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

Australian Workers' Union, New South Wales (on behalf of Dirk Von Borstel) v BlueScope Steel - [2007] NSWIRComm 1009 - NSWIRComm 2007 case summary — Zoe

[59]

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.

[80]

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.

[86]

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.

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