CONCLUSION
18My task in this hearing is primarily to determine whether or not, in all the circumstances, Mr Likoski's dismissal was unfair. Using the language of s.84(1), that task is to determine if the dismissal was "harsh" - meaning too severe having regard to all the circumstances - "unreasonable" - meaning immoderate, excessive or extravagant - or "unjust" - meaning unfair, inequitable, undeserved or biased [ Parker v Capitol Painters and Decorators Pty Limited (1996) 68 IR 100 t p.104].
19It is trite to say that it is in an employee's own interests, and the interests of the employees with whom he works, to ensure that at all times he acts with safety at work. Mr Davis emphasised that obligation on employees in his submissions. In Vehicle Builders Employees Federation of Australia v Toyota Manufacturing Australia Limited (1987) 24 IR 784 Munro J of the former Australian Conciliation and Arbitration Commission declined to re-instate an employee dismissed on the ground that he had done a deliberately dangerous act in clear breach of safety rules known to him (hanging by his hands from a plate being moved by a mobile crane). His Honour had this to say (at p.76)
"....I find that (the dismissed employee's) action was foolish and unnecessary. His action not only endangered his own life; his action risked the trauma to his workmates and the entire workplace that a death or maiming at work causes; his action placed in balance the employment of his supervising crane chaser and the crane operator; his action repudiated the company's direct educational programme in his workplace on safety procedures..."
20An obligation is placed on employees under s.20(2) of the Occupational Health and Safety Act 2000 to co-operate with their employer and comply with any direction concerning workplace safety. BlueScope Steel acts with proper training to steelwork employees and has laid down "cardinal rules" over safety which reinforce that training and which I regard as sensible in the circumstances. Clearly, Mr Likoski's conduct on Thursday, 16 December, 2010 was a breach of those "cardinal rules" for safety.
21Indeed, as far as the Port Kembla steelworks - an acknowledged inherently dangerous place to work - in my previous decisions I have consistently raised safety issues to the level that I regard them as being a fundamental condition for all employees working there, expressing the view that a serious and wilful breach of safety conditions may, in fact, constitute misconduct and grounds for dismissal [ Abbott and Markham v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 at para.45 and 46, Zdraveski v BlueScope Steel Limited [2008] NSWIRComm 1028 at para.27 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1006 at para. 31].
22Mr Likoski described his actions on Thursday, 16 December, 2010 as a "mistake". Mr Davis disputes that claim, submitting that it was a conscious decision of Mr Likoski to walk along the narrow unfenced ledge and that he believed that he would not have been observed in what was an area of the plant which was not frequented by other staff members. It was a serious matter to BlueScope Steel, in any event.
23And it would seem to me that Mr Likoski's actions on Thursday, 16 December, 2010 were directed chiefly to avoid what he saw as possible adverse complications which may have arisen if he reported the fact that the rope had come of the drum while he was operating it and whether his incorrect handling of the crane had led to the rope being dislodged. Whilst I accept that when the rope comes off the drum - a rare occurrence, according to Mr Grey - it may not necessarily mean that the crane operator was at fault: there is no evidence before me in this hearing that Mr Likoski was at fault on this occasion. But if Mr Likoski was able to manually rectify the problem, it would have avoided any report of the incident being made. It would go without saying that the appropriate action in that case was not to attempt to hide that fact - which I believe he was trying to do - but simply to report the situation immediately to his team leader and leave it to the proper safety procedure to be followed.
24Nevertheless, as Mr Hancock suggested in his submissions, where there are grounds for dismissal in such circumstances, as I believe there was on this occasion, it is always open to an employer to chose a lesser penalty to dismissal, eg counselling or a warning, having particular regard to an employee's length of otherwise satisfactory service. It is also a legitimate function of the Commission to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: such an approach is, in fact, suggested by the word "harsh" in s.84(1) [ Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR(NSW) 231 at p.233 and Pacific Power v. Crump (1993) 48 IR 296 at p.302].
25Mr Likoski has a lengthy period of employment at the Port Kembla steelworks. He commenced working there in 1978 and was transferred to the BOS as an operator in 1982. He has worked in the BOS since that time. Mr Grey indicated in his evidence that Mr Likoski worked on overtime shifts with him and he believed he had a good working relationship with him, indicating that he was usually eager to help at work. Mr Tarrant also accepted that he was honest in revealing his wrongdoing and that he expressed what he believed to be genuine regret over the incidence.
26But Mr Likoski's employment record is not without incident and, in particular, reveals a number of safety breaches which suggests that he has a far too casual approach to workplace safety: for instance, walking into and standing in a furnace charging zone whilst metal was being poured into the furnace and a traffic infringement for riding a bicycle on the steelwork site in an unsafe manner. He has received oral and written warnings, counselling and a suspension. And, as Mr Tarrant indicated in his evidence, standing in a furnace charging zone whilst metal was being poured and walking along an unfenced area were very serious safety breaches.
27Mr Perry recorded in his written statement:
"....As shift team leader I have a practice of keeping a crew profile of issues regarding significant events, whether positive or negative, relevant to my shift team members during their time on my shift. My review of Mr Likoski's profile identified a trend that is telling to his current situation. Mr Likoski has had numerous incidents that I consider demonstrate a reckless and risk taking attitude in the way he approaches and undertakes his work at the BOS. Following each instance Mr Likoski was counselled and/or received a level of discipline aimed at correcting his behaviour to that required of a BOS operator. Mr Likoski's lack of care and consideration for his team members and crane was evident, as his team members would often report faults with the cranes immediately following a handover from him..."
28On Tuesday, 9 February, 2010 Mr Likoski received a final written warning (to accompany a four shift suspension) which concluded:
"...Please be advised that any subsequent breach in safety requirements will result in termination of employment. I ask that you reflect on your behaviour and, in particular, review the choices that you make to work safely. Our safety beliefs state that working safely is a condition of employment. I strongly urge you to speak to the company about any way it can help to improve your behaviour. The company provides a counselling service if you feel they can be of benefit..."
29Mr Tarrant indicated in his written statement that:
"....the nature of the BOS process and operations presents hazards in many forms. There are controls in place for all of these hazards and in some cases these controls include people behaving in a manner to keep themselves and others from coming to harm. We train everyone that working safely is a condition of employment on our plant. Mr Likoski has repeatedly demonstrated that he does not intend to meet that condition and that is why I must argue against any reinstatement..."
30As far as the current incident is concerned, Mr Tarrant recorded in his written statement that Mr Likoski:
"... did not report the incident immediately after it occurred. He had full knowledge of the safe work practices and he made a decision to walk 8m along a dusty walkway and expose himself to a 25m fall. These actions were deliberate and negligent. This all occurred only ten months after he had received a final warning relating to another serious breach of a safety critical procedure and had given commitments to his manager and team leader that he would not put himself at risk ever again. I have a duty of care to all employees at the BOS however. I cannot allow the deliberate and reckless behaviour of one employee to potentially put him and others at risk. Mr Likoski clearly has a different value set to what is required of employees working for BlueScope Steel and consequently I believe the termination is the correct decision and should be upheld..."
31I agree with Mr Tarrant. I consider that BlueScope Steel management has been very patient with Mr Likoski. I appreciate that Mr Likoski is an experienced and capable crane driver in the BOS. It is therefore most regrettable that he had chosen by his conduct to place his employment in jeopardy. However, in the circumstances described to me in this hearing, I see no grounds for my intervention in support of Mr Likoski and I dismiss the AWU application made on his behalf.
P J CONNOR
Commissioner
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Decision last updated: 29 April 2011