Nyrstar workers sacked for violent punch-up in tea room that left blood spatter on notice board

“The fight involved two middle-aged men, each apparently some way from the peak fitness of youth.”

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A NYRSTAR employee who took part in a violent dust-up with a co-worker at the Lutana zinc smelter has failed to prove he was unfairly sacked as a result.

Shannon McLean said on June 30 this year, co-worker David Mitchell beat him up in the crib room, wrestling him to the floor in a flurry of punches before knocking his glasses from his face.

He said he was left with a bleeding nose that left blood spatter on the work notice board, and two black eyes.

But the fight between the “heavily set” men – one 120kg and the other 115kg – wasn’t witnessed by any of their colleagues.

Nyrstar Hobart Smelter. Picture Chris Kidd

Both men were fired a month later for serious misconduct, with Mr McLean subsequently lodging an unfair dismissal bid with Fair Work Commission, claiming he only punched Mr Mitchell in self defence.

The punch-up began after Mr Mitchell seemingly became angry that Mr McLean had a less physically arduous shift that night.

Mr McClean claimed Mr Mitchell started the fight by slamming down his hot drink on the kitchen bench before banging his fists on the table, then grabbing his foe’s shirt collar, striking his chin, and pushing him over his chair.

But Commissioner Nick Wilson, in his recently-published decision, said the two men’s accounts of what happened conflicted with each other, and also that their written statements varied from their oral evidence.

Nyrstar Hobart Smelter. Picture Chris Kidd

Mr McClean claimed he only grabbed Mr Mitchell’s clothes in an attempt to hold him off, and didn’t throw back any punches until his nose was bleeding.

But Mr Mitchell disputed that he’d thrown any punches before the men hit the ground and after they’d “shirted each other”.

Instead, he claimed Mr McLean was the antagonist and started punching him after the two contacted the floor.

He also said he told his enemy to “have a free hit” because he was a “country boy” and rationalised doing so as a way to mend things between the pair.

Mr Mitchell said as a result, Mr McClean punched him three times, leaving him with a split lip.

Commissioner Wilson said he didn’t accept Mr McLean had no choice other than to retaliate, agreeing with Nyrstar that he himself was aggressive and had the opportunity to extract himself from the fight.

He said the inconsistency in his statements was due to his attempts to persuade the commission that he’d been a “passive participant” in the fight.

“The fight involved two middle-aged men, each apparently some way from the peak fitness of youth,” he said.

“No weapons were involved other than fists. Mr McLean’s argument that offence was the only available self-defence disregards that turning around and leaving the room was clearly an option.”

Nyrstar Hobart Smelter. Picture Chris Kidd

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