Corbeski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170

Briginshaw v. Briginshaw (1938) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 CCH Australia Limited v. Bowen (1998) 79 IR 206 Four Sons Pty Limited v. Limsiripothong (2000) IR 1 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Homebush Abattoir Case (1966) AR 371 Jones v. Dunkel (1959) 101 CLR 298 Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 CASES CITED: M v. M (1988) 63 ALJR 108 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 Oswald v. New South Wales Police Service (1999) 90 IR 42 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Perks and Petrovski v. New South Wales Department of Juvenile Justice [2005] NSWIRComm 458 Scott v. London and Katherine's Docks Company (1865) 3 H & C 596 Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454

APPLICANT Dave Hancock Australian Workers Union LEGAL REPRESENTATIVES:

RESPONDENT Michael Mead Australian Industry Group

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Ilija Corbeski and BlueScope Steel (AIS) Pty Limited

Application by the Australian Workers Union under S.84 of the Industrial Relations Act, 1996

Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 re termination of an employee

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

1 Mr Ilija Corbeski was employed as a crane driver with BlueScope Steel (AIS) Pty Limited in the hot coil processing department under the terms of the BlueScope Steel (AIS) Pty Limited Port Kembla Steelworks Employees Award. His services were summarily terminated on Tuesday, 25 July, 2006 after a very lengthy period of employment - 40 years. For 23 of those years Mr Corbeski was engaged as a crane driver. Mr Corbeski was summarily dismissed for serious misconduct, ie on Friday, 21 July, 2006 he allegedly moved the tongs of an overhead crane towards Mr Dirk Von Borstel, an operator and fellow employee - purposefully and in an aggressive and threatening manner, according to BlueScope Steel.

2 Mr Corbeski is a member of the Australian Workers Union which lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act on his behalf. I understand that Mr Von Borstel has also been dismissed over the incident and the AWU has lodged a Part 6 application on his behalf as well which is being heard by another member of the Commission (Macdonald C). But as far as Mr Corbeski is concerned, BlueScope Steel claim that Mr Corbeski's conduct constituted a breach of the "cardinal rules" which it has established in the workplace to ensure a safe working environment. BlueScope Steel management assert that his dismissal was warranted in all the circumstances. The AWU argues that Mr Corbeski's action did not constitute such a safety issue as to justify his dismissal.

3 The matter was allocated to me and I set it down for a preliminary hearing and a mention on Monday, 11 September, 2006 (in the Commission's premises at 90 Crown Street, Wollongong on Tuesday, 29 August, 2006). My attempts at conciliation were not successful. I programmed the proceedings in accordance with the standard approach flowing from Practice Direction No.17 - the AWU was to file and serve its evidentiary material by no later than Monday, 2 October, 2006, BlueScope Steel was to respond with its evidentiary material by no later than Monday, 23 October, 2006 and the AWU was to provide anything further in reply by no later than Wednesday, 1 November, 2006. I tentatively arranged for days for hearing the AWU claim on behalf of Mr Corbeski before me - on Monday, 20 November, 2006 and Tuesday, 21 November, 2006 (in Wollongong).

4 On Friday, 17 November, 2006 Mr Mead, representing BlueScope Steel in the proceedings, foreshadowed in a telephone conversation with me that he would be seeking an inspection of the hot coil processing department and arrangements for that inspection would be made for Tuesday, 21 November, 2006. Mr Hancock, representing Mr Corbeski and the AWU in the hearing, did not oppose the inspection but, naturally enough, did not believe that it was appropriate for any evidence to be led until after that inspection had been completed. I agreed. Moreover, Mr Corbeski required a Macedonian interpreter to assist him in giving his evidence and, although a request was made for one to the Language Services of the Ethnic Affairs Commission in sufficient time - on Monday, 6 November, 2006 - and confirmation of that request was received, none was in fact provided for the hearing on Monday, 20 November, 2006 and difficulties apparently also arose for the interpreter to be provided at short notice for the resumed hearing on Tuesday, 21 November, 2006.

5 The inspection took place on Tuesday, 21 November, 2006 and the hearing resumed before me on Tuesday, 28 November, 2006 with written submissions being provided by the parties subsequently. Mr Hancock called Mr Corbeski and his son (an electrician also employed by BlueScope Steel in the slab caster) to give evidence in the hearing. As originally arranged, Mr Corbeski's evidence was provided with the assistance of a Macedonian interpreter. Mr Mead called two witnesses to give evidence in the hearing: Mr Maxwell Bland, the manager of the hot coil processing department, and Mr James Owen, a relief shift team leader of the hot strip mill. Mr Ross Green, an electrical technical officer, had provided a written statement for his evidence in the hearing, essentially of a technical nature concerning the operation of the crane. His hospitalisation on the day of the hearing prevented him from being called by Mr Mead but Mr Hancock did not object to his witness statement being admitted into evidence.

"A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement."

Agreement has been reached for BlueScope Steel's operations in Port Kembla for a protocol for individual S.146A(2) referral agreements to be completed for each matter and in this case BlueScope Steel and the AWU have completed such a referral agreement for the resolution of the following matter for arbitration:

"The dispute concerns the alleged unfair dismissal of Mr Ilija Corbeski for serious misconduct. "

7 The AWU has also lodged a S.130 notification on behalf of Mr Corbeski to bring his claim of unfair dismissal forward. Mr Mead in the proceedings on Monday, 11 September, 2006 contended, with the concurrence of Mr Hancock, that the jurisdiction to arbitrate the matter falls under S.146A(2) and he proposed that the file be amended accordingly. I therefore amended the file to note the matter as being an application made under S.146A(2) but for abundant caution, I also issued the certificate of attempted conciliation required under S.135 and lodged it in the prescribed manner.

8 In the inspection on Tuesday, 21 November, 2006 I was shown the site of the incident which led to Mr Corbeski's dismissal. A waist high metal fence runs the length of the hot coil processing plant to separate, for safety reasons, an area with a cradle conveyor and rail tracks, on the one hand, and areas where the coils are stacked on pallets, on the other hand. There is a weighbridge cabin situated adjacent to the fence. The overhead crane which Mr Corbeski was operating has large metal tongs to pick up the coils. It travels the length of the plant and also cross-travels to select coils for transporting between the conveyor to the area where they are stacked on pallets.

9 On Friday, 21 July, 2006 Mr Corbeski was operating the overhead crane, lifting coils and placing them on pallets. Mr Von Borstel, who was working on the weighbridge, called on the public address system that Mr Corbeski had picked up a coil from the wrong spot. Mr Corbeski disputed that he had picked up the wrong coil. The exchange between Mr Corbeski and Mr Von Borstel apparently became somewhat heated. Further details of their conversation is not in evidence before me. I have nevertheless formed the impression that there was bad blood between Mr Corbeski and Mr Von Borstel. Mr Corbeski indicated in his evidence that he did not have any difficulties with any other operator when they worked on the weighbridge but he conceded that he did have a problems with Mr Von Borstel.

10 When Mr Corbeski brought his crane back to pick up the next load, Mr Von Borstel and Mr Carlo Conte, another operator, were standing outside the weighbridge cabin approximately four metres the other side of the fence. Mr Corbeski claimed that he gestured to the two employees to move away so that he could pick up the next coil and he moved the tongs on the crane approximately two metres and then stopped as Mr Von Borstel had not moved away. Ultimately, Mr Von Borstel did move away and Mr Corbeski continued his work.

      RAIL
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          CONVEYOR
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‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡ FENCE WEIGHBRIDGE CABIN

11 I am informed by Mr Bland that he does not believe that it is a safe practice for the crane drivers to cross-travel with the tongs of the crane near the area of the operator's cabin. If coils were being stacked on pallets in the area beside the weighbridge cabin, Mr Bland believes that the crane driver should instead move the crane further down the plant before he cross-travels. I share Mr Bland's view that the preferable course for crane drivers is to avoid the area near the weighbridge entirely. Nevertheless, Mr Bland informed me that there were no formal directions made to the crane drivers in that respect. That is a matter which may properly be the subject of review by the relevant occupational health and safety committee. Alternatively, it may be possible for the track for the tongs on the crane to be locked off so that it is not possible for the crane tongs to cross-travel near the weighbridge cabin.

12 Mr Von Borstel called Mr Owen on the telephone and asked him to come and talk to him. Mr Von Borstel said on the telephone:

"I have had a confrontation with another crew member and I want to tell you about it."

Mr Owen went to talk to Mr Von Borstal at the weighbridge and Mr Von Borstal told him that he had asked Mr Corbeski not to pick up the coils from the cradle conveyor and that had led to an argument with Mr Corbeski. Mr Von Borstal claimed to Mr Owen that, during the argument Mr Corbeski:

"...had made provocative gestures with his hands at me, including moving his hand across his throat to indicate slashing his throat..."

13 Mr Von Borstal then went on to tell Mr Owen that Mr Corbeski had gestured to Mr Conte, who was standing next to Mr Von Borstel, to move away and Mr Corbeski then moved the crane so that the coil tongs were above his head. Mr Von Borstal then said to Mr Owen:

"My blood pressure is very high. I want to get this checked out at the medical centre. Can you take me there."

Mr Owen took Mr Von Borstel to the first aid station and informed him that he would need to take the matter further. He took the matter to Mr Bland who instructed him to interview all the employees involved in the incident and later Mr Bland also spoke to those employees.

14 After approximately 15 minutes Mr Corbeski had stopped work and took his crib. Some 40 minutes after his crib break Mr Owen called him back to the crib room. He waited for some time - 4 or 5 hours, according to Mr Corbeski during which, according to his written statement, he was "...stressing out wondering what the problem was...". He then attended an interview with Mr Bland and Mr Owen. Mr Graham Wilson, the AWU delegate, was also present at the meeting. At the meeting Mr Corbeski was accused of moving the tongs on the crane in a threatening manner towards Mr Von Borstel. Mr Bland suspended Mr Corbeski pending the further investigation of the matter. Mr Corbeski was directed to leave the site and he went home on paid suspension.

15 Mr Corbeski was to return on Tuesday, 25 July, 2006, which was the next day he was rostered on duty. On Tuesday, 25 July, 2006 he attended a further meeting with Mr Bland and Ms Karen Styles, a human resources advisor for BlueScope Steel. Mr Hancock represented Mr Corbeski in the meeting. Mr Corbeski's son was also in attendance to assist him and act as an interpreter for him. 16 At the meeting Mr Corbeski was dismissed. The following letter dated Tuesday, 25 July, 2006 and signed by Mr Bland confirmed his summary dismissal, viz:

"...This is to confirm that your employment with this company has been terminated. Due to the events arising on Friday, 21 July, 2006 you are summarily dismissed for serious misconduct. You are entitled under the award to lodge an appeal within 7 calendar days..."

An appeal by the AWU against that decision to dismiss Mr Corbeski was made to Mr Tony Green, the manager of the hot strip mill, and Mr Andrew Whitfield, the human resources manager. That appeal was unsuccessful and Mr Corbeski's dismissal remained.

17 There is conflicting evidence concerning this incident. Mr Owen and Mr Bland, who conducted investigations over the incident, have formed certain views from that investigation which departs from the evidence given by Mr Corbeski and his son in this hearing. Mr Owen's investigations confirmed that Mr Von Borstel and Mr Corbeski had argued over what Mr Von Borstel considered to be the unsafe removal of a coil from the channel top conveyor. Mr Conte informed him that, whilst he did not hear what was actually being said by Mr Von Borstel and Mr Corbeski, they were shouting at one another. Mr Von Borstel conceded to Mr Bland that he had "...lost it...". Mr Von Borstel was acting aggressively to Mr Corbeski and, according to Mr Owen, Mr Conte told him that Mr Corbeski was responding with offensive gestures. Mr Owen recorded in his written statement that Mr Conte told him that:

"Mr Corbeski then gestured for me to move away from Mr Von Borstel and then cross-travelled the crane's tongs towards the place where Mr Von Borstel was standing. The tongs stopped about two to four metres away from Mr Von Borstel. Mr Corbeski then moved the tongs away from Mr Von Borstel."

18 When Mr Owen spoke to Mr Corbeski he was informed by him that Mr Von Borstel had been shouting and threatening him, viz:

According to Mr Owen, Mr Corbeski at first denied to him that he had made offensive gestures - throat cutting motions - but later admitted that he may have made those gestures in response to Mr Von Borstel's threats. Mr Bland claimed that Mr Corbeski denied to him that he had made throat cutting gestures to Mr Von Borstel but later admitted that:

"I used two thumbs in an upward direction to tell Mr Von Borstel to get fucked."

Mr Corbeski confirmed what he had told Mr Bland in his evidence in this hearing but he indicated in his evidence that at no time did he make any gestures of threat to Mr Von Borstel. Mr Owen claimed that Mr Corbeski had admitted to him that he had directed that Mr Conte move away from Mr Von Borstel. Mr Corbeski claimed that he had directed both employees to move away.

19 According to Mr Owen and Mr Bland, Mr Corbeski had also admitted to them that he had moved the crane across to Mr Von Borstel but he claimed that the crane did not go over Mr Von Borstel's head. It was stopped more than two metres away at the fence. Mr Corbeski continues to make that assertion. Mr Bland and Mr Owen accepted that the crane did not go over Mr Von Bostel's head, contrary to what Mr Von Borstel's asserted. However, Mr Owen claimed that Mr Corbeski had told him that he had, in fact, moved the crane to scare Mr Von Borstel. Mr Corbeski allegedly said to him:

"I did that to scare Mr Von Borstel because he had threatened to kill me. I did not go over his head."

And, according to Mr Bland, he made a similar comment to Mr Bland when he interviewed him, viz:

"I did do this but only to scare him. I stopped the tongs at the fence next to the channel top. I didn't take them over Mr Von Borstel's head. I know that would be unsafe."

20 In his evidence in this hearing Mr Corbeski denied that he was attempting to scare Mr Von Borstel. He claimed that he simply required to cross-travel the tongs of the crane to that area and to move the coils. He recorded in his written statement in reply that:

"...I moved the tongs approximately two metres towards the fence and never went past the fence with the hoist fully elevated: this would hardly scare anyone..."

"...Mr Bland continuously asked the same questions which was confusing as I didn't really understand him..."

Mr Corbeski and his son continue to claim that Mr Corbeski was very confused over the incident and did not understand what had been put to him by Mr Owen and Mr Bland. The Dismissal

21 At the meeting on Tuesday, 25 July, 2006 Mr Bland gave an outline of his understanding of the incident. Mr Corbeski's son claimed that his father did not understand English very well. To assist, Mr Bland drew a diagram on the whiteboard to explain the incident. Mr Corbeski asked a number of questions and Mr Bland formed the impression that Mr Corbeski was following the discussion and actively participating in it. Mr Bland then asked Mr Corbeski:

22 Mr Corbeski's son volunteered another version of the incident, replying for him:

"My father told me that this was an accident. He waved his arms and accidentally bumped the cross-travel controller. When he realised what he had done, he stopped the cross-travel from moving."

And Mr Corbeski adopted what his son had said, adding:

"This was an accident. When I realised the cross-travel was moving I stopped it. It went no further than the fence."

23 Therefore, there are three versions of the incident: (i) that Mr Corbeski had moved the tongs of the crane to scare Mr Von Borstel; (ii) that he moved the tongs purposefully to carry out the work required of him; and (iii) that the crane was moved as an accident. Mr Corbeski now asserts in his evidence that he was simply doing his job and that he did not move the crane to scare Mr Von Borstel nor that he accidentally bumped the cross-travel controller. That is the version I take to be his evidence in this hearing. 24 But Mr Bland saw things differently. Mr Corbeski's assertions in his evidence was not consistent with what Mr Owen and Mr Bland claim that Mr Von Borstel, Mr Conte and, more importantly, what Mr Corbeski had already told them when they investigated the incident on Friday, 21 July, 2006. Mr Bland said to Mr Corbeski that:

"Mr Von Borstel said that you had cross-travelled and taken the tongs towards him. He also said that you motioned for Mr Conte to get out of the way before moving the tongs. Mr Conte confirmed this fact. You also told Mr Owen twice, and me once, when spoken to about the incident that you had moved the tongs towards Mr Von Borstel in order to scare him."

"I was confused. You made me wait in the crib room for two hours. Just like in gaol."

And that essentially is his position in his evidence before me in this hearing - that he was confused. Mr Bland reminded Mr Corbeski that he had already spoken to Mr Owen and admitted that he had attempted to scare Mr Von Borstel prior to his wait in the crib room. Mr Corbeski did not reply.

26 Mr Bland formed the view that Mr Corbeski's actions were deliberate and designed to threaten or intimidate Mr Von Borstel. Mr Bland and Mr Owen are both inclined to accept that the crane stopped at the fence and did not go over Mr Von Borstel's head. However, they still regard Mr Corbeski's actions as a serious safety breach. As such, his actions constituted serious misconduct and were grounds for his dismissal. Mr Green and Mr Whitfield also took that view in the appeal to them and his dismissal was confirmed.

27 Obviously, the allegation made against Mr Corbeski is a serious one. As Mr Mead has pointed out in his written submissions, the tongs on the crane weigh in excess of four tonnes: they are not a toy. If they dropped unexpectedly due to a malfunction - and there have apparently been occasions in the past where that has occurred - they could cause death or serious injury to any person unfortunately working under them. The "cardinal rules" of BlueScope Steel highlight the importance of safety in the steelworks and it is critical that the employees follow them in their own interests and the interests of their workmates. 28 BlueScope Steel has a common law duty of care to provide a safe working environment and a safe system of work for all of its employees, complimented by S.8(1) of the 2000 Occupational Health and Safety Act. And employees have responsibilities in that respect as well. For instance, S.20(2) provides as follows:

"An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person."

A penalty is imposed against an employee under S.20(2). So, quite apart from the obligations that flow from the Bluescope Steel "cardinal rules", which are sensible enough, there is an overriding responsibility on employees under S.20(2). In any event, it is no more than common sense that every employee, in his own interests, look after his safety at work and the safety of others. And I would think that it goes without saying that a crane driver should not use his crane as a weapon in an altercation he has with another employee.

29 As I read Mr Hancock's written submissions, he does not challenge the "cardinal rules" in this hearing in any way. However, he believes that I cannot rely on the evidence of Mr Owen and Mr Bland, neither of whom were actual witnesses to the incident involving Mr Corbeski, Mr Conte and Mr Von Borstel. Mr Hancock argued that the evidence of Mr Owen and Mr Bland should be excluded as hearsay - what they were told by other persons. Apart from Mr Corbeski, the only other witnesses in the hearing - Mr Conte and Mr Von Borstel - were not called by Mr Mead. 30 Mr Von Borstel's evidence would no doubt be self-serving were he to give evidence in this hearing. It would be far from impartial, in any event. But in the absence of Mr Conte's version of the incident as direct evidence, Mr Hancock urged me to draw inferences in favour of Mr Corbeski's evidence [Jones v. Dunkel (1959) 101 CLR 298]. The fact remains, however, that Mr Hancock did not call Mr Conte either to corroborate what Mr Corbeski now asserts concerning the incident. Mr Conte would no doubt be a very reluctant witness in a contest between two fellow employees, both of whom have been dismissed, and that is the more likely reason he was not called by either Mr Mead or Mr Hancock. I certainly appreciate why Mr Mead did not call Mr Conte to provide evidence in this hearing but it still leaves me with a gap in the evidence that is actually before me.

31 And Mr Hancock is entitled to raise in issue that the evidence of Mr Owen and Mr Bland is essentially hearsay - what they were told by Mr Corbeski, Mr Von Borstel and Mr Conte. I may confidently rely on their evidence only to the extent that they may tell me what was actually said by those three employees to them and not the accuracy of their version of the incident itself, albeit that what they were told was fairly contemporaneous with the incident and I have little doubt that they have truthfully and accurately recorded what they have been told [Subramaniam v. Public Prosecutor (1956) 1 WLR 965]. I must therefore primarily turn to Mr Corbeski's direct (if often confusing and contradictory) evidence. 32 Of course, that does not mean that I must accept Mr Corbeski's version of the incident blindly and without question if, on its own, it is simply not plausible. In his written submissions Mr Mead highlighted what he described as the "...inconsistencies and improbabilities inherent in the applicant's evidence..." and he suggested that it was open to me to adopt the version of events as outlined by Mr Owen and Mr Bland in their evidence despite the absence of direct evidence from Mr Conte and Mr Von Borstel. He invited me to do so.

"...Mr Corbeski himself states that he moved the tongs towards the fence to pick up the next coil (west to east) and did not go past the fence. Mr Bland and Mr Owen stated that crane drivers with experience don't misjudge picking up coils 90% of the time. But then there is that 10%. Mr Von Borstel and Mr Conte were standing four metres away from the fence. Both alleged that Mr Corbeski indicated for Mr Conte to move but both stood their ground. The union submits that if the employees stood their ground then they had no fear of harm..."

But if Mr Corbeski was simply performing the task of moving coils from the conveyor to be stacked on pallets, what need would he have to move the unloaded tongs across the area where Mr Von Borstel and Mr Conte were standing? The tongs would be holding coils if the crane was moving in that direction. He would have no reason to move the unloaded tongs in that direction at all, I would think. It would be logical to assume that Mr Corbeski was carrying on the argument he had with Mr Von Borstel by moving the tongs of the overhead crane in his direction to scare him, as Mr Bland and Mr Owen believe and as, they claim, they were originally told by Mr Corbeski himself. 34 Furthermore, whilst Mr Corbeski's understanding of English may be less than perfect, I am not convinced that he was as confused in the explanations he gave to Mr Owen and Mr Bland over the incident as he now makes out. Mr Corbeski has over 40 years of employment with BlueScope Steel and presumably would have received directions in English during that time. Mr Owen and Mr Bland both point out that Mr Corbeski was able to understand English instructions given to him. And if Mr Corbeski has the poor grasp of English that he now professes in his evidence, it would no doubt act against his ability to perform his job as a crane driver effectively and safely. The evidence before me suggests that is not the case. Mr Owen and Mr Bland indicated in their evidence that Mr Corbeski was an active participant in training sessions conducted on site in English. 35 As for the claim advanced by Mr Corbeski's son, and adopted by Mr Corbeski, in the meeting with Mr Bland on Tuesday, 25 July, 2005 - now rejected by them - that the crane was moved by accident, that simply could not have been the case. How could there have been such an accident when, according to Mr Corbeski's own evidence, it was preceded by his directing Mr Von Borstel and Mr Conte to get out of the way? I suspect that the version advanced by Mr Corbeski's son in the meeting on Tuesday, 25 July, 2005 was no more than something concocted by them whilst Mr Corbeski was on the three days of suspension. It does not help Mr Corbeski's position in this hearing that he has chopped and changed his version of the incident.

36 But ultimately, as Mr Hancock has indicated in his written submissions, the onus to prove the misconduct to justify dismissal falls on Mr Mead in this hearing [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84]. In his written submissions, Mr Mead has accepted that the onus of proof rests with him but has nevertheless emphasised that such proof relies on the civil standard - the balance of probabilities - and not the criminal standard - beyond reasonable doubt [Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 at p.6 and 7]. The position was confirmed by the Full Bench of the Commission [Cahill J - Vice President, Hill J and French C) in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz:

"…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362..."

37 Mr Mead has summarised the evidence before me in this hearing in his written submissions, viz: "...Specifically, we submit that the evidence accepted by the applicant in the proceedings demonstrates:

(i) there was an altercation between the applicant and Mr Von Borstel;

(ii) during the altercation, Mr Von Borstel threatened the applicant with physical violence;

(iii) as a result of the altercation the applicant was clearly in an agitated state: this agitated state caused the applicant to gesture for Mr Von Borstel to '...get fucked...'";

(iv) the movement of the crane tongs occurred after the verbal altercation between the applicant and Mr Von Borstel; and

(v) the movement of the crane tongs was a deliberate act on behalf of the applicant.

In respect of what the respondent identifies is the accepted evidence of the applicant, the critical piece of evidence, we contend, is the unequivocal confirmation from the applicant that the act of moving the crane tongs forward was an intentional act. The other pieces of evidence identified above, we contend, are relevant to the Commission's consideration of the motives for the crane movement.

In addition to the evidence that has been identified as uncontested by the applicant, there is also considerable evidence that has been led by the applicant that is either untenable or contradictory and we would submit that this fact weighs heavily against establishing that the misconduct did not occur. Specifically, we note that considerable focus has been placed upon the fact that the applicant's second language is English. We submit that the purpose of attempting to focus the Commission's attention on this fact is an attempt to dilute the admission made by the applicant on two separate occasions on the day of the incident in which the applicant stated that he intended to 'scare' Mr Von Borstel when he moved the crane tongs towards him..." 38 Mr Mead has produced a very logical version of the incident. But whilst I hold considerable suspicions concerning this incident and Mr Corbeski's less than positive role in it, I am obliged to act on more than mere suspicions in this hearing. In the absence of contrary evidence before me, I must primarily adopt the bulk of Mr Corbeski's version of the incident and, in particular, that he had asked both Mr Conte and Mr Von Borstel to move before he cross-travelled the crane and that the tongs of the crane stopped before the fence and did not come close enough to Mr Von Borstel to cause the safety concerns which BlueScope Steel assert. I would expect that there would at least be some swing in the tongs of the crane as the crane's movement stopped abruptly but it is doubtful to me that the crane would have gathered sufficient speed before it was stopped to swing. 39 Sams DP in his unreported decision of Wednesday, 14 December, 2005 in Perks and Petrovski v. New South Wales Department of Juvenile Justice [Matter Nos.IRC 3124 and 3220 of 2005] set out helpful principles for cases of summary dismissal for misconduct (at p.28). Mr Mead referred to those principles in his written submissions, viz:

"...In a case of summary dismissal for misconduct four questions usually arise for consideration by the Commission. Firstly, was the conduct alleged against the dismissed employee/s proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment by the employee/s? Fourthly, were other mitigating factors taken into account by the employer?..." 40 I understand that the incident on Friday, 21 July, 2006 was an isolated incident as far as Mr Corbeski is concerned. His employment record is otherwise generally satisfactory and his past employment record must have some impact on the decision I make in this case. Mr Owen described Mr Corbeski as both a good employee and a good crane driver. As Watson J in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 commented (at p.233) that:

"…Even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence…"

41 A single act of misconduct may be sufficient to justify summary dismissal, if it is serious enough and strikes at the heart of the contract of employment [Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 and the Homebush Abattoir Case (1966) AR 371 at p.374]. But the incident in question, when measured against Mr Corbeski's lengthy and otherwise satisfactory employment, whilst it was clearly wrong, does not, in my opinion, strike at the heart of his contract of employment. A single act of bad temper does not usually give rise to grounds for summary dismissal. The matter must be assessed according to the standards of men, not angels [Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]. 42 In the circumstances, and on the basis of such evidence as was before me, I conclude that Mr Corbeski's summary dismissal was unfair - "harsh", "unreasonable" or "unjust", to use the language of S.84(1) [Parker v. Capital Painters Pty Limited (1996) 68 IR 100 at p.104]. In saying that, I would not wish to undermine the proper emphasis which BlueScope Steel places on workplace safety with its "cardinal rules". Nor would I want the inference to be drawn that it is acceptable conduct for any employee to make a threat of violence against a fellow employee: it clearly is not. But, at the same time, I am not convinced that it is always an appropriate course that any safety breach by an employee should automatically lead to his dismissal - the most extreme disciplinary step available to an employer. To that extent, Mr Corbeski's summary dismissal was "harsh", ie an excessive penalty for him.

43 Reinstatement remains the primary remedy for an unfairly dismissed employee. The preference for reinstatement for an unfairly dismissed employee over monetary compensation has frequently been confirmed by the Commission. For instance, the Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) in Burge v. BHP Steel Pty Limited (2001) 105 IR 325 commented (at pp.345 and 346) that:

"…in considering the practicability of reinstatement, we are very much mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 (at pp.191 and 192) where their Honours observed that '…each case must be decided on its merits…' but that '…in most cases, the employment relationship is capable of withstanding some friction and doubts…'. As their Honours observed further, '…what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…' and '…if the employer is of even average fair-mindedness, (the problems) are likely to be short-lived…'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218 and Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and 68. We affirm the approach as appropriate in the present case…"

I see no impediment in this case to Mr Corbeski returning to work for BlueScope Steel.

44 In those circumstances, I propose to reinstate Mr Corbeski. I reject any monetary compensation during the period of his dismissal to his reinstatement in terms of S.89(3), however, because I have formed the view that his conduct was far from blameless over this incident. I therefore make the following orders:

(a) reinstate Mr Ilija Corbeski in employment in the position of overhead crane driver in terms of S.89(1); and

(b) take his employment not to have been broken by his dismissal in terms of S.89(4).

2. This order shall take effect on and from Thursday, 21 December, 2006.

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