Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2009] NSWIRComm 1012

Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 CASES CITED: Homebush Abattoir Case (1966) AR 371 Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285

APPLICANT Andy Gillespie Australian Workers Union

LEGAL REPRESENTATIVES: RESPONDENT Aaron Dearden Duncan Cotterill Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Australian Workers Union and BlueScope Steel (AIS) Pty Limited

Notification of an industrial dispute by the Australian Workers Union under S.130 of the Industrial Relations Act, 1996 re warning given to employees

Referral of a matter under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel (AIS) Pty Limited

1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers Union has lodged a notification of an industrial dispute with BlueScope Steel (AIS) Pty Limited concerning warnings placed on the personal files of two general transport operators - Mr Paul Simmons and Mr Steven Jurd - at the stainless warehouse. The warnings were the first formal warnings given to the two employees. It was not attended by any unpaid suspension from work, however. 2 On Friday, 4 April, 2008 there was an incident involving Mr Simmons and a truck driver engaged by a contractor. An allegation was made by the truck driver against Mr Simmons that he had damaged his truck while he was transferring coils with a forklift and loading them onto the truck. The warning - a first written warning - placed on Mr Simmons' personal file was that he loaded the truck with coils whilst the truck driver was not using a height safety platform and that he stacked the coils incorrectly and failed to move them when asked by the truck driver. The subsequent warning to Mr Jurd was that he had advised Mr Simmons to give misleading information to BlueScope Steel management over the incident and had made a threatening comment to the truck driver.

3 The S.130 notification was allocated to me and I set it down for conferences on Monday, 28 April, 2008 in the Commission's premises at 90 Crown Street, Wollongong but I vacated those proceedings at the request of BlueScope Steel and with the concurrence of the AWU. I convened the proceedings instead on Tuesday, 29 April, 2008. Those proceedings and all subsequent proceedings were convened in Wollongong. Conciliation failed to settle this matter. The AWU sought the removal of the warning notices and BlueScope Steel initially rejected that claim entirely. I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner. 4 A protocol has been developed for industrial disputes in the Port Kembla steelworks of BlueScope Steel. Such matters are referred to the State Commission by way of individual referral agreements under S.146A and a referral agreement has been provided and signed on behalf of the AWU and BlueScope Steel in the following brief terms:

But it is a clause of the referral agreement (Clause 7), consistent with that protocol that has been developed for arbitration of such matters, that unless the parties agree to waive the requirement:

"...an application for leave for the matter to be arbitrated will be heard by a Presidential member of the Commission..."

5 BlueScope Steel had sought to refer the matter in accordance with that clause and I directed the parties to provide written submissions to accommodate that referral, forwarding the file to Grayson DP who in chambers on Tuesday, 1 July, 2008 granted leave for the matter to proceed, publishing his reasons, viz:

"...Having regard to the matters required to be taken into account by Clause 7 of the referral agreement in this matter, I determine that the application by the...AWU...for leave to arbitrate be granted. In so doing I note, among other things, that the application raises issues to do not only with the alleged harshness of the penalty but also with the conduct of the manager of logistics. This issue, whilst raised by the union in its application for leave to arbitration, does not appear to be adequately ventilated in the company's written contentions as to whether it may be an issue of substance and/or relevance to the proceedings..."

The file was returned to me. 6 I set the matter down for a further mention for programming on Tuesday, 8 July, 2008 and directed the parties to file and serve evidentiary material for a hearing scheduled for Monday, 8 September, 2008. There was a delay on the part of the AWU to comply with those directions. That evidentiary material from the AWU was not filed and served until Friday, 5 September, 2008, putting in jeopardy the hearing scheduled for Monday, 8 September, 2008. The hearing was therefore abandoned. So too was a subsequent hearing scheduled for Monday, 3 November, 2008, then Tuesday, 11 November, 2008 and Tuesday, 9 December, 2008. The absences of witnesses required by BlueScope Steel for the hearing presented some difficulties at that time for the arbitration to proceed. Moreover, Mr Simmons' ill health for some time delayed the hearing. Mr Gillespie, who had coverage of the matter for the AWU was also unavailable on one of the dates scheduled for the hearing.

7 It was not until Monday, 16 March, 2009 that the hearing actually took place. In that hearing Mr Gillespie represented the AWU and Mr Dearden represented BlueScope Steel. In the intervening period further efforts had been made by the parties to negotiate a settlement of this matter. As far as Mr Jurd was concerned, BlueScope Steel indicated that it was prepared to convert the warning to him into a file notation only. However, the warning notice for Mr Simmons was to remain and the offer made to the AWU on behalf of Mr Jurd was to be conditional on the AWU accepting it in full and final settlement of all issues in dispute, involving both Mr Jurd and Mr Simmons. If the AWU did not accept that proposal the warning notice for Mr Jurd would remain.

8 That was the position at the commencement of the hearing on Monday, 16 March, 2009. Further efforts at conciliation before the hearing commenced were explored by me and they were partially successful. Mr Jurd, through Mr Gillespie, indicated that he was now prepared to accept the downgrading of his warning to a file notation. The matter involving Mr Simmons should proceed more formally on the basis of submissions by the parties, relying on the uncontested evidentiary material already supplied for the hearing and by my making a recommendation concerning the matter which the parties undertook to accept.

9 According to the written statement of Mr Simmons, on Friday, 4 April, 2008 he was working on shift and:

"...the truck driver came to the dispatch window to collect some paperwork. I handed this to him and told him to proceed to shed No.4. One of the coils was in shed No.1 but I told him I would bring that across to him. When I got out of shed No.1, I notices his truck just inside the doorway of shed No.4 so I had to travel the full length of the shed to load that one coil. I then had to proceed back up to the other end of shed No.4 to get the other two coils.

When I picked up the coil I noticed that the driver had not moved up the shed to where I was working, which is what is usually done. Since the driver had not moved up the shed, I thought I would get the second coil and take them both down together. I took them down and when I got there the driver was standing on the back of his trailer, which he should not have been doing.

I picked up one coil to load on his trailer and he said he did not want the one that I had, but wanted the other coil that I had brought down. So I loaded the coil onto his trailer with him standing on the back of it. When I put it down, it went down with a bang, probably a little harder than normal.

I then picked up the third coil and had to wait while he was putting his chain over the coil that I had just loaded. He moved back out of the way so that I could load it and, when he was clear, I loaded the last coil and placed it where I thought it should have been, which was pretty much near the middle. As I was reversing out he signalled for me to move it forward about six inches. I told him to move down and I would move the coil across when he moved his truck because he was blocking the doorway and there were other trucks waiting to come in. I then drove off and started to load another truck..."

10 It was Mr Jurd who adjusted the load of coils on the driver's truck and the driver told him that he wished to make a complaint about Mr Simmons, alleging he had damaged his truck. Mr Jurd claimed that he and the driver inspected the truck and that he could not see any damage. But he called Mr Simon Grimm, a supervisor, and the driver told him:

"Your forklift driver damaged the rocket box bush on the rear left hand side of the trailer."

11 Mr Grimm inspected the truck. The driver showed Mr Grimm two bolts at the back of the trailer. The rubber seal on one of those bolts had been broken. Whether Mr Simmons caused that damage of whether it had been broken earlier, it is not clear. Mr Grimm asked the driver where the broken rubber seal was and was informed by the driver:

"It had crumbled and turned into dust when the coil was placed on the trailer with force."

To my mind, that is not a particularly convincing tale. If the damage had occurred at that time, the damaged rubber seal should have been present. It seems that Mr Simmons and the truck driver had simply had a disagreement over where the truck was being loaded and the truck driver had made the complaint about Mr Simmons to get even with him in some way. The alleged damage to the truck is ultimately not what caused concern to BlueScope Steel management, however.

12 The driver informed Mr Grimm that he had been standing on the back of the truck and he observed Mr Simmons dump the coil on the truck, pushing it across and thereby causing the damage. Mr Grimm asked:

"What were you doing on the back of the truck? You know you are meant to use the height safety platform."

The driver claimed that he had been told by Mr Graeme Agnew, the site operations manager at that time, that he did not have to use the height safety platform. (That claim is apparently denied by Mr Agnew.) The truck driver was clearly acting in an unsafe manner. It is Mr Dearden's understanding that the contractor has disciplined the truck driver over the incident - as he should have been. But the truck driver's conduct is not before me in these proceedings. These proceedings now concern only the conduct of Mr Simmons.

13 Mr Grimm subsequently carried out an investigation of the incident and he claimed that during his interview with Mr Simmons he at first admitted carrying the coils stacked two high which, according to Mr Grimm, had previously been discussed at toolbox and safety meetings and described as a clear breach of standard operating procedure. However, at that point Mr Jurd interjected, suggesting:

And Mr Simmons changed his version of events. Mr Grimm recorded in his written statement that:

"...I was very disappointed that Mr Simmons changed his version of events following Mr Jurd's comments. Mr Simmons had already told us that he carried the coils stacked two high. By changing his story he was clearly trying to avoid telling the truth and avoid any disciplinary action..."

14 The copies of written statements were subsequently provided to Mr Graeme Timperon, the manager of BlueScope Steel logistics operations and on Tuesday, 8 April, 2008 he met with Mr Agnew and Ms Alicia Simmonite, a human resources advisor for BlueScope Steel. It was Mr Timperon's opinion that Mr Simmons had breached two standard operating procedures - loading the truck whilst the driver was standing on the deck of truck and carrying coils on top of each other. It was agreed by Mr Timperon and Ms Simmonite that both Mr Simmons and Mr Jurd should receive a formal warning.

15 On Thursday, 10 April, 2008 Mr Timperon provided a written warning to Mr Simmons. The letter referred to those alleged breaches of standard operating procedures by Mr Simmons and commented in the following terms:

"....In consideration of your actions...and subsequent admissions, I have found that you have failed to adhere to previous instructions from Logistics management in relation to height safety and safe forklift operations. As part of your employment at BlueScope Steel, it is a requirement that you adhere to these operating procedures, as it is critical to your safety and that of others working around you.

As a result of your actions, I have decided to issue you with a written warning. This letter will be considered a first written warning and will be placed in your personnel file...as a record of your misconduct. A review of your performance will be arranged on Monday, 28 April, 2008. During this period Mr Agnew will be assessing your conduct. Should this or another incident occur, such as poor performance, safety breaches, poor timekeeping or attendance or any other issue, further disciplinary action may occur, up to and including the termination of your employment at BlueScope Steel.

I encourage you to take your actions into consideration and make every effort to improve and correct your behaviour to ensure that this does not occur again in the future..."

16 It is common practice in the BlueScope Steel operations for warnings given to employees to be retained indefinitely on their personal files to establish an overall employment record. As far as the Commission is concerned however, I believe that all warning notices to employees should have a finite life. The warning notice to Mr Simmons is almost twelve months old by the time the arbitration of the matter finally got underway. But it is still not a dead letter as far as Mr Simmons and the AWU is concerned. I accept that, particularly in the current uncertain economic climate, employees may be somewhat sensitive to having any adverse comments recorded on their personnel files, making them more vulnerable to retrenchment in a downturn of work or standing in the way of possible promotions or transfers to other positions in the steelworks in future.

17 Moreover, in view the references in the warning notice to poor performance, timekeeping or attendance "...or any other issue...", the warning notice may go further than was strictly appropriate in the circumstances. There is nothing before me in the evidence to suggest that Mr Simmons has ever been guilty of that type of misconduct. I have formed the impression from the evidence before me that the incident on Friday, 4 April, 2008 was an isolated one for Mr Simmons.

18 The warning notice to Mr Simmons was chiefly over safety concerns by BlueScope Steel management and Mr Dearden has emphasised workplace safety in his submissions. And BlueScope Steel is entitled to regard safety issues very seriously. The steelworks is not a workplace which permits a casual approach to safety issues. In fact, I raise safety issues in the steelworks to the level of a fundamental condition for all employees working there. In my unreported decision of Wednesday, 19 December, 2007 in Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [Matter Nos.IRC 1190, 1191 and 1485 of 2007] I went so far as to suggest (at pp.19 and 20) that:

"...such a fundamental breach of an important condition of contracts of employment in the steelworks is... misconduct. (The two dismissed employees) recklessly disregarded what I consider to be an essential condition in their contracts of employment at the steelworks [ Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285]. That is sufficient to ground (the) allegation that they were guilty of misconduct. I note in that respect the comments of Cook J of the former State Industrial Commission in the Homebush Abattoir Case (1966) AR 371 at p.374), viz: '…In my view, the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service ...'. My emphasis. The conduct of the (dismissed employees) strikes at the heart of their employment in the steelworks..."

19 Mr Gillespie, whilst not challenging the need for safety in the workplace, argued in his submissions that the warning notice given to Mr Simmons was a "...knee jerk..." reaction on the part of BlueScope Steel management and he proposed that it be converted to a notation placed on Mr Simmons' personnel file (as has been the position with Mr Jurd) or, alternatively, to remove it altogether. Mr Gillespie claimed that Mr Simmons was being made a scapegoat for the failure of the management to ensure safe working practices in the past, suggesting that in the past it had been common practice for forklift operators to carry coils on top of one another and that practice had only ceased after the incident involving Mr Simmons on Friday, 4 April, 2008.

20 To support his claim Mr Gillespie provided me with a document from BlueScope Steel management dated Tuesday, 5 August, 2008, ie four months after the incident. Among other things, that document outlined standard operating procedures including [5.43]:

The document purports to be a reflection of a review of standard operating procedures for forklift operations of BlueScope Steel. Of course, the fact that instruction concerning the movement of coils is contained in a document produced after the incident on Friday, 4 April, 2008 is no confirmation of the fact that the practice was not already proscribed before that time. The document is described as a revision of standard operating procedures already in existence. BlueScope Steel argued (in the written submissions for Grayson DP over the question of leave for the arbitration which Mr Dearden sought to rely on in this hearing) that both Mr Simmons and Mr Jurd had received training on the appropriate operation standards for forklifts, including height safety protection.

21 And what ultimately convinces me that Mr Simmons and Mr Jurd were aware of the instruction not to stack coils on the forklift on top of one another when they are being transported was their conduct at the meeting they had with Mr Grimm. The fact that Mr Simmons changed his story, and Mr Jurd suggested that he do so, can mean only that they both knew of the direction concerning the transporting of coils and that it was wrong for them to carry the coils stacked on top of one another. I am satisfied that Mr Simmons (and the truck driver) acted unsafely and that Mr Simmons breached standard operating procedure known to him.

22 Recognising the seriousness of the incident, Mr Dearden suggested in his submissions that it was open to me to recommend that the first warning notice given to Mr Simmons be altered into some more extreme penalty for him, ie a final warning, unpaid suspension, or even dismissal. Particularly in the light of the comments I made concerning the importance of workplace safety in the steelworks in Abbott and Markham v. BlueScope Steel (AIS) Pty Limited, it has to be said that the penalty imposed on Mr Simmons was far from an extreme one. I note particularly that the warning - given to Mr Simmons - the first written warning for him - was not even accompanied with any period of unpaid suspension for him. Therefore he has not suffered financially from the incident. But after this length of time between the incident and these arbitrated proceedings, I am not convinced that any good purpose would be served by raking over what is, after all, fairly dead coals, in my opinion. BlueScope Steel management assessed the penalty immediately after the incident, following an investigation of it. I do not believe that at this late stage it would be appropriate for me to increase the penalty to Mr Simmons and I do not make any recommendation to that effect.

23 But equally, I see no grounds for my intervention to recommend the removal or modification of the warning notice already given to Mr Simmons. I decline to do so. I bring this matter to a conclusion on that basis.

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