Australian Workers' Union, New South Wales (on behalf of Dirk Von Borstel) v BlueScope Steel

LEGISLATION CITED: Industrial Relations Act 1996

Corbeski v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 CASES CITED: Outboard World Pty Ltd v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70

APPLICANT Mr Dave Hancock Australian Workers' Union, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr Michael Mead Australian Industry Group

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: COMMISSIONER MACDONALD 3 April 2007

Australian Workers' Union, New South Wales (o/b Dirk Von Borstel) v BlueScope Steel (AIS) Pty Limited

Application by Australian Workers' Union, New South Wales on behalf of its member Dirk Von Borstel re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 The Commission has before it an application by Dirk Von Borstel ("the Applicant") for unfair dismissal against BlueScope Steel (AIS) Pty Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act").

The Applicant was represented by the Australian Workers' Union New South Wales ("the Union"). 2 The matter was set down for Conciliation and Directions on 28 August 2006 and a Report Back on 8 September 2006. The matter remained unresolved and was set down for a Hearing on 30 November. 3 At the Hearing, the Union was represented by Mr Dave Hancock, union official, who called the following witness: · Dirk Von Borstel - the Applicant

The Respondent was represented by Mr Michael Mead, Senior Advisor, Australian Industry Group, who called the following witnesses: · James Owen - Annual Leave Relief Shift Team Leader · Maxwell Bland - Manager of the Hot Coil Processing and Despatch Department

All proceedings took place before the Commission sitting in Wollongong. BACKGROUND 4 The Applicant has been employed by the Respondent for 31 years. At the time of his dismissal, he worked in the Hot Coil Processing and Despatch Department ("the HCPD Department"), which processes and despatches all coil received from the Hot Strip Mill - on a continuous twenty four hour day, seven days a week operation. 5 On 21 July 2006, the Applicant was working the dayshift. During his crib break, he noted that the crane driver (Mr Ilija Corbeski) was picking up a coil(s) from alongside the weighbridge station.

The Applicant went to the weighbridge station and called up the crane driver over the public address system ("the PA") to advise him not to pick up coil from alongside the weighbridge station (for safety reasons). 6 Present in the weighbridge station at the time was the weighbridge operator, Mr Carlo Conte. 7 An exchange took place between the Applicant and the crane driver over the PA system and which continued by way of physical gesturing between the two of them outside the weighbridge station.

Carlo Conte had also stepped outside the weighbridge station and witnessed the events that then took place. He was not called as a witness but his interview statement was put on the record in the proceedings before myself. 8 One of the alleged events that took place, was the allegation by the Applicant that the crane driver (having motioned Carlo Conte to step aside from the Applicant) then moved the tongs of the overhead crane towards the Applicant. 9 An investigation was carried out into the incident. Two of the investigating officers were called as witnesses by the Respondent: James Owen (Annual Leave Relief Shift Team Leader) and Maxwell Bland (Manager). The dismissal letter of 25 July 2006, was authored by the latter person. 10 During the investigation process, the Applicant was reminded of his employment history and in particular a letter of 25 January 2005 which was a "last and final warning" about the Applicant's behaviour and performance. The investigation raised the issue that the Applicant had "lost it" during the incident with the crane driver. 11 The Applicant was dismissed by letter of 25 July 2006 due to the Applicant's "continued unacceptable behaviour towards others". 12 The crane driver, Ilija Corbeski, was also dismissed. He pursued a successful reinstatement application before this Commission: Corbeski v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 per Connor C. ("the Corbeski Decision") FINAL SUBMISSIONS

13 Mr Hancock put the following in final submissions:

(a) The Applicant had contacted the crane driver from the weighbridge by way of the public address system. He did so after observing the crane driver picking up a coil(s) adjacent to the weighbridge. The Applicant told the crane driver not to pick up the coil(s).

The crane driver denied doing so and the Applicant admitted he then called the crane driver a "fucking liar."

(b) The Applicant denies all other allegations made against him arising out of this incident.

(c) Certain persons involved in and around this incident were not called as witnesses and this is because their evidence would not have supported the allegations made against the Applicant.

(d) The "last and final warning" letter was some 19 months old and no one had made a complaint against him in that time.

(e) The Applicant's language should be seen in the context of the industrial working environment in which he worked: men and not angels.

(f) The investigation process was flawed. The investigation was begun by the Applicant's complaint over the unsafe conduct of the crane driver picking up a coil(s) adjacent to the weighbridge but resulted in the Applicant being dismissed.

(g) The Applicant sought reinstatement without loss of continuity of employment. For the Respondent

(a) Given that the Applicant denies the allegations made against him, the onus is on the Respondent to prove that the conduct alleged took place - on the balance of probabilities.

(b) The Applicant was not terminated for misconduct but for continued unacceptable behaviour about which he had previously been warned.

Because the termination was for continued unacceptable behaviour (and not for misconduct), then the Respondent did not carry the burden enunciated by Hungerfor d J in Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 (" the Pastrycooks Case "). Accordingly, it is the Applicant who has an onus of proof in this case.

(c) Given that the Respondent does not carry the burden to prove the conduct alleged against the Applicant (because the Applicant was sacked for continued unacceptable behaviour and not misconduct), then the Respondent was not required to lead evidence from Mr Corbeski (the crane driver) or Mr Conte (the weighbridge operator who was present for the incident in question). The Union carried the onus to bring forward these two witnesses.

(d) The unacceptable behaviour for which the Applicant was dismissed, is that which occurred inside and outside the weighbridge station.

The Applicant admitted to the conduct inside the weighbridge station and that, in itself, justified the dismissal as it breached the terms of the "last and final warning".

As to the conduct outside the weighbridge (and which was denied by the Applicant), the evidence of Conte and Corbeski as to that outside conduct, was to be preferred.

(e) The reinstatement application was opposed. Applicant in Reply

Mr Hancock, for the Applicant, put the following in reply:

(a) The Applicant had altered his ways since receiving his "last and final warning". There had been no complaints about this behaviour since that final warning.

(b) The Applicant observed a safety breach when the crane driver picked up the coil(s) adjacent to the weighbridge station. The fact that Mr Conte (who was inside the weighbridge station), did not see this safety breach, and therefore did not complain, was irrelevant. Mr Conte did not see the breach because of a lack of windows (or they were blocked off) in the station. CONSIDERATION

15 An incident took place on Friday, 21 July 2006, between the Applicant and Mr Corbeski (the overhead crane driver) in the HCPD Department. Arising out of the incident both the Applicant and Mr Corbeski were dismissed.

As to the type of dismissal, the Applicant's termination letter of 25 July 2006, advises of "terminated, with notice" (Ex 6 - MB9). According to Connor C, the crane driver was informed by letter of 25 July 2006, that he had been "summarily dismissed for serious misconduct." ("the Corbeski Decision" - para 16)

Mr Corbeski did not give evidence in the proceedings before myself. Similarly, the Applicant did not give evidence in Mr Corbeski's unfair dismissal application. 16 Present at the incident, but not aware of all matters surrounding the incident, was the weighbridge operator, Carlo Conte

Mr Conte did not give evidence in the proceedings. 17 Following the incident, the Applicant telephoned Jim Owen, Annual Leave Relief Shift Team Leader, to advise him of the incident.

Mr Owen gave evidence in the proceedings. 18 Mr Owen met with the Applicant who gave his version of the incident. Mr Owen took notes of that conversation. (Ex 5 - JO1) 19 Mr Owen and the Applicant attended the ambulance station to check the Applicant's blood pressure and pulse. 20 Mr Owen reported the incident to Maxwell Bland, the HCPD Department Manager, who directed Mr Owen to investigate the incident further - to speak to the other employees involved in the incident. 21 Mr Owen took notes of his interview with Carlo Conte (Ex 5 - JO2) and Mr Corbeski (Ex 5 - JO3). Mr Steve Smith was present for the latter interview but did not give evidence in the proceedings. 22 Mr Owen reported the interviews to Mr Bland who decided to carry out his own investigation. 23 Maxwell Bland took notes of his interview with the Applicant. (Ex 6 - MB5). Mr Owen was present at this interview. Mr Graeme Nobes, union delegate of the Australian Workers' Union was also present. Mr Nobes did not give evidence in the proceedings. 24 Maxwell Bland took notes of his interview with Mr Corbeski. (Ex 6 - MB7) Mr Owen and Mr Nobes were present at this interview. 25 Maxwell Bland took notes of his interview with Carlo Conte. (Ex 6 - MB 8) Mr Owen and Mr Nobes were present at this interview. 26 Maxwell Bland, accompanied by others, carried out an inspection of the work area in question. 27 Maxwell Bland held another interview with Mr Corbeski and thence the Applicant. 28 All of the foregoing, the incident and investigations took place on Friday, 21 July 2006. 29 On Tuesday, 25 July, Mr Bland (accompanied by Ms Karen Styles, Human Resource Advisor) met with the Applicant and his union representative, Mr Dave Hancock.

The incident and the Applicant's employment record were raised. The Applicant was given his dismissal letter at this meeting. (Ex 6 - MB9) Mr Corbeski was also dismissed on this day.

Both dismissed employees appealed their dismissals pursuant to an internal appeal process, but unsuccessfully. The Incident and The Evidence

30 The HCPD Department processes and despatches all coil received from the Hot Strip Mill. The coil is at a hot temperature when it arrives in the HCPD Department. The coil comes via a conveyor line.

31 Set out below is a diagram of the HCPD Department's operation - a rail line, conveyor line, safety fence, weighbridge station and the approximate position of the Applicant and Mr Conte on the shop floor. _______________________________________________________________________RAIL LINE _______________________________________________________________________ _______________________________________________________________________CONVEYOR LINE _______________________________________________________________________

‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ FENCE WEIGHBRIDGE CABIN

• •                                       (Applicant/Conte)
    

Overhead is the crane (which was operated by Mr Corbeski). The overhead crane has large metal tongs with which to pick up the coils.

The overhead crane travels the length of the factory (say, east-west direction) and can cross travel the width of the factory (north-south). This east-west and north-south direction travel, allows the overhead crane to carry out its role of picking up coils for transportation. For the incident in question, the crane driver was picking up coils, off the conveyor line, and transporting the coils for stacking on pallets in a storage area. That storage area is located south of the safety fence/weighbridge station. 32 On Friday, 21 July 2006, the Applicant had left the weighbridge station for a crib break. Mr Carlo Conte filled in as relief for that crib break.

Whilst having his crib break, the Applicant deposed he observed the overhead crane driver Mr Corbeski, lifting a coil from the wrong position. (Ex 1 - para 2) By this, he meant that the crane driver was picking up a coil from the conveyor line but from a position adjacent to the weighbridge station and this raised a safety issue. (That is, if the coil being picked up, struck the weighbridge station, then the weighbridge operator could be endangered.) 33 The Applicant went back to the weighbridge station and as he did so, he observed the crane driver picking up another coil from the conveyor line but from a position from where he should not have, deposed the Applicant. (Ex 1 - para 2) 34 The Applicant went inside the weighbridge station (Mr Conte was still there) and told the crane driver, the PA system, not to lift coil from where he did. The Applicant deposed that the crane driver denied doing so. To that, the Applicant told the crane driver he was a "fucking liar". (Ex 1 - para 4) 35 The crane driver, Mr Corbeski, did not give evidence in the proceedings. However, the notes of interviews with him (by Messrs Owen and Bland) were put in as attachments to the witness statements of Owen and Bland (Exhibit 5 and 6 respectively). As such, the notes of interviews became evidence in the proceedings, given that the Union did not object to these notes of interviews being tendered as evidence. However, what weight should be given to such notes of interviews became an issue given that the Applicant challenged much of what was said by Mr Corbeski in those notes of interviews.

An example of this weighting issue follows. The notes of interviews of Corbeski are dissimilar about a particular allegation made by him. He claimed in his interview with Mr Bland, that the Applicant (whilst on the PA system) told him, the crane driver, " to come down on the floor and he (the Applicant) would kill him (the crane driver)." (Ex 6 - MB7) However, the note of interview of the crane driver by Jim Owen, makes no reference to this alleged threat by the Applicant. (Ex 5 - JO3)

The Commission notes that the Bland interview of Corbeski comes later in time than that of Owen's interview of Corbeski.

Mr Corbeski did not give evidence. The Applicant was not cross-examined on this allegation.

The Commission gives this allegation of Mr Corbeski no weight. 36 The interview note by Mr Owen of the crane driver as to the PA system conversation, shows that the crane driver denied picking up the coils from where the Applicant claimed. The interview note confirmed that the Applicant swore at him. (Ex 5 - JO3) 37 The interview note by Mr Owen of Carlo Conte (who was present in the weighbridge station), shows that Mr Conte stated that the Applicant spoke loudly over the PA system. Mr Conte also described the PA system exchange between the Applicant and the crane driver as a "confrontation". (Ex 5 - JO2)

The Applicant deposed that he admitted to Mr Owen of "losing it" (lost his temper) when he told the crane driver that the crane driver was a "fucking liar". He denied he had described the weighbridge PA system incident to Mr Owen as a "confrontation". (Ex 4) 38 The foregoing represents the evidence as to what transpired from the crib break to the PA system "confrontation" in the weighbridge cabin.

The Commission notes for the time being that the Respondent's advocate, in final submissions said that the Applicant admitted to the conduct inside the weighbridge station and that, in itself, justified the dismissal of the Applicant as the conduct breached the terms of the "last and final warning" letter of 25 January 2005. However, the Commission notes that the reason for dismissal, given by Mr Bland (as recorded in his witness statement) to the Applicant, did not put the dismissal in such a limited instance way (inside the weighbridge). The Applicant was dismissed "for continued misconduct and unsatisfactory behaviour towards other employees." (Ex 6 - para 50)

The Commission will return to the Respondent's submission on this point, later in this Decision. 39 Carlo Conte is reported by Mr Owen (per note of interview: Ex 5 - JO2) as stating that the "confrontation" moved outside the weighbridge station to the factory floor. The Applicant, in his Right of Reply, denied that the argument moved outside. (Ex 4) 40 It is important to note that the denial by the Applicant is a denial as to what is being stated by Mr Owen in his witness statement. This, in turn, is what Mr Owen is stating was reported to him by Carlo Conte when the latter was interviewed by Mr Owen. And Mr Conte did not give oral evidence in the proceedings - but the Applicant did. 41 What happened next, after the Applicant and Carlo Conte moved outside onto the factory floor?

A reading of the note of interview of Carlo Conte has the Applicant doing something and then the crane driver responding. (Ex 5 - JO2) The Applicant deposed, to the contrary, of the crane driver doing something and then the Applicant responding. (Ex 1 - para 4) 42 The Applicant deposed that what happened next, was that he looked up at the crane driver who "gestured with his hand as if to say he was going to slit my throat. This was done more than three times. Carlo Conte, an Operator 5 who was doing a relief job for me at the time, witnessed this." (Ex 1 - para 5)

According to the Applicant's witness statement, he has done nothing wrong in this outside "confrontation". The wrong came from the crane driver who gestured to slit the throat of the Applicant. 43 The other employee witness to the scene, but not called as a witness, is Carlo Conte. The note of interview by Jim Owen of Carlo Conte about what happened outside is: " Initially Carlo stated that Dirk (the Applicant) was threatening to kill Ilija (the crane driver), but then thought that is may have been swearing at him and to fix him up. He wasn't surely exactly what he said, but was very aggressive. Carlo confirmed that Ilija was responding to the threats with provocative gestures. Carlo demonstrated the gestures ." (Ex 5 - JO2) 44 The above extract of Carlo Conte has the Applicant as an active participant in the "confrontation" - unlike the version of the Applicant. However, the extent of that activity is not clear. Thus, the opening words of the extract claims that the Applicant was threatening to kill the crane driver. But the extract opens up with a qualification: "Initially Carlo said ..." (emphasis added) and continues with words supporting that qualification: "... but then thought ..." 45 It seems to the Commission that what is being reported is that Carlo Conte was confused as to what was taking place, in terms of the Applicant's conduct. Carlo Conte initially thought that the Applicant was threatening to kill but then thought the Applicant was "swearing at him (the crane driver) and to fix him up." Because of the qualification about threatening to kill, it suggests that the Applicant was not threatening to kill the crane driver. That then means that the words "and to fix him up", which appear after the qualification, cannot have a "kill" context about them. 46 In order to confirm the Commission's observation as to the confusing status of what was reported, as having been said by Carlo Conte, the Commission highlights that the note of interview of Carlo Conte then has him saying: "He wasn't sure exactly what he (the Applicant) said, ..." 47 The only thing that can be said that was not confusing about what Carlo Conte was reported to have said, is this observation about the Applicant: "... but (he) was very aggressive." However, the Commission rhetorically asks: What does that mean? The Commission does so, because Mr Conte gave no explanation of this assertion.

The Applicant denied he was shouting aggressively at Mr Corbeski. (Ex 4)

The Commission notes, for the moment, that the Applicant's evidence was that he had "lost it" inside the weighbridge cabin, but was calm in his demeanour for what occurred outside the weighbridge cabin. He was challenged under cross-examination, about this latter demeanour of his. The Commission will consider this issue later in this Decision. 48 The note of interview by Jim Owen of the crane driver, records that the crane driver said the Applicant "then started shouting at him (the crane driver) ..." Further, the Applicant "was threatening to kill him (the crane driver)". (Ex 5 - JO3) 49 As already noted, the crane driver did not give evidence in the proceedings and so could not be questioned on what was said by him to Jim Owen.

The witness statement of Jim Owen sets out the interview between him and the crane driver and there is no elaboration as to the assertions made by the crane driver: " started shouting at him (the crane driver)" and " threatening to kill him (the crane driver)". 50 Maxwell Bland interviewed Corbeski on the day of the incident and subsequent to the interview process carried out by Jim Owen. Mr Bland's notes of that interview contain one sentence only on the word and/or conduct exchange between Corbeski and the Applicant. That sentence is as follows: "When asked how he could hear what Dirk (the Applicant) was saying, because he (Mr Corbeski) was in the crane, he said he didn't hear Dirk, but saw him saying something and saw Dirk use the cut throat gesture." (Ex 6 - MB7)

That sentence confirms that the crane driver could not hear what the Applicant was saying but that he had said something. This lines up with Mr Conte's evidence that he did not hear what the Applicant said: he only knew that the Applicant was "very aggressive." 51 The crane driver also said that the Applicant used a cut throat gesture toward the crane driver.

The Applicant denied he had said anything or done anything whilst he was standing outside the weighbridge cabin. (Tr p 20, line 5 - 7)

Mr Conte who was standing alongside the Applicant at the time, does not give evidence that the Applicant made a throat cutting gesture towards the crane driver. That means that the crane driver's allegation about the alleged cut throat gesture by the Applicant, is denied by the Applicant and was not seen by Mr Conte, who presumably would have seen such a gesture if it occurred, given that he was standing alongside the Applicant. 52 The "confrontation" between the Applicant (on the shop floor) and the crane driver (seated in his crane cabin above the shop floor) then took a turn that could be described as an escalation, if not a dangerous escalation, of their "confrontation." 53 According to the Applicant, the crane driver motioned for Carlo Conte only, to move away. The crane driver then moved the crane's tongs towards the Applicant. The evidence of Mr Bland was that the tongs weighed 4.4 tonnes. (Ex 6 - MB6)

The Applicant said the tongs were moved two metres towards him - after Carlo Conte was motioned by the crane driver to move away from the Applicant. (Ex 1 - para 6) 54 The note of interview by Jim Owen of the crane driver, records that the crane driver was asked if he had motioned Carlo Conte to move aside but the crane driver did not answer this question. Instead, the crane driver answers the second limb of the question and confirms that he moved the tongs towards the Applicant.

The crane driver " stated that he had moved the crane tongs towards Dirk (the Applicant) to scare him ." He had done so " to scare him " (the Applicant) as he had threatened to kill me ." 55 The note of interview by Jim Owen, of Carlo Conte, records that Carlo Conte confirmed that the crane driver had "gestured" for Mr Conte "to move away" from the Applicant. The crane driver then "moved the crane tongs towards where Dirk (the Applicant) was standing."

The crane driver " stopped the cross-travel about 2 - 3 metres away from Dirk (the Applicant) and then moved the tongs away from Dirk ." (Ex 5 - JO2) 56 After Mr Bland had concluded his own investigation of the incident, (including the site inspection) he met again with the Applicant. Mr Bland put to the Applicant that the Applicant had breached an agreement of January 2005 not to have any behavioural incidences. Accordingly, the Applicant was stood down, on pay.

The Applicant returned to the worksite on Tuesday, 25 July for a further meeting and arising out of that meeting, was dismissed. Onus 57 There was conflicting submission as to which party carried the onus of proof in this matter. The Applicant was dismissed by letter of 25 July 2006 and this stated that the Applicant's services had been "terminated, with notice, as of 25 July 2006, due to your continued unacceptable behaviour towards others." (Ex 6 - MB9) (emphasis added)

The fact that any employee is dismissed with notice is not necessarily determinative of the issue as to whether that dismissal is one that is to be characterised as a dismissal attracting "notice" or is a dismissal that is a really a summary dismissal. To put that another way, a dismissal which is really a summary dismissal, cannot have that fact camouflaged by any employer saying that the dismissal was not a summary dismissal because "notice" was provided to the dismissed employee. 58 Despite the termination of the Applicant, with notice, what is the proper characterisation (dismissal or summary dismissal) that should be given to the circumstances of this case?

The dismissal letter states that the Applicant was dismissed for " continued unacceptable behaviour towards others." (Ex 6 - MB9)

59 The behaviour being referred to and for which he was dismissed is the "confrontation" between the Applicant and the crane driver. There were two phases to that "confrontation": inside and outside the weighbridge station and the evidence about that has already been set out by the Commission. The only evidence that is not in dispute about that continued behaviour, is that which occurred inside the weighbridge station where the Applicant agreed he called the crane driver a "fucking liar". The evidence as to what occurred outside the weighbridge station is disputed and is not clear as to the conduct, if any, engaged in by the Applicant. 60 It seems to the Commission then, that the only certain evidence ("a fucking liar") is not conduct which could be described as misconduct. In saying that, the Commission relies upon a passage from the Pastrycooks Case (p 70 at 74) which summarised cases on misconduct and held that for misconduct to be made out then if would need to be shown that the Applicant's conduct was such as to evince an intention to be no longer bound by his contract of employment. The Commission finds that the Applicant did not evince such an intention 61 Accordingly, the Respondent does not carry the burden to prove that the facts existed to support a summary dismissal given that the Commission finds that this is not a case that can be characterised as a summary dismissal. 62 The Respondent than made a submission that because this was not a summary dismissal case, then the onus was on the Union to bring forward certain named witnesses (Corbeski and Conte) in support of its case before the Commission.

In this case, there was no need for the Union to call these two witnesses: neither would add anything to the theory of the case being run by the Union. 63 However, there was merit for the Respondent in bringing Mr Corbeski, the crane driver. To have done so, would have put the Applicant's evidence in the witness box on what happened outside the weighbridge station in direct conflict with that put by Corbeski in the witness box. As it was, the Commission was called upon to decide between that conflicting evidence but in circumstances where the Applicant gave direct evidence but the evidence of Corbeski was hearsay (notes of interview). 64 Relevantly, the Commission points out that the unfair dismissal applications of the Applicant and Corbeski were not sought to be joined by the Respondent and then dealt with by one member of the Commission. That course of action would have resulted in both the Applicant and Corbeski appearing as witnesses in the one proceeding and their evidence being in direct (first hand) conflict and requiring resolution of that conflict by that one member of the Commission. Under that joinder scenario, a different outcome as to the two separate reinstatement applications (the Applicant and Mr Corbeski) may have resulted. CONCLUSION

65 The Applicant was dismissed for "continued unacceptable behaviour towards others". This reason came out of an investigation into an incident on the shop floor, between the Applicant and a certain crane driver, Mr Corbeski. 66 The extent of the evidence before the Commission, about this incident, was less than that available to the investigating officers. Specifically, the crane driver (who was also dismissed over the incident but reinstated by order of Connor C), did not give evidence in these proceedings. Likewise, Mr Conte (who was present for some of the incident), did not give evidence. It was intimated to the Commission that the reason for Mr Conte's absence was a reluctance to give evidence against another employee (albeit dismissed). The Commission understands that concern but the Commission can only decide issues on the evidence before it. 67 Apart from commenting on the extent of the evidence above, the Commission comments on the type of evidence before it. The Commission had oral evidence from certain witnesses and had documentary evidence. Part of this documentary evidence were "notes of interviews" from the investigation process. These notes were the result of interviews by the investigating officers. That is, these "notes of interviews" represented what the investigating officers asserted was said to them by Mr Corbeski and Mr Conte - neither of whom was called as a witness.

This raised an issue as to what weight could be given to such documentary evidence - especially where it conflicted with the oral evidence of the Applicant. 68 Finally, on the issue of evidence assessment (and bearing in mind the above documentary/oral evidence conflict). the Commission makes no adverse credit finding about any of the witnesses. 69 Having considered all of the evidence, the Commission finds that the dismissal of the Applicant was unfair. 70 The Respondent's investigation of the Applicant's conduct went to his conduct firstly, inside the weighbridge station and then secondly, his conduct outside the weighbridge station. The Respondent's letter of dismissal did not limit the conduct, that caused the Applicant's dismissal, to just the inside or outside the weighbridge station conduct. Mr Bland's witness statement speaks of the "Termination Meeting" (Ex 6 - paras 41 to 50) and the conduct being discussed therein by Mr Bland, with the Applicant. goes to the inside and outside the weighbridge station conduct. 71 The Respondent's case about the Applicant's conduct outside the weighbridge station, and which the Respondent would say could be described as "continued unacceptable behaviour towards others", was not made out.

Thus, Mr Corbeski (the crane driver) made serious allegations (of physical threats) against the Applicant - but Mr Corbeski did not give evidence in the proceedings in order to back up those allegations. The Applicant gave evidence and denied the allegations.

The employee who witnessed the outside the weighbridge incident, Mr Conte, did not give evidence in the proceedings. The note of interview of him, by Jim Owen, was considered by the Commission and found to be confusing as to what Mr Conte observed about the Applicant.

The Commission found that the only non-confusing statement in Mr Conte's note of interview was that he asserted that the Applicant was "very aggressive". But the Commission then asked rhetorically: What does that mean? There was no explanation by Mr Conte as to this assertion and the Applicant denied shouting aggressively at the crane driver. 72 Given the lack of evidence to support the Respondent's case about the Applicant's conduct outside the weighbridge station (apart from the Applicant's denial), the Commission finds that the Respondent has not made out its case against the Applicant in respect of the Applicant's conduct outside the weighbridge station. 73 The above finding by the Commission may not come as a surprise to the Respondent's advocate, Mr Mead.

During final submissions, he put an alternate argument that if the inside/outside the weighbridge station conduct did not support the Respondent's decision to dismiss the Applicant, then the Applicant's conduct inside the weighbridge station, itself, supported the Respondent's decision. 74 That conduct inside the weighbridge station was one admitted to by the Applicant. He said he called the crane driver, over the PA system, a "fucking liar" and had "lost it". 75 Was the calling of his fellow employee. a "fucking liar", in the context of having "lost it", sufficient to warrant dismissal?

The Union submitted in the negative and said that employees should be judged as men and not angels. The case law not referred to by the Union but from which this saying comes is: Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 74. That case is a decision of the Privy Council and the relevant extract is as follows: " on the other, their Lordships (the Privy Council) would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, CJ, was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded." 76 In this case, the Applicant was not being reprimanded by a superior. He was having an exchange with a fellow blue collar worker in the factory. 77 The exchange took place over the PA system - with the Applicant on the ground and the crane driver up in the air in his crane driver's cabin. Thus the Applicant's emotional outburst was not face to face but at a distance. Further, these two employees could not see each other at the time as the Applicant was inside the weighbridge station when he used the PA system. 78 Given the above geographical circumstances in which the Applicant's outburst took place; given that it was between two blue collar workers in the factory environment (men not angels) and given that the outburst was not directed at a supervisor or managerial person (where it might be said the Applicant showed an intent not to be bound by his contract of employment), the Commission is not persuaded to observe the Applicant's conduct as being that which warrants dismissal. 79 The Respondent relied upon the Applicant being given a final warning in January 2005 about his behaviour and submitting that the conduct between him and the crane driver was a continuation of the Applicant's unacceptable conduct. 80 The last and final warning letter of 25 January 2005, states that the Applicant had threatened a crane driver. (Ex 6 - MB 4). The disciplinary interview of the Applicant identifies that the threatened crane driver is the same Mr Corbeski as for the incident that led to his dismissal. The disciplinary interview states that the Applicant agreed he had threatened to punch Mr Corbeski. (Ex 7 - MB 3). 81 The Commission can understand an employee being reprimanded for threatening physical violence against another employee.

But in the case before the Commission, the Respondent could not produce evidence conclusive of a threat of violence by the Applicant against Mr Corbeski. The Commission reiterates that neither Mr Corbeski nor Mr Conte gave evidence in the proceedings.

The only conclusive evidence before the Commission is that which the Applicant always stated from the start of the investigation - he had "lost it" and called Mr Corbeski, a "fucking liar". 82 The Commission has already discussed above the surrounding circumstances in which that outburst should be considered. Accordingly, the Commission finds that the Applicant was unfairly dismissed given the Respondent's reasons(s) for dismissal. 83 Separate to the above analysis of the case against the Applicant and the finding about the same, the Commission also finds that the dismissal of the Applicant was unfair, given the motivation for his outburst. 84 The Applicant made it clear before the start of the investigation, that his conduct was motivated by safety. 85 Before the Applicant's outburst in the weighbridge station, he had been taking a crib break - away from the weighbridge - but he was in sight of the weighbridge. He observed the crane driver pick up coil(s) from the conveyor belt for transportation to an area generally south of the weighbridge station (see diagram above).

The Applicant was concerned that the crane driver was picking up coil(s) adjacent to the weighbridge station - by use of the crane tongs which has already been stated as weighing some 4.4 tonnes. If the loaded tongs swayed and struck the weighbridge station, then harm (or something worse) could ensue to an occupant of the weighbridge station.

The Applicant knew that there was an occupant - Mr Conte - who was his relief in order for the Applicant to take his crib break. 86 The Applicant proceeded to the weighbridge station. He called up the crane driver over the PA system and told him not to pick up coil(s) (from the conveyor belt) adjacent to the station. The crane driver denied doing so and the Applicant called him a "fucking liar". 87 Mr Conte was unaware of where the coil(s) were being picked up from and thus could not shed any light on this part of the incident. 88 The Applicant said he was motivated by safety concerns. This was not the first time he had been so motivated. 89 It was the Applicant who reported the incident by contacting his superior, Mr Jim Owen who was the first of the investigating officers. The Applicant is recorded in the note of interview, carried out by Jim Owen, as saying that "Steve Smith has spoken to Ilija (the crane driver) about" (Ex 5 - JO 1). (The Commission pointed out to the parties that some of this interview record was missing and that explains why the above quote ends abruptly.) However, Jim Owen's witness statement provides more information on the reference to Steve Smith. Mr Owen deposes that the Applicant said at the time of his first interview (and shortly after the incident): "Steve (referring to Steve Smith) has spoken to Ilija (the crane driver) about lifting coils off next to the weighbridge cabin about a month ago." (Ex 5 - para 12). 90 The Commission observes, so far, that the Applicant has said he was motivated by safety concerns by leaving the crib break area of the factory and going back to the weighbridge cabin. This claim by the Applicant was not challenged in proceedings.

Be that as it may, the Commission observes that the Applicant gave the first investigating officer supporting evidence of that safety concern when he referred to Steve Smith. More than that, the Applicant was asserting (and it was never challenged) that Steve Smith, himself, had spoken to the crane driver about this safety issue. 91 Mr Bland was the second investigating officer. He interviewed the Applicant and records that the Applicant said to him that Steve Smith had been spoken to recently by the Applicant about the crane driver lifting coils beside the weighbridge cabin. (Ex 6 - page 16).

So, the Commission has evidence of the Applicant having advised another investigating officer of this safety issue. 92 Steve Smith was not called to give evidence to rebut the Applicant's claim of a safety motivation in approaching Steve Smith, concerning the crane driver's conduct in picking up coils adjacent to the weighbridge station. 93 The Commission is more than satisfied (given the prior safety incident) that the Applicant was motivated by safety concerns when he "lost it" with the crane driver. There was no conclusive evidence that the Applicant went beyond this "lost it" stage and, for example, threatened the person of the crane driver. The Commission says not conclusive, because the crane driver and Mr Conte did not give evidence in the proceedings and the Applicant denied the allegations of physical threats made by the Applicant against the crane driver. 94 That the Applicant and any other person working on site should be motivated by safety concerns, is to be expected. This is so because the Respondent consciously drives the mandatory requirement for a safe working environment. This drive is reflected in its safety policies and training. The Respondent has a safety policy called: Cardinal Rules - Our Life Preserving Principles. On every page of that policy document is inscribed: "Zero Harm". 95 The above scenario as to the Applicant being motivated by safety concerns, was put by the Commission to the Respondent's advocate, Mr Mead, during final submissions. Mr Mead rejected that scenario. He said that the Applicant had been warned about his behaviour and that there was an acknowledgement by the Applicant that he would not rely on the issue of provocation. 96 The Commission does not accept this argument in this instance. Firstly, the only certain evidence about this incident is the Applicant's outburst in the weighbridge cabin. The Commission has already found that that conduct in itself does not warrant dismissal. Secondly, even if the Applicant gave an undertaking not to respond to provocation, that then is a general undertaking on his part and one which he needs to justify in not so undertaking in a given circumstance. In this circumstance, his outburst against the crane driver was motivated by his concern for the safety of a fellow employee, Mr Conte. And there is no conclusive evidence that his conduct went beyond that outburst.

Accordingly, the Commission does not accept Mr Mead's argument in rejecting the safety scenario put to him during final submissions. 97 The Commission has found that the dismissal of the Applicant was unfair. Specifically, for the reasons stated above, the Commission finds that the dismissal of the Applicant was harsh, unjust and unreasonable: Outboard World Pty Ltd v Muir (1993) 51 IR 167.

The Commission accordingly makes the appropriate orders as to reinstatement of the Applicant into his former position without loss of continuity of employment and without loss of remuneration. ORDERS

The Commission hereby makes the following Orders: a) The Applicant (Mr Dirk Von Borstel) is to be reinstated by the Respondent (BlueScope Steel Pty Ltd) into his former position. b) The employment of the Applicant is to be taken not to have been broken by his dismissal. c) The Respondent shall pay to the Applicant an amount of remuneration, the Applicant would have received, had he not been dismissed from his former position. The amount of lost remuneration so ordered, shall be less the paid notice period provided to the Applicant on his dismissal. d) The Orders of the Commission shall take effect within twenty-one (21) days from the date of this Decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.