AFMEPKIU (on behalf of Anthony Malfitano) v BlueScope Steel Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

APPLICANT Ian Morrison, union official - AFMEPKIU LEGAL REPRESENTATIVES: RESPONDENT Michael Mead, employer advocate - AIG

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

AFMEPKIU (on behalf of Anthony Malfitano) v BlueScope Steel Pty Ltd

Application by AFMEPKIU on behalf of Anthony Malfitano re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Anthony Malfitano ("the Applicant") for unfair dismissal against BlueScope Steel Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 25 October 2005, in Wollongong.

The matter remained unresolved and a program for the filing of witness statements was put in place. 3 An Inspection of the work area at the Port Kembla Steelworks, in which the Applicant performed his duties, took place on 11 July 2006. 4 The Hearing took place in Wollongong on 12 and 13 July. Final submissions was by way of written submissions filed during August and September 2006. 5 At the Hearing, the Applicant was represented by Mr Ian Morrison, union official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"). Mr Drane, from the Union, also appeared as an advocate when he re-examined the Applicant. 6 At the Hearing, the Respondent was represented by Mr Michael Mead, Senior Advisor, Australian Industry Group. Mr Mead called the following witnesses: · Brett Tarrant - Technical Co-ordinator · Wayne Staff - Furnace Manager · Martin Perry - Process Melter · Terrence Moffat - Process Controller Melter · Gabriel Van Der Weyden - Furnace Shift Team Leader

7 The Applicant was employed by the Respondent from January 1975 until 4 October 2005. 8 In 2001, the Applicant was transferred to the position of Process Controller within the Basic Oxygen Steelmaking ("BOS") section of the Port Kembla Steelworks. 9 An overview of the steelmaking process is provided below, in order to understand the Applicant's role in that process, before then going into the detail of the incident that led to the Applicant's dismissal:

(a) Steel is made by "cooking" a mixture of ingredients, mainly iron ore and coke (which is made from coal), in two giant cooking pots called Blast Furnaces, to produce molten iron.

(b) This molten iron is taken to the Basic Oxygen Steelmaking plant, where it is poured into another giant cooking pot called a BOS vessel. Here the molten iron is mixed with recycled steel and other elements and heated to approximately 16500 Celsius ("C") to make molten steel.

(c) The molten steel is then poured off from the BOS vessel and sent to the Continuous Slab Caster, where it is turned into slabs of steel.

(d) Many of the slabs are rolled into coils of thin steel at the Hot Strip Mill. This thin steel is used for a wide range of purposes from items like food cans to fences, roofs, cars and washing machines.

(e) Other slabs are rolled into large flat sheets of steel at the Plate Mill. This steel plate can be used in the making of ships or cut into strips to make steel beams. 10 The Applicant's involvement is at the (b) and (c) stage above: pouring the molten iron into the BOS vessel - mixing the molten iron with recycled steel and other elements to make molten steel - and pouring off the resultant molten steel. 11 An important aspect of the above process, is the use of oxygen which is blown into the BOS vessel as part of the process of converting the molten iron and other ingredients into the molten (liquid) steel.

The oxygen is blown into the BOS vessel, under high pressure, through a water cooled oxygen lance which is introduced into the BOS vessel from above. The lance does not penetrate the molten material but stops its entry into the BOS vessel, just above the surface of the molten material. The high pressure delivered oxygen stirs up the molten mixture as part of the conversion process to molten (liquid) steel. 12 This high pressure delivered oxygen is sustained for some 17 minutes. The molten steel splashes around inside the BOS vessel but with such force, that some of the molten (liquid) steel erupts out of the BOS vessel and flows down the outside of the BOS vessel, like a lava flow - and glowing white hot. The temperature of the molten steel is around 16500C. 13 The BOS vessel is very large in size and resembles the shape of a rotating concrete drum seen on the back of concrete trucks. In this instance, the open end of the BOS vessel faces skywards. 14 There are other aspects to the molten material conversion to molten steel process, but relevantly speaking, the Commission is now only concerned with the operation of the oxygen lance. 15 After some 17 minutes of operation, the oxygen lance is withdrawn, upwards and out of the BOS vessel.

However, on the day of 28 September 2005, an incident took place for which the Applicant was dismissed. This incident was the reinsertion of the oxygen lance into the BOS vessel, after it had already performed its approximate 17 minute role. This reinsertion caused the oxygen lance to start its high pressure delivery of oxygen all over again.

This re-blow had the effect of increasing the temperature of the molten (liquid) metal to an even higher temperature. The re-blow took place for several minutes before this operational error was noticed by a fellow employee (Mr Moffat). 16 The termination letter of 14 October said of this re-blow incident: "Your actions resulted in a serious operational incident where you re-started blow at the end point of a heat resulting in extremely hot and oxidised bath conditions causing damage to the refractory lining of the BOS furnace. There was also potential to cause a steel breakout with a risk of serious injuries to operations personnel." (Ex 1 - ASM 1)

The termination letter also relied upon past performance issues to support the decision to terminate the Applicant. 17 The Applicant denied that he had reinserted the oxy-lance and said he was not negligent in not knowing that the oxy-lance had been reinserted. FINAL WRITTEN SUBMISSIONS

18 The Union's written final submissions made the following points:

(a) The Respondent has sought to rely upon six alleged incidents as evidence of unacceptable performance by the Applicant.

The Applicant contends that in each incident there existed a combination of mitigating circumstances and/or deliberate exaggerations of the incidents and alleged consequences.

Further, the Applicant contends his employment in the BOS Plant was prejudiced from the time of his transfer to the BOS Plant in July 2001. Soon after the transfer, the Applicant claimed that Wayne Staff (Furnace Manager) had told him: " You are not going to get any pay increases for the next three or four years. "

(b) The Respondent's conduct in not affording a company (in-house) Appeal Hearing, before issuing the letter of dismissal, was a denial of natural justice and a matter for the Commission's consideration pursuant to s 88 (b) of the Act.

(c) The Applicant had been in the employ of the Respondent for almost 31 years with a largely unblemished employment record.

(d) The dismissal had caused a dramatic impact on himself and his family. For example, the family home had been repossessed in July 2006.

(e) Apart from submissions on past performance issues, the Union's submissions as to the 28 September 2005 incident, went to: the Applicant's denial that he had reinserted the oxy-lance into the BOS vessel; the Applicant had no need to reinsert the oxy-lance as the BOS vessel was already cooling within the required specification (following the approximate 17 minute oxy-blow); and the Respondent had not produced a witness who could testify to seeing the Applicant re-blow the BOS vessel.

Further, the claim by the Respondent of major damage to the furnace lining and steel ladle lining was rejected, as the BOS vessel was recharged and used to produce steel immediately after the incident.

(f) The Respondent's witness, Wayne Staff (Furnace Manager), had given evidence of his concern that the Applicant was not coping with the rigors of rotating 12-hour shifts. Under cross-examination, Mr Staff said he had not considered transferring the Applicant to permanent day shift work, despite Mr Staff's expressed concerns about compromised safety by the Applicant and his suitability for shift work.

(g) Even if the allegations of unacceptable work performance between December 2002 and October 2005 were found to be proven, the penalty of dismissal imposed on the Applicant was not reasonable in the circumstances and should be overturned.

(h) The Applicant sought reinstatement, or re-employment to a suitable alternative position, along with payment of lost earnings as a result of what the Union submitted was a harsh, unjust and unreasonable dismissal. For the Respondent

19 The Respondent's written final submissions, inter alia, made the following points:

(a) The Applicant does not have an unblemished record of employment.

(b) The Applicant does not have a long period of employment but two lots of employment with the Respondent - that is, he was terminated in 2001 (after 26 years service) for serious misconduct associated with falsification of time and wages records. The second lot of employment was that of re-employment accompanied by a probationary period.

The second lot of employment came about, in part, by taking into account the Applicant's 26 years of service. The Applicant cannot now rely on that 26 years service component, once again, in order to say that the dismissal was unfair ("harsh, unjust or unreasonable").

c) The Applicant's claim of victimisation at the hands of his supervisor, Wayne Staff, was rejected.

d) The Applicant's claim of differential treatment in relation to similar performance incidents, was rejected.

e) The Respondent rejected the Applicant's claim that the safety risks, associated with various incidents, had been exaggerated by the Respondent and rejected the Applicant's claims about safety risks, generally.

f) The Respondent rejected the Applicant's claim of denial of procedural fairness.

g) The Respondent contended that the Applicant was responsible for the re-insertion of the oxy-lance into the furnace vessel.

The evidence of Mr Tarrant, as to the operation of the furnace vessel, would counter the Applicant's claim/defence that he did not re-insert the oxy-lance as it was unnecessary for him to do so.

The evidence of Mr Tarrant reconciled with that of the computer systems report surrounding the incident in question.

h) There was a safety risk associated with the re-insertion of the oxy-lance. Mr Tarrant's evidence was that the likely temperature, due to reinsertion, was 1830°C degrees and this raised the risk of a breakout.

i) Even if the Applicant was not responsible for the re-insertion of the oxy-lance, he was in the alternate, guilty of serious dereliction of duty in not knowing the status of the furnace for over six minutes (the period of re-insertion).

j) The reason for the Applicant's termination was not for the re-insertion of the oxy-lance, but the Applicant's alleged failure to press "stop blow" at the appropriate time. Mr Tarrant's evidence was that a re-insertion of the oxy-lance is not a deviation from normal procedure. But, for the incident in question, the reason for termination was the failure to press the button, "stop blow".

Should the Commission not prefer the evidence of Mr Tarrant over that of the Applicant as to the operational circumstances in question, then the Commission should find that the Applicant's conduct was sufficiently serious to warrant termination. The six minute additional oxy-blow led to a serious risk of a significant safety incident.

(k) The Respondent opposed the reinstatement of the Applicant into his former position or re-employment to another position.

(l) The onus of proof for establishing that the termination was unfair, rests with the Applicant. Applicant in Reply 20 The Union in Reply made the following points, inter alia, in its written submissions:

(a) The Applicant did not reinsert the oxy-lance into the BOS vessel.

(b) Certain assertions by the Applicant remain uncontested because the Respondent had not called Mr O'Loughlin or Mr Chapman to rebut those assertions: a Jones v Dunkel inference should therefore be drawn by the Commission. Further, the conflict in evidence between the Applicant and Mr Staff about the Applicant's claim of victimisation by Mr Staff should be resolved in favour of the Applicant, as the Respondent had not called Mr Chapman to give evidence on the point.

(c) The Applicant's evidence as to the "safe" operating temperature of the BOS vessel is to be preferred, given that the Respondent was not able to quantify what are the safe operational limits of the furnace.

Further, the failure of the Respondent to provide this evidence is critical because the Respondent repeatedly emphasised the dangers of a breakout of molten steel as a significant factor contributing to the decision to dismiss the Applicant.

(d) The Respondent exaggerated the level of risk involved in the incident. This can be inferred by the failure of the Respondent to install an over-temperature alarm system and the furnace was reused shortly after the incident.

(e) With respect to two prior incidents involving the addition of incorrect alloys, both Mr El Sayed and the Applicant were first time offenders. The Respondent dealt with these two employees differently: the former was spoken to, whilst the Applicant was stood down without pay for two days and threatened with dismissal. CONSIDERATION

21 The letter of dismissal advised that the Applicant was being terminated because he had "re-started blow at the end point of a heat ..." (Ex 19 - Annex WS 26) 22 The Respondent's written final submissions put the reason for termination differently. That is, the termination was not for re-starting blow at the end point of a heat, but for not pressing "stop-blow" at the appropriate time.

(An alternate submission for supporting the dismissal, going to the consequences of the Applicant's alleged failure to "stop-blow", was also put and will be considered below.) 23 The focus then is on the Respondent's claim that the dismissal was warranted for the Applicant's failure to "stop blow". The meaning of this term needs explaining. 24 The Commission has already set out above the overall steel making process and the Applicant's involvement in that process (paras 9 and 10).

Relevantly, the Applicant was involved in pouring molten iron into a BOS vessel - mixing the molten iron with recycled steel and other elements to make molten (liquid) steel - and pouring off the resultant molten steel.

But the molten steel is not poured off until the process of obtaining molten steel, at the required specifications, is achieved. The required specifications refers to the required temperature and carbon mixture for each steel making process. 25 An important aspect of that process of obtaining molten steel is the use of oxygen which is blown into the BOS vessel, under high pressure, for the purpose of mixing the molten iron and other ingredients into molten (liquid) steel.

That process may take 17 minutes. 26 At the end of that process, the oxy-lance is withdrawn "skywards" out of the BOS vessel. The process is checked to see if the resultant molten steel is at the required specifications, (temperature/carbon mix), so that it may be poured out of the BOS vessel. This checking process involves a laboratory analysis. 27 Sometimes, after this checking has taken place, the molten steel is poured off. 28 However, at other times the molten steel is not poured off because it is not at the required specifications.

In that event, something else needs to be done to the process to obtain required specifications. One such additional procedure is the reinsertion of the oxy-lance - for a very short period of time. The Applicant contended that this reinsertion was not a necessary function all of the time in order to obtain a required specification. He also stated that he had not reinserted the oxy-lance and, in particular, that the reinsertion of the oxy-lance was not necessary for the incident in question because the oxy-blow of 17 minutes had achieved the required specifications for the steel then being made. This checking process and any additional procedure(s) takes about (5) minutes. 29 For the incident in question which led to the dismissal of the Applicant, the oxy-lance was reinserted.

The Respondent claimed that the reinsertion should have been for only a matter of seconds and then stopped. This is the "stop-blow" point. The oxy-lance is then again withdrawn "skywards" out of the BOS vessel. However, the reinsertion lasted for about six (6) minutes and increased the temperature of already hot molten steel. (There was an issue before the Commission as to this increased temperature range and its impact. The Respondent claimed that the increased temperature was such that it could not be measured.) The reinsertion was stopped ("stop-blow") when another employee noticed the oxy-lance was still blowing. 30 The above explains the process leading up to a need to "stop blow" - and the reason for the dismissal. THE FAILURE TO "STOP-BLOW"

31 There was no dispute that the oxy-lance had been reinserted.

The Applicant denied he had reinserted the oxy-lance, after the initial, say 17minute oxy-blow.

There was no witness to say he had been seen reinserting the oxy-lance.

The Respondent claimed that the Applicant had reinserted the oxy-lance and relied upon data surrounding the particular process in question to support that claim. That is, the Respondent argued that the process in question was one that had not obtained the required specifications at the end of its heat (say 17minutes) but required something else to be carried out to obtain the required specifications. That something else was the reinsertion of the oxy-lance and this the Applicant did. Thus, the particular process in question dictated the reinsertion of the oxy-lance and this the Applicant did - as he had done at other times when the correct specifications had not been achieved after the initial, say 17minutes, oxy-blow. 32 Before considering the issue of allegedly failing to "stop-blow", the Commission will determine who or what caused the oxy-lance to be reinserted at the end of the blow, that is, at the end of the initial, say 17 minute oxy-blow. 33 The Applicant denied he had reinserted the oxy-lance and he said there was no witness to say otherwise.

An investigation into the reinsertion incident, concluded that the reinsertion was "most likely" due to a person pressing the start blow button for reinsertion. This conclusion was reached after the day shift Electrical Technical Supervisor carried out electrical checks on the start blow button in the No 3 control room and detected no fault. (Ex 19 - paras 188 and189)

There was no evidence brought by the Union to contradict the above conclusion. 34 At the time of the reinsertion, there was only one Process Controller in the No 3 control room - that is, the Applicant.

The other person working in that control room with the Applicant, was Mr Terrence Moffat, Process Controller Melter, with the responsibility for general plant operations. It was not put in final submissions that it was he who had reinserted the oxy-lance.

Accordingly, the Commission agrees with the conclusion of the Respondent's investigation that the reinsertion was "most likely" due to the act of a person and that that person was the Applicant. 35 There is an inference that falls from this conclusion given the Applicant's denial that he reinserted the oxy-lance. The inference is that he was not fully concentrating on the job at hand and therefore does not remember pressing the start blow button. What is important about this inference, is that there was an issue raised by the Respondent during the proceedings, that the Applicant had had other work instances where he was not paying full concentration to his work. 36 Having determined the "most likely" cause of the reinsertion, the Commission now turns to the reason for dismissal that is, the failure by the Applicant to "stop-blow". 37 For the record, the reinsertion lasted about six (6) minutes and the fact that reinsertion had taken place was not noticed by the Applicant, but by Mr Moffat.

The Applicant concedes in his witness statement, that it was Mr Moffat who first became aware of the reinsertion. Thus, Mr Moffat (who was seated over from the Applicant's control room panel) observed that one of the panel's instruments (the "r-damper") was in the wrong measurement position. He brought that to the attention of the Applicant who began correcting the wrong setting. Whilst doing so, Mr Moffat exclaimed: " Where's the oxy lance? Oh shit we're still blowing. "

The Applicant then pressed the "stop-blow" button. (Ex 1 - paras 54 to 57) 38 The Respondent contended that the Applicant would have known he was still blowing (due to the reinsertion). He would have known by (a) visually seeing that the oxy-lance was in a lowered position (due to the reinsertion); and (b) from the instrumentation readings at his control room panel. 39 The Commission will firstly deal with the visual cue that the Applicant would have known he was still blowing.

An explanation of the layout of the relevant work site is required. 40 The control rooms and the BOS vessels are located in a workshop factory. The control rooms have a plate glass section, through which a Process Controller (seated at their control panel), can observe the operation pertaining to the BOS vessel - and, in particular, the positioning of the oxy-lance. 41 The Applicant was working in the No 3 control room. This is a large room containing the control panel for the operation of the BOS vessels. The BOS vessel has already been described as resembling, in shape, the rotating concrete drums located on concrete trucks. In this instance, the BOS vessel sits vertically and the open end faces skyward.

The BOS vessel is very large: 9.6 metres deep on the inside; 3.5 metres wide at the opening; and 6.5 metres wide at its widest point. The average total tonnage is about 310 tonnes. 42 The oxy-lance is located above the opening of the BOS vessel and is hidden by a skirt which is located above the BOS vessel.

The oxy-lance is lowered down (from behind the skirt), into the BOS vessel, in order to carry out its delivery of oxygen under high pressure. 43 There is a gap between the bottom of the skirt and the top/open end of the BOS vessel. It is the gap area which provides the visual factor for knowing that the oxy-lance has been lowered into the BOS vessel - and which the Respondent relies upon to assert that the Applicant would have known that the oxy-lance had been reinserted. 44 The BOS vessel, the gap, the skirt and the position of the oxy-lance at any given time can be sighted by any Process Controller, seated at his/her control panel, by looking through the plate glass window. 45 The Applicant had a defence as to why he could not see that the oxy-lance had been reinserted. This defence was that the gap between the bottom of the skirt and the lip/open end of the BOS vessel had narrowed, due to the build up of slag on the lip/open end of the BOS vessel. The slag is the molten (liquid) steel that erupts out of the BOS vessel as a result of the stirring up of the molten steel by the high pressure delivered oxygen. 46 There was support for this defence in the affidavit of Terry Moffat who deposed: "There was minimal clearance from the furnace to the skirt, which made it difficult to see, as the furnace did need to be deskilled." (Ex 21 - para 15) 47 Given that Mr Moffat was present in the control room at the time of the incident in question and gives supporting evidence for the Applicant's defence that he could not see the position of the oxy-lance, then the Commission accepts this defence. Thus, the Applicant could not visually ascertain the position of the oxy-lance. 48 The Respondent alternately argued that the Applicant would have known he was still blowing (due to the reinsertion) from instrumentation readings at his control room panel.

As the Commission understands it, there is more than one instrument for any Process Controller to know that an oxy-lance is still blowing. 49 The affidavit of Mr Van Der Weyden (Technical Co-ordinator BOS Furnace Operations) advises of two visual signals for any Process Controller being able to ascertain the position of the oxy-lance. These instruments are located at the control panel and is directly in front of the Process Controller. These visual signs are the R-Damper and a LED height position instrument. (Ex 22 - paras 70 and 71)

The R - Damper controls pressure and air-flow. When a Process Controller inserts the oxy-lance to start blow, the R - Damper opens up to a 39% setting. When the oxy-lance is taken out of the BOS vessel, the R - Damper should be around a 15% setting - (Ex 22 - paras 65 and 66) 50 Mr Tarrant (Technical Co-ordinator BOS Furnace Operations) gave evidence of "telltale indications" that an oxy-lance was blowing: the RSW (R - Damper) and the LED (which gives the oxy-lance height position). (Tr 13/07/06 - p 31, line 37 to 47: and p 48, line 21 to 55). His evidence also confirmed that the above two instrument readings are located in front of a Process Controller. 51 Mr Tarrant also advised of another instrument for alerting a Process Controller than an oxy-lance was blowing: this is the oxygen counter which begins counting oxygen use, once the oxy-lance reached a position where the oxygen valve opened. (Tr 17/07/06 - p 33, line 9 to 20) However, there was evidence from the Applicant that the oxygen counter read "zero" for the incident in question. (Tr 12/07/06 - p 92, line 34 to 40)

Mr Tarrant's affidavit stated that Terry Moffat (who was working alongside the Applicant at the time) did not see if the oxygen counter was counting at the time. (Mr Moffat, of course noticed the R - Damper and the LED display and alerted the Applicant.) Mr Tarrant advised that the oxygen counter was subsequently tested and could not be faulted. (Ex 18 - para 42) 52 From the foregoing, there is no dispute that there were at least two instruments (located in front of the Applicant), to advise him he was still blowing. Those two instruments are the R - Damper and the LED display (which gives the height position of the oxy-lance - that is, whether it is in or out of the BOS vessel). 53 The Applicant gave two defences as to why he had not noticed these instrument readings, both of which advised that the oxy-lance had been reinserted and he was still blowing oxygen.

His first defence as to why he did not notice, was because he had no need to notice as he had not taken any action to reinsert the oxy-lance. The second defence was that he had been busy doing other work and therefore was distracted from observing the instrumentation.

This latter defence refers to the period of time after the initial blow of say, 17 minutes. It is the period of time (say, 5 minutes) during which the Process Controller is awaiting the analysis from the laboratory on the probe sample pertaining to the initial 17 minute blow process. 54 Witnesses called by the Respondent rejected the above defences. Simply put, their evidence was that any Process Controller has a responsibility to be alert to the status of any given heat (the approximate 22 minute heat process). 55 Thus, Mr Tarrant (Technical Co-ordinator BOS Furnace Operations) deposed that Process Controllers "are in control of the systems and are expected by their training, knowledge, and qualifications to monitor and keep the systems in control. Often this requires only a quick glance or check step to ensure the system is at it should be." (emphasis added) (Ex 18 - para 51) 56 Mr Perry (BOS Process Melter) deposed that: "As a Process Controller it is their responsibility to be alert and know what their Furnace condition and status is at all times." (Ex 20 - para 5) 57 Mr Moffat (Process Controller Melter) deposed: "It is the Process Controller's responsibility to know where the lance is situated, whether blowing or not." (Ex 21 - para 34) 58 The reason for having this responsibility of being alert to the status of any heat in question, goes to the hazardous operation involved. Mr Staff gave evidence that two crane drivers employed by BHP in Newcastle, were fatally injured in 1995/96; and that there are reports from around the world each year of people being fatally injured due to BOS operations. (Tr 13/07/06 - p 54,line 5 to 22) 59 The Commission then is faced with evaluating the Applicant's defence as to why he did not notice the two instruments - as against the Respondent's witnesses of the requirement to be alert as to the status of any given heat - because of the responsibility involved. 60 A relevant question as to the time lapse was put to the Applicant in respect of his defence that he did not notice the two instruments. Thus, the Applicant was questioned and agreed that he had not noticed these two instruments (telling him he was still blowing in the BOS vessel), for a period of 6.5 minutes. (Tr 12/07/06 - p 69, line 12 to 15)

It is also relevant that these two instruments are directly in front of his seated and viewing position. It is also relevant that he did not leave his seated position during this 6.5 minute period. 61 Although the Applicant put a defence that he did not notice the instruments (telling him he was still blowing), because he was busy with other work, the Commission was given evidence disputing this defence/assertion.

Thus, Mr Moffat (who was working alongside of the Applicant at the time), deposed that: " Tony (the Applicant) did not appear to be preparing for the next heat as he was sitting in his chair with his head down. " (Ex 21 - para 33) This quote is part of Mr Moffat's response to the filed statement of the Applicant. For the record, the Applicant disagreed with Mr Moffat's expression in his right of reply. 62 In assessing the evidence concerning the Applicant's defence that he did not notice he was still blowing, the Commission is unable to accept that defence.

Even putting aside the disputed evidence between the Applicant and Mr Moffat (as to the Applicant's actual busyness with preparing the next heat), it is still the case that the Applicant is required to be alert to the status of each heat because of the responsibility involved.

63 As to this responsibility, there has already been a reference to the hazardous nature of working with 310 tonnes of molten steel. It is because of that responsibility that the Commission is unable to accept the Applicant's twofold defence. 64 The period of time (6.5 minutes) involved in which the Applicant was unaware does not assist the Applicant. This is a long time in which to be unaware of what is happening with his heat. This period of time exceeds the usual five (5) minutes during which a Process Controller awaits the outcome of the laboratory analysis of the sample probe taken of a heat in question and during which five (5) minutes as well, a further process(es) may take place for bringing the heat to its required specification. 65 The lack of difficulty for having the necessary level of alertness was demonstrated in this particular incident by Mr Moffat who was working alongside the Applicant. ("Alongside" does not mean shoulder to shoulder but about two metres off to the side and slightly angled away from the Applicant's control desk due to the angled shape of the end of the control desk where Mr Moffat was sitting.)

Despite sitting at an angle to the Applicant's area of operation, Mr Moffat noticed that the Applicant was still blowing, by noticing the position of the R - Damper and the LED lance height instruments. (Ex 21 - para 16) These instruments are directly in front of the Applicant's seated - viewing position. 66 The Applicant countered that Mr Moffat did not observe these instruments (and the adverse information they conveyed) until after several minutes. (Tr 12/07/06 - p 68, line 30 to 38) The inference being, presumably, that Mr Moffat (having an overall responsibility role for the Applicant's work) was not alert to the problem for several minutes.

The Commission rejects this claim. Mr Moffat was seated at the control desk doing his own work - and about two metres away from the Applicant's work position. Mr Moffat was not there to be looking over the Applicant's shoulder constantly. 67 Accordingly, in summary of the evidence, the Commission is unable to accept the Applicant's twofold defence as to why he did not notice he was still blowing. The Applicant had a responsibility to be alert to the status of his heat, even if he was busy, as he claims, in preparing for the next heat. A lapse of not knowing his heat status for at least 6.5 minutes, cannot be accepted as reasonable conduct. Consequence of Failure to Stop-Blow

68 The letter of termination stated that the consequence of failing to "stop-blow" resulted in "extremely hot and oxidised bath conditions causing damage to the refractory lining of the BOS furnace. There was also the potential to cause a steel breakout with risk of serious injuries to operations personnel." (Van Der Weyden - Ex 22 - GVW 19)

The Applicant's evidence went to rejecting the consequence as portrayed by the Respondent.

In final submissions paras 65 to 72 filed on 4 August 2006, the Union rejected Mr Staff's claim of " major damage to the furnace lining and the steel ladle lining ." The Union pointed out that the furnace in question had been recharged and used to produce steel immediately after the incident in question. 69 The Union's claim that the furnace was used immediately after the incident in question, to produce steel is correct, but needs clarification.

Mr Van Der Weyden gave evidence that after the incident in question, a visual inspection was made of the brickwork (which lines the inside of the furnace) and found no significant failures. The next heat took place. After that heat, the furnace was put off line to do some refractory maintenance (gunning the line) in order to build up the lining lost to the increased temperature sustained by the furnace due to the extra 6.5 minutes of oxy-blowing. (Tr 13/07/06 - p 115, line 25 to 53; p 119, line 17 to 28)

The molten steel went beyond its required specifications and had to be recycled which resulted in the stopping of a casting machine. The impact was a cost to the business of in excess of $100,000, according to Mr Tarrant. (Ex 18 - para 34) 70 The termination letter refers to a potential to cause a steel breakout with risk of serious injury. This claim also takes in for consideration the temperature of the heat in question. 71 A breakout refers to the furnace being breached and the molten steel (some 250 tonnes or plus) pouring out. There was no evidence of such an event ever happening. However, the termination letter referred to the "potential" of a steel breakout with risk of serious injuries to operations personnel. 72 There are factors contributing to the potential of a breakout: The Applicant, under cross-examination, referred to the lining of the furnace and the condition of that lining; he also referred to the campaign life of the furnace (that is, the number of heats the furnace can withstand.) (Tr 12/07/06 - p 15, line 3 to p 20, line 15) 73 Mr Staff gave evidence, under cross-examination, that temperature is a factor, as well. He was asked to state, at what temperature, a furnace would fail. He said that temperatures above 1720°C would bring about "a very high risk of having a break out." He could not give a specific temperature at which the furnace would break out. As well, he said the refractory bricks (which line the inside of the furnace and act as an absorber) do not come with a guarantee that they are safe to 1720°C. (Tr 13/07/06 - p 65, line 3 to p 66, line 8) 74 Before considering the temperature reading for the heat in question, the Commission will put that consideration into context by referring to evidence given about heat temperatures. Thus, Mr Staff deposed that at the beginning of the heat process, the hot metal is about 1350°C. The average end point temperature (at completion of the heat) is 1650°C and the temperature typically ranges from 1320° to 1710°C. End point temperatures greater than 1680°C are only required for a small number of special grades of steel. At the completion of the heat, the initial hot metal has been converted into liquid steel. (Ex 19 - paras 16 to 19) 75 For the heat in question, the temperature was aimed to be at 1662°C. (Van Der Weyden - Ex 22 - para 74)

As to the actual heat obtained, there was no specific certainty.

Mr Tarrant deposed to an accurate temperature reading of 1730°C about 50 minutes after the heat in question. (Ex 18 - para 41) That lapse of time after the event infers that the temperature at the end of the extra 6.5 minutes of oxy-blowing, was greater than 1730°C.

Under cross-examination, Mr Tarrant set out his reasoning as to the probable temperature of 1830°C at the end of the extra 6.5 minutes of oxy-blowing. (Tr 13/07/06 - p 18, line 11 to 36)

Given the targetted temperature of 1662°C for the heat in question, then the actual temperature was probably about 160°C plus beyond that targetted temperature. 76 Mr Tarrant was cross-examined about his claim of a high potential for break out. He said: "Again this furnace was towards the end of its campaign life again, so it wasn't in a condition conducive to being able to handle a high oxidised, high temperature heat, and this particular heat, I didn't know that steel could get to this temperature, and when you do get to these temperatures, you certainly take any cover that's on the refractory bricks off and then you effect the, like I say, the metallurgy, the temperature will also affect the condition of the bricks, so you're increasing your potential to have failures in the lining and have a break out through the lining." (emphasis added) (Tr 13/07/06 - p 25, line 37 to 52)

The highlight in the above extract, reflects the exclamatory way in which this witness recorded in the witness box, his disbelief that steel could get to such a high temperature. There was no evidence to say at what temperature, a furnace would break out and spill its hot liquid content. No witness could give that definitive answer. The only evidence giving an indication as to breakout, was that of Mr Staff who said there was a very high risk of breakout above 1720°C. 77 The Union put to a couple of Respondent witnesses as to their knowledge of steel processing at 1750°C but no witness could confirm this for the Union. 78 The Commission is then left with evidence that the 6.5 minute lapse caused the temperature in the furnace to rise to around 1830°C. Given Mr Tarrant's reaction in the witness box to this temperature, and in particular that he did not know that steel could get to this temperature, the evidence of a topend processing temperature of no more than 1710°C, the fact that high temperatures will cause damage to the refractory lining (and did so) and the Applicant's agreement that a factor contributing to a potential for breakout is the condition of the lining of the furnace, then the above leads the Commission to reasonably conclude that there was a real chance of a breakout with serious risk to personnel and damage to plant. 79 Before making an assessment about the Respondent's decision to dismiss the Applicant for this incident, the Commission will review the incidents from the Applicant's employment history and which are relied upon by the Respondent to support the dismissal. EMPLOYMENT HISTORY

80 The letter of dismissal of 14 October 2005, stated that the Applicant was dismissed because of his continued poor performance which culminated in the failure to stop-blow at the end of a heat on 28 September 2005. (Van Der Weyden/ - Ex 22 - GVW 19) 81 The Union's written submission filed on 4 August 2006, listed the following incidents as matters relied upon by the Respondent, as constituting unacceptable work performance:

(a) Failure to reset the speed of Induced Draft (ID) Fans on two occasions - 16 December 2002 and 11 January 2003.

(b) Addition of incorrect fluxes to Furnace - 9 March 2003.

(c) Failure to "Stop-Blow" on Furnace - 9 August 2004.

(d) Addition of incorrect alloy to the furnace - 21 November 2004.

(e) "Blowing" oxygen into an empty furnace - 10 June 2005. 82 The Union contended that even if the above list of incidents were found to be proven, the penalty of dismissal imposed on the Applicant was not reasonable in the circumstances and should be overturned. 83 The Respondent's final written submissions filed on 25 August 2006, listed the above incidents and cited the Respondent's concern with each incident.

(a) 16 December 2002 and 11 January 2003 - This incident threatened the operation of a vital piece of plant equipment.

(b) 9 March 2003 - Increased risk to health and safety as well as additional costs.

(c) 9 August 2004 - Increased risk to health and safety.

(d) 21 November 2004 - Significant additional costs added to steel making process.

(e) 10 June 2005 - Increased risk to health and safety. 84 The Commission will now consider each of those incidents.

These two dates concern a piece of machinery called the ID (Induced Draft) Fan which was left running on high. According to Mr Tarrant, when left running on high, the fan motor can be burnt out and can cause catastrophic damage to the fan shaft. In turn, the BOS vessel (the furnace) would be unable to operate for a period of up to one week, which would result in the dumping of metal.

Mr Tarrant spoke to the Applicant on both occasions. On the first occasion, their talk was informal. When the second incident happened one month later, Mr Tarrant held a formal meeting with the Applicant and his team leader (Van Der Weyden). The Applicant was provided an email being the contents of the second meeting. (BT2 or GVW3) The Applicant said under cross-examination that he had no recollection of this second meeting but said he did receive an email from Mr Van Der Weyden as to "the kind of consequences that can occur." (Tr 12/07/06 - p 41, line 43 to p 42, line 14) 85 The Union's filed submissions is critical of Mr Wayne Staff's summation of the two incidents. He referred to a "potential to cause substantial damage to a critical piece of plant equipment that would result in an extended production outage and cause significant amounts of hot metal to be dumped." (Ex 19 - para 72)

The Union submitted that Mr Staff's view " is an exaggeration intended to impugn the reputation of the Applicant ." (para 28) The Union pointed out in that regard that the plant equipment had a trip out mechanism to protect from damage. 86 The Commission takes the view, however, that another point was being made by Mr Tarrant and that goes to the lack of concentration by the Applicant as to the job at hand. Mr Tarrant's report (BT2) of 17 January 2003 as to the meeting involving him, the Applicant and Van Der Weyden made the point that the problem with the ID Fan was noticed by the Applicant's supervisor (Van Der Weyden) and not the Applicant who had not noticed the problem on his system indicators in the control room. The ID Fan had apparently been running (without DC water) for 27 minutes. The Applicant disputed the length of time only. 87 The failure by the Applicant to notice a system indicator (telling him the ID Fan was running on high) is consistent with the Respondent's contention that the Applicant similarly failed to notice his system indicators telling him he was still blowing oxygen for 6.5 minutes and for which he was dismissed.

This incident involved the Applicant incorrectly adding fluxes (after he had already put in the required fluxes) to the BOS vessel (furnace). Mr Tarrant deposed that this resulted in a heat of steel finished at extreme high temperature and of poor quality. The cost impact was in excess of $150,000. The furnace lining was adversely affected by the high temperature and resulted in the campaign life of the furnace being reduced by about 500 heats. There was also the risk of a liquid steel breakout from the furnace which could harm personnel. (Ex 18 - paras 15 to 17) The Applicant challenged the cost estimate of $150,000 plus because the steel was reblown. (Tr 12/07/06 - p 44, line 47 to 58) 88 The Union's final submissions refers to Mr Wayne Staff's views about this incident and submits that they are an exaggeration of the facts. Mr Staff, like Mr Tarrant, referred to the potential of a molten steel breakout. The Union said that the furnace heat in question was operating at 1725°C and well within its safe operating tolerance.

The Commission concurs with the Respondent's point made in final submissions that the Union brought no evidence as to a furnace's "safe operating tolerance". There was evidence contrary to the Union's position, obtained from Mr Staff under cross-examination by the Union, that there was a very high risk of a breakout above 1720°C. 89 The 9 March 2003 Incident Report (Ex 18 - BT4) records comments by the Applicant. Relevantly, he is recorded as saying: "I felt totally numb as to how I could have done this and felt instantly ill as a result of my lapse in concentration." (emphasis added) However, his affidavit in reply rejected that the incident happened due to a lapse in concentration. (Ex 2 - para 3)

Under cross-examination, he said that he had added in more fluxes but this was due to "inexperience". He said that he had put the fluxes into the furnace but at a time when it was very busy and he was in need of going to the toilet. He went to the toilet. Upon returning to the control room, he was not sure if he had added the fluxes and a digital display was not showing that fluxes had been put in by him. The Applicant said he put in fluxes (when he had already done so), but this conduct was due to "inexperience". (Tr 12/07/06, p 45, line 37 to 52)

The Commission takes the view that the Applicant's characterisation of this incident as "inexperience" in 2006, merely seeks to avoid characterising the incident as lack of concentration - because that is a theme pursued by the Respondent in these proceedings. The Applicant's forgetting that he had already got up and dumped the requisite alloys, was another example of the pattern of lack of concentration to the job at hand. 90 Mr Van Der Weyden deposed that the Applicant was given counselling by him over the incident. This included one week of retraining on day shift. A copy of the Incident Report and corrective actions assigned to the Applicant is attachment GVW 6/Ex 22.

This incident involved the Applicant blowing oxygen into the furnace when he should have stopped blowing beforehand.

It was Mr Moffat who noticed that the Applicant was still blowing. The Applicant had not noticed. 91 The Applicant's affidavit confirms that he was the cause of the oxy-lance still blowing. He said this was due to his being "extremely fatigued."

However, the file note of Van Der Weyden of 9 August 2004 (Ex 22 - GVW 7) records the following: " Tony (the Applicant) was forthright in his explanation of events in that he believed his lapse in concentration was due to a "microsleep "". (emphasis added) 92 Under cross-examination, the Applicant agreed he had had a "microsleep."

He agreed he awoke because of Mr Moffat entering the control room. It was then put to him that, but for Mr Moffat entering the control room, he could not state at what point he would have woken up - or stopped the blower. The Applicant responded that he had only had a "microsleep". He concurred that the "microsleep" had taken place at a critical time in the steel making process. (Tr 12/07/06 - p 52, line 9 to p 53, line 5) 93 The Applicant's evidence was that the "microsleep" only lasted "seconds". Even if that is correct, the Commission takes the view that it is still the case that he was not attentive to the job at hand and at a critical time, that is, when he was blowing oxygen into the furnace. This, of course. is another incident having the same pattern of loss of concentration. It has the same pattern as for the incident for which he was dismissed - he was unaware he was still blowing.

As well, the incident resulted in damage to the furnace lining and repair work was required. (Moffat Ex 21 - para 11)

(d) 21 November 2004 94 This incident involved the Applicant adding the wrong alloys during the steel making process, resulting in two heats being scrapped (steel that is unable to be sold and has to be recycled).

Following an investigation, the Applicant was disciplined - two days suspension without pay and a warning that future poor performance could result in further disciplinary action, including suspension or termination of employment. The Applicant was also offered the availability of the Respondent's Employee Assistance Program. (Van Der Weyden - Ex 22 - GVW9) 95 The Union submitted in its final submissions that it was unreasonable in the circumstances, for the Respondent to rely upon this incident for serious disciplinary action and eventual dismissal.

The circumstances were twofold - firstly, the use of incorrect alloys was due to a confusing control layout design; and secondly, the Applicant had been disciplined differently to another employee who had made the same error as the Applicant. 96 As to the confusing control layout design, there were buttons for dispensing alloys into the steel making process. Two of the buttons were similarly marked and this led to the confusion in hitting the wrong alloy button. Thus, button 9 was marked "HCFeCr" and button 14 was marked "HCFeMn". As proof of confusion, the Applicant said that button 9 was re-marked as "Cr" in order to avoid confusion and was re-marked, he asserted, arising out of this incident. The disciplinary action against him was therefore unfair, the Union submitted. 97 Mr Martin Perry, Process Melter, made out an affidavit (Ex 20) which, in part, dealt with this incident. Under cross-examination, he confirmed the above re-marking of button 9 to make it more distinctive.

However, he was not cross-examined and hence not challenged about his affidavit as to the general circumstances surrounding the Applicant's adding the wrong alloys (paras 11 to 21). Mr Perry was involved in that incident. Mr Perry deposed that it was he who asked the Applicant over a PA system to obtain the required amount of an alloy for dumping. Mr Perry verbally checked, over the PA, with the Applicant that the correct alloy/quantity had been selected by the Applicant. The latter responded: " Who do you think I am, Fudge? " This was a reference to a Process Controller "Fudge' (Mr Sayed) who one week earlier selected the wrong alloy. Mr Perry said: " That's why I'm double checking." 98 The significance of this unchallenged conversation, as deposed by Mr Perry, is that the applicant was put on notice by Mr Perry to be vigilant about his alloy/quantity selection because of a wrong alloy selection error by Mr Sayed a week beforehand. The Applicant, in response, protests to being likened to Mr Sayed and his wrong alloy selection.

Despite the vigilant warning the Applicant made the wrong alloy selection.

The Commission understands that there may be merit to the Applicant's claim that the design layout was confusing for two marked buttons and the proof of that was through the Respondent altering the marking for one of those buttons. But the Applicant's claim as to confusion is hollow given Mr Perry's warning to be vigilant and not make the error made by Mr Sayed. The Commission so finds. 99 The Applicant's second defence was of discriminatory discipline over this incident. The Applicant was suspended for two days and given a written warning. (Van Der Weyden - Ex 22 - GVW 9) Mr Sayed only received some coaching.

Mr Staff, under cross-examination, explained the differing treatment. Mr Sayed's error was his first as a Process Controller. The Applicant however, made two incorrect alloy selections (to Mr Sayed's one) and this incident was the third serious incident on the job involving the Applicant. (Tr 13/07/06, p 71, line 6 to 19) 100 Before dealing with the final employment history incident of 10 June 2005, the Commission notes that the Respondent held a meeting with the Applicant on 21 December 2004. Apart from the Applicant, the meeting was attended by Messrs Staff and Van Der Weyden.

Mr Staff's affidavit advises that he initiated a follow-up discussion to the November 2004 incident. (Ex 19 (paras 126 to 135) Annexed are his notes of that meeting - (WS 14)

The notes clearly show that the meeting's purpose was to discuss the Applicant's job performance - his past errors and that the consequence of the next serious incident will be dismissal.

Mr Van Der Weyden advised he had read the file note, above, of Mr Staff and that it was true and correct as to matters discussed. (Ex 22 - para 43)

An incident occurred on 10 June 2005 for which the Applicant was given a four shift suspension without pay and a letter advising that he was on a final written warning. (Ex 22 - GVW 14)

As the Commission understands the incident, the Applicant had started blowing oxygen into the furnace prior to the furnace being charged - that is, before the furnace was loaded up with scrap and hot metal.

Mr Van Der Weyden deposed that the Applicant's error had the potential to cause major damage to the refractory lining inside the furnace and hence increase the risk of a breakout of molten steel. (Ex 22 - paras 44 to 55) 101 The Applicant's defence to this incident was that he asked Mr Allan Chapman (Furnaceman) if the furnace was charged (and thus ready for the oxygen to be delivered by the oxy-lance). The Applicant deposed that Mr Chapman said: "Yeah, yeah". (Ex 1 - para 40) 102 Mr Van Der Weyden said he carried out an investigation into the incident. His report (GVW 12) records Mr Chapman as saying: "Yeah, chill out I'm on my way."

It's reasonable to read into this latter version, that Mr Chapman has not yet charged but is on his way to doing so. Therefore, the Respondent would say that it was incumbent on the Applicant to await the nod from Mr Chapman before delivering the oxygen into the furnace.

The Applicant, of course, disputes that and said he had the nod to start blowing. He relies upon the Respondent not producing Mr Chapman as a witness, to support his (the Applicant's) version of the conversation. 103 In viewing this incident, the Commission considered the Applicant's scenario that he had been given the wrong information by Mr Chapman.

Even if that was so, there is still the submission by the Respondent's witnesses to be considered: that a Process Controller is to be alert to the status of each of their heats. (This requirement to be status alert has been considered by the Commission in respect of the incident for which the Applicant was dismissed.) 104 One of the witnesses, Mr Perry, said it is the responsibility of the Process Controller to check the status of a furnace prior to blowing. He said this checking can merely involve looking at a computer screen (in the control room) which indicates the stage of the charging process. Mr Perry also said that there are audible sirens which indicate when the furnace is being charged. (Ex 20 - para 28) The Applicant did not dispute the foregoing in his right of reply. 105 The Applicant agreed, under cross-examination, with the claim made in Mr Staff's affidavit (Ex 19 - para 173) that there were a few indicators available to a Process Controller to advise of the charge status of the furnace. (Tr 12/07/06 - p 60, line 45) Those indicators are: checking the furnace for a red glow given off by liquid hot metal; checking for fumes escaping around the lance hole; and checking the computer staging screen.

All up then, a Process Controller has a visual indicator in the control room (computer screen); a visual indicator by looking through the plate glass window to the furnace; and a siren - to advise of the charging status of the furnace. 106 The Applicant said, under cross-examination, that he asked the furnaceman if the furnace was charged because this was a quicker way of obtaining that information than looking at these indicators. To obtain this information, he left his work desk and the control room and went down a hallway to speak to the furnaceman. (Tr 12/07/06 - p 60, line 47 to p 61, line 4)

The problem with this explanation, as the Commission sees it, is that there was no evidence to say that the computer screen (which indicates the furnace stage) and the siren (which indicates when the furnace is being charged) were faulty. And, therefore, why is it quicker to obtain the furnace charging information by leaving the control room - rather than just looking at the computer screen at your work station; or listening to the furnace charge siren?

From another perspective, why was the Applicant not alert to the visual and auditory indicators as to the charge status of the furnace? 107 The Commission takes the view that even if the Applicant's version of his conversation with Mr Chapman is correct, he should have been alert that something was wrong with that information, given the various indicators available to him from his seated position in the control room. Summary of Employment History

108 Having considered the five incidents above, the Commission concludes that the five incidents demonstrate a pattern of lack of concentration by the Applicant to the job at hand. That finding is consistent with the consideration of the incident for which the Applicant was dismissed. On that occasion, the Applicant was unaware he was still blowing oxygen for 6.5 minutes. 109 The Respondent raised for each incident, and the Union disputed, the serious consequences arising from the Applicant's conduct, that is, damage to plant and risk of a furnace breakout with possible injury to personnel.

It was not necessary for the Commission to determine that issue for each incident. The Commission, however, has considered the issue of a possible breakout elsewhere in this Decision.

110 The Union said, in its final submissions, that the Respondent should have considered transferring the Applicant to another job given the Respondent's claim that the Applicant was compromising the safety of plant and personnel.

However, there is evidence that the Respondent considered and raised the issue with the Applicant.

A meeting was held with the Applicant on 26 November 2004. An employee, Chris Page, (Acting Furnace Manager at the time) told the Applicant that he was thinking about finding him another job, taking him off the job entirely or continuing him as a Process Controller and the Applicant fixes up his behaviour. The Applicant replied in the affirmative and said he wanted to be the best Process Controller. (Ex 19 - WS 11)

It seems then that the Respondent canvassed the option of having the Applicant reconsider his suitability for the job but the Applicant, himself, wanted to stay on. At the meeting on 26 November 2004, the Applicant was told that if his lapses without intent continued, then disciplinary action (including possible dismissal) could occur. The Applicant vowed to improve his performance. CONCLUSION

111 The Commission has before it an application for reinstatement by the Applicant (Mr Malfitano) into his former employ. 112 The Commission considered the evidence surrounding the incident that led to the dismissal (28 September 2005) as well as the Applicant's employment history. 113 Having considered the employment history and the incident that led to the Applicant's dismissal, the Commission declines to intervene in the decision of the Respondent to dismiss the Applicant. 114 The Commission finds that the dismissal of the Applicant was not harsh, unjust or unreasonable.

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