was submitted by counsel for the company that this is significant. It is consistent with Mr Sherman knowing that his conduct was so grave as to put at risk his job. I accept Mr Sherman believed his job was at risk. However, he was then in an emotional state and he could well have believed that his confrontation with Mr Tickle that day, in the context of the events of the preceding week, might lead to a situation where he would be dismissed. His denials of threatening Mr Tickle with physical harm in the meeting with Mr Jennings later that day are consistent with the view I take of what he said. Moreover his failure to provide some alternative explanation or meaning for what he said is explicable by the way and context in which he was being questioned. As I earlier noted, I accept Mr Sherman's evidence that he was, during this meeting, very distressed. Only a small part of the conversation was being put to him and put to him on the basis that it constituted a threat. Nowhere in the evidence of Mr Jennings, Mr Fuss, Mr Anderson, Mr Sherman or Mr Finlay is it revealed whether, expressly, it was put that the threats were one of physical violence. However, I rather apprehend that this was the common understanding of those at the meeting. If not, a significant element of Mr Sherman's conduct was not being put to him. If, as earlier discussed, Mr Sherman did not intend the words when used directly to Mr Tickle to be a threat of physical violence, but just a threat of the type earlier discussed, then Mr Sherman's denial of threats in the later meeting are understandable.

There have been a number of instances where the conduct of employees who have fought at work has led to the termination of their employment and subsequent proceedings under the Act. There is no universal rule that conduct constituted by fighting is conduct that gives rise to a valid reason for the purposes of s 170DE(1): see AWU - FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385, Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 and Cornwall v Qantas Airways Limited (unreported, 8 December 1997, Drummond J). One would assume that threats of physical harm, or conduct that appeared to be such a threat, should be approached on the same footing. In my opinion, the conduct of Mr Sherman falls short of conduct which gave rise to a valid reason for his termination. I have earlier discussed the background against which the conversation took place between Mr Sherman and Mr Tickle. Mr Sherman's remarks were plainly unfortunate. However, they were the remarks of a man who was not, for reasons earlier given, in a state of emotional equilibrium.

During the hearing, reference was made to the recent decision of the Full Court in Cosco Holdings Pty Ltd v Thu Thi Van Do (4 December 1997, unreported). It maybe accepted that the matters raised by s 170DE(1) do not call for consideration of notions of fairness, reasonableness or justice. However, the reason for the termination must be a valid one. As Northrop J pointed out in Cosco, in adopting observations he had earlier made in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, the adjective "valid" should be given the meaning of sound defensible or well founded. While it is not entirely clear whether that element was viewed by Lindgren and Lehane JJ as a necessary element in the concept of "valid reason" their Honours did note:

"Additionally, perhaps, the word `valid', may serve to emphasise that the reason must be genuinely connected with the employee's capacity or conduct or genuinely based on operational requirements"

after having referred to the need for the existence of a genuine foundation.

Any notion of genuine connection must, in my view, involve notions of proportionality. I say that because it is unlikely that Parliament intended any aspect of the conduct of an employee established on the evidence, that was perceived by the employer as warranting termination, would demonstrate or establish a valid reason. Such an approach would denude the expression "valid reason" of any meaning.

The submissions of the parties raised issues about the scope of s 170DE(1) and the effect of the judgment of the Full Court in Cosco that appear to have been made, at least in substance, in proceedings recently determined by Madgwick J. In Mainsbridge v Murdoch University, Industrial Relations Court of Australia, 13 February 1998 not yet reported, his Honour considered similar submissions and reached conclusions with which I agree. I also agree with his Honour's reasons. Rather than paraphrase them, it is convenient to set out the lengthy relevant passage in full:

"The conclusion of Lindgren and Lehane JJ in the major judgment was that:

"[i]n the statutory context with which we are concerned, the primary work of `valid' is to exclude the reasons listed in s 170DF(1). If there are other reasons for which an employer may not lawfully dismiss an employee, then equally, no doubt, such a reason will not be a `valid' reason. Additionally, perhaps, the word `valid' may serve to emphasise that the reason must be genuinely connected with the employee's capacity or conduct or genuinely based on operational requirements."

However, Lindgren and Lehane JJ had earlier pointed out that:

"To say, as the section does, in addition that the reason must be `valid' is, no doubt, to add a further element to that requirement of a genuine foundation..."

Their Honours had also earlier held that the words "based on" (without resort to "valid reason") required that the foundation of the reason for termination be "real and not specious". With respect, such a construction is plainly called for. As counsel's submissions acknowledged, "connected with" must likewise be construed as meaning really and substantially, that is to say (perhaps among other things) genuinely, connected with.

(2) The plain meaning of "conduct" is clear

One turns then to the subject matter of the connection, which is "the...conduct of the employee". In its ordinary meaning this is a clear expression which fastens attention on an employee's actual conduct. In my opinion, there is no warrant for, in effect, substituting for it, some other expression, such as "the conduct of the employee as honestly and reasonably perceived by the employer after sufficient inquiry" (see Imogen v Sangwin Pty Ltd, considered below).

(3) Remedial legislation

The relevant provisions of the Act and the Convention on which those provisions were based were evidently conceived as remedial instruments for the benefit of employees at large, including those with few resources and subject to unscrupulous employers, as well as those more blessed. The Act should be beneficially construed in favour of employees if ambiguity arises, which, as I have just indicated, in my view, it does not. Neither is there anything absurd or unworkable about the operation of the section according to what seems to me to be its plain meaning, such as might justify some such limitation thereon. The tripartite framers of the Convention, to adapt the language of Burchett J in a case about another Convention (the Convention relating to the Status of Refugees), "chose broad expressions which it is not the Court's task to constrict...Exegesis will bring help in the application of the provision but should not be permitted to replace it with a narrower formulation": Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314 at 317.

(4) Sangwin v Imogen Pty Ltd

In Sangwin v Imogen Pty Ltd (Industrial Relations Court of Australia, 8 March 1996, unreported) von Doussa J expressed a contrary view. His Honour began by observing that the provisions of the Convention and Div 3 of Part VIA of the Act were:

"intended to operate in the practical arena of commercial activity, and that in the endeavour to achieve industrial fairness it is necessary to balance the interests and well being of an individual employee against the interests of the employer, and also to have regard to matters of wider public interest which may be involved. The construction of the Act [and, I would observe, of the Convention] is not to be considered only from the viewpoint of the employee."

With those observations I respectfully agree, but the legislation was nevertheless remedial in the interests of employees.

His Honour went on to give examples: of an operator of dangerous equipment reasonably and fairly but mistakenly thought to have a medical condition that might impair the operator's capacity; a provider of care for the sick or children likewise thought to have physically abused one of his/her charges; and cases of serious risk of property damage or financial loss if employees thought guilty of unsafe practices or dishonesty were kept on. His Honour concluded:

"In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of s 170DE(1) exists for terminating the employment of the employee."

However, in my respectful view, his Honour's premises - the general considerations about a proper approach to construction of the legislation quoted above, and the practical implications of his Honour's examples - do not justify the conclusion his Honour reached. In each of the kinds of cases instanced by von Doussa J, the matter is not simply one of past conduct. Each is a case where there is an unacceptable risk of serious future harm of some kind, unless the employee's services are terminated. In reality, such cases are likely to be unusual: as von Doussa J envisaged, in many cases, steps other than termination of the employment will be reasonably open to the employer; obvious examples are transfer of the employee until the risk is shown no longer to exist, and change of the work system to remove the risk of the harm. But, where other palliatives cannot be availed of, the fact that the continuance of the particular employee's employment presents an unacceptable risk necessarily implies an "operational requirement...of the undertaking" within the meaning of s 170DE(1). That, it seems to me, is so even though, in that phrase, the significance of the notion of an actual "requirement" should not be underestimated, as I sought to show in Hozack v Church of Jesus Christ of Latter-Day Saints (Federal Court of Australia, 27 November 1997, unreported). In such a case, it is clearly necessary for the continued functioning of the enterprise in a practically acceptable way that there be no such risk. In such unusual cases, the employee will, in my view, so far as the Act and the Convention are concerned, simply have to go. Hard as that may be on an employee who is truly blameless, many another employee dismissed for reasons based on other kinds of "operational requirements" is quite without fault, and as Cosco holds, there is no element of justice or fairness involved in the concept of a "valid" reason postulated by the legislation. If termination in such cases is justified by "operational requirements", there is no necessity to read "conduct" down in the way proposed by his Honour.

I appreciate, of course, that other examples than those given by his Honour might occur or be proposed, but, for myself, I am unable to think of another that would invalidate the analysis just offered. Hence, I agree with von Doussa J in the ultimate result in such cases, but I arrive at our common conclusion by a different process of reasoning. The difference is significant in the present case, because it is not submitted that there was a reason for the applicant's termination founded on "operational requirements".

In the present case I am not satisfied that the reason the company terminated the employment of Mr Sherman was a sound defensible or well founded one. It was a decision that was entirely disproportionate to the conduct complained of and depended, in large measure, on Mr Tickle's reaction to the words spoken. Viewed objectively they were not intended to convey the meaning that Mr Tickle, and later Mr Jennings, viewed them as conveying. Mr Sherman did not engage in the imputed conduct, that is, threatening Mr Tickle with physical harm and his termination was not for a valid reason.

Contravention of s 170DC

Counsel for Mr Sherman relied on what was said to be the failure of Mr Jennings to put to Mr Sherman at the meeting on the afternoon of 6 November 1996, the understanding he had of the incident involving Rev Richer and Mr Sherman relayed to him by Mr Buffier in February 1996. There was an issue about whether it was referred to though it was plainly a matter Mr Jennings took into account when assessing which version of the conversation he would accept. However, if it was not referred to, no contravention of s 170DC would be established. That was not the conduct that was to found the termination which is what, in my opinion,
s 170DC addresses.

Remedy

The company resists an order for reinstatement. Its principal reason for doing so concerns the breakdown in the relationship between those representing the company, and Mr Jennings and Mr Tickle in particular, and Mr Sherman. The proper approach, in principle, was discussed by a Full Court of the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191:

"Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Div 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party."

In the present case I do not view the concerns of the company as warranting either the exercise of the power inherent in the expression "if the Court considers it appropriate in all the circumstances of the case", or a conclusion that reinstatement is impracticable. I do accept, however, that because of the breakdown in the relationship between Mr Sherman and Mr Tickle, it is not desirable that Mr Sherman be reinstated into the position he formerly held as a member of Mr Tickle's team. That, however, can be accommodated by the terms of the order made. An order can be made requiring the reinstatement of Mr Sherman to a position other than one in the team led by Mr Tickle. Such an order can be made under s 170EE(1)(a)(ii). The operation of that provision was discussed by a Full Court of the Industrial Relations Court of Australia in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244:

"We have already set out the terms of s 170EE(1)9A)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her `to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination'. This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made."

There was no sound evidentiary basis for concluding that a position could not be found for Mr Sherman at the mine. The fact that he may have some contact with Mr Tickle is not a ground for refusing the remedy of reinstatement nor is the ground that he has gained other employment which is far less remunerative. Nor, in my opinion, is the suggestion that reinstatement would create a safety problem. It was common ground that his remuneration lost to 6 December 1997 was $78,515.50. To that should be added a sum of $14,116.80 being further remuneration lost till the date of judgment. Save to the extent necessary to accommodate matters I have discussed in these reasons, the order I propose to make is to dismiss the application for review.

I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated: 27 February 1998

Counsel for the Applicant (Mr Sherman):	Mr M Christie
Counsel for the Respondent (Peabody Coal Ltd):	Mr H Dixon
Solicitor for the Respondent (Peabody Coal Ltd):	Minter Ellison
Date of Hearing:	18, 19 and 23 December 1997
Date of Judgment:	27 February 1998