AWU, NSW (on behalf of Stojanovski) v BlueScope Steel - [2004] NSWIRComm 304 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

AWU, NSW (on behalf of Stojanovski) v BlueScope Steel

[2004] NSWIRComm 304

Industrial Relations Commission (NSW)|2003-03-20|Before: Walton J, Grayson DP, McClelland J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-03-20

Before

Walton J, Grayson DP, McClelland J, Mr J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

CITATION : AWU, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304 PARTIES : The Australian Workers' Union, New South Wales (on behalf of Vince Stojanovski) BlueScope Steel (AIS) Pty Ltd (formerly called BHP Steel (AIS) Pty Ltd) FILE NUMBER: IRC 4305 of 2004 CORAM: Walton J Vice-President; Grayson DP; Murphy C CATCHWORDS : Unfair dismissal - appeal - leave to appeal - verbally abusive and threatening conduct by employee - refusal to take drug and alcohol test - alcohol and other drugs management procedure - significant importance for industrial relations and occupational health and safety at steelworks - proper operation of procedure - distinction between first refusal and further refusals - inappropriateness of pursuing an employee with repeated requests after a refusal to test - consequences of refusal to test - abusive and threatening conduct by employee deserving of disciplinary sanction - requirement/failure to consider harshness of dismissal - lengthy service of dismissed employee - summary dismissal disproportionate to gravity of misconduct - harshness of decision to dismiss - leave to appeal granted - appeal upheld - reinstatement ordered without back pay and on conditions LEGISLATION CITED : Industrial Relations Act 1996 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Mitchforce v Starkey (2002) 117 IR 122 Al-Shennag v Bankstown City Council Civic Services Group (2002) 188 IR 138 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Weisser v Spur Group Pty Ltd (2003) 121 IR 89 Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Ltd [2003] NSWIRComm 461 Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003) CASES CITED : Federated Ironworkers Association of Australia, NSW Division v Australian Iron and Steel Pty Ltd, McClelland J, No 285 of 1979, 2 May 1999 Abboud v NSW Department of Education (1999) 92 IR 32 Byrne & Ors v Australian Airlines (1995) 61 IR 32 Electricity Commission of NSW t/as Pacific Power v Crump (1993) 48 IR 296 at 302 Little v Commissioner of Police [2001] NSWIRComm 9 Transport Workers' Union of Australia, NSW Branch on behalf of Joseph Vallis v TNT Australia Pty. Limited [2002] NSWIRComm 46 Federated and Municipal and Shire Council Employees Union of Australia NSW Division on behalf of Gregory Bowman v City of Sydney Council [2001] NSWIRComm 91 Police Association of NSW on behalf of Adam Tregonning v NSW Police Service [2000] NSWIRComm 14

[15]

8 In his decision of 1 July 2004, O'Neill C stated: I have considered all of the evidence in respect to this matter and it has become quite obvious throughout the course of the proceedings that in my view the Applicant Mr Stojanovski was given more than a fair go by the Company. The Commission does not support the view that the Applicant Mr Stojanovski was victimised, threatened, harassed or intimidated in any way at all. It is the view of the Commission that the Applicant Mr Stojanovski had over reacted and had refused a reasonable request by his employers firstly to come down from his crane and secondly to refuse a reasonable request for a drug and alcohol test particularly in regard to Mr Stojanovski's previous behaviour. It is also obvious in my opinion based upon the evidence and the balance of evidence that Mr Stojanovski reacted in a way which was aggressive towards his Supervisor, it is quite clear to the Commission that Mr Stojanovski had touched the Supervisor Mr Holman and that touching of any employee in the workplace is a totally unacceptable procedure, particularly in the manner in which this incident occurred. It was not acceptable for the Applicant Mr Stojanovski to refuse to take the drug and alcohol test. I turn now to the incident which occurred when Mr Stojanovski then claiming harassment went home. In my view this was simply a reaction by Mr Stojanovski to the incidents (sic) which had occurred previously where he had refused to accept the drug and alcohol test. Mr Stojanovski in order to avoid taking the test then decided to go home thus placing the Company in the position where it was no longer possible to take the test and to prove one way or the other what the position was of Mr Stojanovski. The reality of the situation was that if Mr Stojanovski had in any way not been well enough to come to work though (sic) the purposes of reacting to alcohol or some other problem then he should have had the curtesy (sic) to have the Company informed that he was not available to present himself for work and someone else should have been organised. It is a totally unacceptable practice to come to work when an employee is not in a fit state. The actions of Mr Stojanovski certainly gave cause for concern by the Company. There is no doubt in my opinion that the following occurred based upon the evidence given;

[16]

· Mr Holman smelt what seemed like alcohol on Mr Stojanovski's breath when he was speaking to him · That there was clearly a report of erratic crane driving from other operators · That the Supervisors had witnessed Mr Stojanovski load a coil incorrectly · The Supervisors had witnessed Mr Stojanovski hit the mobile sleeve rack · That Mr Stojanovski had initially refused and delayed coming down from his crane · That Mr Stojanovski had made gestures to Mr Holman that were out of character · That Mr Stojanovski had acted in an inappropriate manner towards all three Supervisors when asked about his driving and the damaged coils · That Mr Stojanovski following this refused a request that he undertake a drug and alcohol test which was repeated more than once and there is no excuse for this as the company can at any time can ask an employee to take a drug and alcohol test and there should be not (sic) problem with so doing In my opinion the Company is required to manage what is considers to be unsafe employees and it has a right to test for causes following a significant incident. In my opinion the incidents which occurred with Mr Stojanovski are more than sufficient to warrant him taking the test. In considering this matter it also must be remembered that on previous occasions Mr Stojanovski has had warnings for similar types of behaviour. Under the circumstances therefore it seems to me that very little can be done to help Mr Stojanovski. Mr Stojanovksi acted in an aggressive and abusive manner towards his Supervisors. He refused a reasonable request with respect to the drug and alcohol test which are an extreme matter of safety at the steel works and he refused a reasonable request to come down from his crane. There is not doubt in my mind that the incidents did occur and that Mr Stojanovski was responsible for them. I have also formed the view that Mr Stojanovski was avoiding the drug and alcohol test because of what he feared may well have been the outcome from them. Under the circumstances therefore it is my opinion the Mr Stojanovski has put himself outside the reasonable control of his employers and therefore no longer should be placed in employment at the steel works. In the Application therefore of Mr Stojanovski I find was not dismissed in a harsh, unjust and unreasonable manner. They had every cause and reason to terminate his employment which with a bit of thought by Mr Stojanovski could have well been corrected in another way, therefore the application is dismissed and the case concluded. We note that the proceedings before O'Neill C the respondent expressed its case in the alternative (although this was not acknowledges in the Commissioner's decision.

[26]

17 In considering that complaint and the employer's response to it, the Full Bench said this: [19.32] For it's part, BHP argued that no evidence had been led pointing to elements of confusion and secondly, that this clause is clearly referrable to a first refusal (which invokes the deemed positive result) and a further refusal (which has other connotations). We would observe that the comma after the word "Further" in the second sentence of the existing clause 8.0 of the Policy lends itself to a different construction than that for which BHP contends and adds weight to the AWU contention. The comma has the effect of giving the word "Further" the same or similar meaning as the words "in addition to the foregoing". If the comma were removed, the word "Further" would be given its adjectival meaning by reference to the word following it namely, the word "refusal". We are of the view that there should be a form of disciplinary sanction available for appropriate use in cases where there is repeated refusal to undertake tests. This is particularly so when it is considered that the AWU has adopted a position in support of a testing regime per se. [19.33] For clarity, we recommend the removal of the comma after the word "Further" at the beginning of the second sentence of the existing clause 8. We otherwise make no recommendation for change to this clause. Again, however, we point to the need for considerable care to be exercised by BHP in the implementation of this aspect of the Policy particularly as to the reasons why an employee may refuse to undertake a test. A clear example of the inappropriate application of disciplinary sanctions is to be found in the decision of the Full Bench of the Western Australian Industrial Relations Commission in Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003). In that case, it was found that the employee's dismissal following a refusal to undertake a drug test was an oppressive exercise of the employer's right to dismiss and it seems to us that the case stands as others may also, as a clear statement of the need to approach the use of disciplinary sanctions within the context of the Policy with due care and caution.