Duggan v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1155

Industrial Relations Commission (NSW)|2005-09-19

CITATION: Duggan v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1155

APPLICANT Australian Workers' Union

PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited

termination of employment - claim of unfair dismissal - absenteeism - absences supported by medical certificates - warnings over work performance and attitude at work - fitness for work in steelworks - testing for alcohol and drugs - application dismissed CATCHWORDS:

Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Duggan v. BHP Steel - unreported CASES CITED: Federated Municipal and Shire Council Employees' Union of Australia v. Sydney City Council (1987) 23 IR 454 Queensland Sick Pay Case (1972) AILR Rep.414 Richey v. Bartter Enterprises Pty Limited [2001] NSWIRComm 346

APPLICANT Dave Hancock Australian Workers' Union LEGAL REPRESENTATIVES:

RESPONDENT Aaron Dearden Blake Dawson Waldron

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

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

1 Mr Roger Duggan had been employed as an operator with Bluescope Steel (AIS) Pty Limited in its packaging products department under the terms of the BlueScope Steel (AIS) Pty Limited - Port Kembla Steelworks Award. He has been employed at the Port Kembla steelworks for approximately thirteen years. He is a member of the Australian Workers' Union which, when his services were terminated on Tuesday, 10 May, 2005 lodged an application on his behalf under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. In the Part 6 application to AWU has primarily sought Mr Duggan's reinstatement.

2 The matter was allocated to me and I set it down for a preliminary hearing on Tuesday, 31 May, 2005 and a mention on Friday, 3 June, 2005 (in the Commission's premises at 90 Crown Street, Wollongong). Conciliation failed to settle the matter. I programmed it for hearing. Originally, that hearing was scheduled for Monday, 5 September, 2005 and Tuesday, 6 September, 2005 (in Wollongong). However, at the request of the AWU, I vacated that hearing and rescheduled it for Monday, 19 September, 2005 and Tuesday, 20 September, 2005 (also in Wollongong).

3 Mr Hancock represented Mr Duggan and the AWU in the hearing, calling him to give evidence. He also called Mr Steven Chalker, a team leader, as a witness in the hearing. Mr Ivan Balajic, a machine operator had prepared a written statement but was not available to give evidence and BlueScope Steel opposed his written statement being admitted into evidence without the right to cross-examine him. Mr Dearden represented BlueScope Steel in the hearing. He called Mr Geoffrey Ellison, formerly the superintendent in the packaging products business, and Mr Brian Rooney, who presently occupies that position.

4 There is some history to this matter. The AWU had lodged two separate notifications under S.130 concerning Mr Duggan prior to his dismissal. On Monday, 14 February, 2005 the AWU lodged the first S.130 notification over a suspension and a final warning given to Mr Duggan. An internal appeal against Mr Duggan's suspension had been taken by Mr Duggan. It was not successful. The S.130 notification was allocated to me and it was set down for a conference on Tuesday, 15 February, 2005 (in Wollongong). Conciliation failed to settle the matter. I programmed it for arbitration, issuing the certificate of attempted conciliation required by S.135 and lodging it in the prescribed manner. But the hearing of the matter did not proceed. A second S.130 notification by the AWU intruded.

5 On Thursday, 5 May, 2005 the AWU had lodged that second S.130 notification, this time over the threatened dismissal of Mr Duggan. I listed the second S.130 notification (together with the first S.130 notification) for conference on Monday, 9 May, 2005. BlueScope Steel had written to Mr Duggan on Thursday, 5 May, 2005 proposing the acceptance by him of certain conditions as a prerequisite to his continued employment. Mr Duggan's failure to agree to those conditions on his employment was to result in his dismissal. Mr Duggan indicated through the AWU that he rejected those conditions for his continued employment and BlueScope Steel rejected proposals he has advanced as a compromise. BlueScope Steel was prepared to leave the offer it had made to Mr Duggan in its letter of Thursday, 5 May, 2005 on the table for 24 hours for Mr Duggan to reconsider his position. He did not do so. His dismissal followed.

6 Events had clearly overtaken the hearing for the first S.130 notification by the AWU, confined as it was to a suspension and warning notice. Also the second S.130 notification was also otiose. It is replaced by the Part 6 application by the AWU which is now the subject of these current arbitral proceedings. The two S.130 notifications were brought to a conclusion by me on Monday, 9 May, 2005 as redundant files.

7 Mr Duggan's employment with BlueScope Steel has been eventful and he has received frequent warnings over his work performance and attitude - his refusal of duties and failure to wear proper safety equipment. On Tuesday, 12 March, 2002 Mr Duggan had also received a memorandum, described as a final warning which raised concerns over a number of issues, some of which Mr Duggan challenged. The memorandum concluded that:

"…should any of these actions reoccur, you are advised that you face disciplinary action. This could involve suspension or dismissal…"

8 Mr Duggan was given another letter dated Thursday, 27 June, 2002, also described as a final warning, over his:

"…poor performance and ongoing behavioural issue that have been unacceptable to the company over a period of time. If such behaviour was to continue, the termination of your employment is inevitable…" He received a two day suspension at that time, was required to attend monthly random drug testing for a period of six months in accordance with an established drug and alcohol policy.

9 Mr Duggan had at that time been working on the electrolitic tinning line and the narrow cold rolling slitting line. Notwithstanding the problems with Mr Duggan, Mr Ellison was prepared to offer him a vacant position on the coil preparation lines. Mr Ellison recorded in a written statement that:

"...given Mr Duggan's reputation and history across the plant and the problems the company had with him...I thought he may improve his overall performance if he got a position in the CPL. The position involved 12 hour shifts. It was an extremely attractive position which many people wanted because the four day shift pattern provided for four day weekends. I thought it was an excellent opportunity for Mr Duggan to move somewhere new and attempt to rectify his performance deficiencies..."

When Mr Ellison offered the position to Mr Duggan he recalls saying to him:

"You're on a really short plank now. If you screw this up, there's nowhere else to go."

10 And when Mr Duggan transferred over, he did so on a contract with conditions attached: accepting the working arrangements for an annualised salary position, compliance with safety and operational requirements, the wearing of appropriate safety clothing and equipment, satisfying timekeeping requirement, obeying reasonable instructions and treating all crew members and supervisors with respect. Those were hardly onerous requirements and something I would expect of any employee. However, Mr Ellison indicated in his evidence that those conditions were not ordinarily provided for employees transferring over to work. They were directed to address deficiencies BlueScope Steel management had already identified in Mr Duggan's performance.

11 On Saturday, 4 January, 2003 Mr Duggan's services were terminated. He had been absent from work on Thursday, 2 January, 2003 and Friday, 3 January, 2003 with a viral infection in his throat. His absence from work was supported by a medical certificate. However, Mr Ellison was shown a copy of a local newspaper (The Illawarra Mercury) for Friday, 3 January, 2003 which recorded that he had played in a bowls tournament (the South Pacific Bowls Carnival), reaching the quarterfinals in the afternoon of Thursday, 2 January, 2003. Mr Duggan had been skip, ie team leader.

12 The AWU lodged a Part 6 application on behalf of Mr Duggan and the matter was allocated to me. In my unreported decision of Tuesday, 27 May, 2003 in Duggan v. BHP Steel [Matter No.IRC 243 of 2003], in the absence of anything to challenge the medical certificate Mr Duggan provided, I reinstated Mr Duggan, commenting (at p.9) that:

"...without very persuasive evidence to support an allegation that Mr Duggan was not really ill on Thursday, 2 January, 2003 and Friday, 3 January, 2003, I believe that I must accept the claim made...in this hearing that Mr Duggan's absence from work was legitimate sick leave and that he suffered from the throat infection that he claimed. Whilst BHP may have held suspicions that, in the light of Mr Duggan's sporting activities on Thursday, 2 January, 2003, his absence from work was unjustified, the medical certificate that he had for his absences on Thursday, 2 January, 2003 and Friday, 3 January, 2003 - and which he provided to BHP management - clearly confirms his entitlement to be absent from work. In my view, the medical certificate should be accepted as prima facie evidence that Mr Duggan was unfit for work over the period in question... Furthermore, it has to be conceded that two games of bowls is hardly as strenuous as no doubt the work which Mr Duggan ordinarily performed for BHP..."

"...Mr Duggan must appreciate that his reinstatement means returning him to the position he formerly occupied with BHP on the strict conditions which prevailed for him and the final warning. His continued employment with BHP will depend upon his attitude and conduct at work..."

And Mr Duggan's frequent absences from work continued to cause concern to BlueScope Steel. So too did his general attitude at work, culminating in a letter from Mr Ellison dated Monday, 31 January, 2005, constituting a further final warning.

13 That letter recorded the many days which Mr Duggan had been absent from work for various reasons - gout, injuries to his toe, an upper respiratory tract infection, gastric reflux, a middle ear infection, anxiety and to accompany his partner for medical treatment. The period under review commenced on Tuesday, 9 March, 2004 which Mr Ellison conceded in his evidence was an arbitrary date. The letter set out the numerous days when Mr Duggan was absent from that date - Tuesday, 9 March, 2004, Tuesday, 27 April, 2004, Tuesday, 4 May, 2004, Friday, 28 May, 2004, Saturday, 29 May, 2004, Saturday, 5 June, 2004, Tuesday, 29 June, 2004, Wednesday, 30 June, 2004, Saturday, 17 July, 2004, Sunday, 18 July, 2004, Monday, 19 July, 2004, Thursday, 5 August, 2004, Thursday, 9 September, 2004, Friday, 10 September, 2004, Friday, 17 September, 2004, Tuesday, 28 September, 2004, Wednesday, 22 December, 2004, Saturday, 8 January, 2005, Sunday, 9 January, 2005 and Monday, 10 January, 2005.

14 Mr Ellison's letter of Monday, 31 January, 2005 commented as follows:

"...Your absenteeism is becoming a concern and although the company has endeavoured to provide you with counselling and feedback, a trend of absenteeism continues... You are well aware of the procedures, policies and standards required by the business. A final written warning will be placed in your file.

Whilst the issue leading to this discussion is related to absenteeism, there is an unsatisfactory pattern of behaviour with regard to attendance and general compliance with company policies. Any further breaches of business standards or absenteeism policy will place your employment with this company in jeopardy..."

15 Mr Duggan appealed against that final warning to Mr Kevin Lewry, the vice president of the packaging products department, challenging some of the days that had been recorded against him and pointing out that his absences from work were supported in each case by medical certificates. The appeal was dismissed by Mr Lewry in a letter dated Friday, 4 February, 2005. Whilst further investigation had revealed an error in that one day (Monday, 19 July, 2004) had been recorded incorrectly as a day in which Mr Duggan had been absent, three other days of absence (Monday, 5 January, 2004, Tuesday, 6 January, 2004 and Wednesday, 10 March, 2004) had not been brought into account. The formal response to Mr Duggan's appeal recorded that:

"...You will note over the last year your total absences have reached 19 shifts...Your absences and overall performance continues to decline. If this pattern of behaviour continues, you may be placing your employment with this company in jeopardy..."

Actually, as Mr Hancock suggested in the proceedings, the absences on Monday, 5 January, 2004 and Tuesday, 6 January, 2004 should not have been brought into account. As the words in Mr Lewry's letter which I have emphasised above indicate, he was confined to the year ending Friday, 4 February, 2005 when he wrote the letter and therefore Monday, 5 January, 2004 and Tuesday, 6 January, 2004 fell outside that twelve month period. 16 A further S.130 notification by the AWU brought the matter before me but, as I indicated earlier in this decision, the arbitration of the matter was aborted and further developments led to Mr Duggan's dismissal and the current Part 6 proceedings. Mr Duggan continues to challenge the warning from Mr Ellison on Monday, 31 January, 2005, however. The fact that the S.130 notification that brought the matter to me has been disposed of does not mean that his challenge to that warning notice is lost - simply that, in the light of subsequent developments, ie Mr Duggan's dismissal, it becomes less significant.

The Dismissal 17 On Friday, 22 April, 2005, Saturday, 23 April, 2005 and Sunday, 24 April, 2005 Mr Duggan again did not attend work. He had contacted a middle ear infection. He had attended a medical practitioner and obtained a medical certificate excusing him from attendance at work for two days. He arrived at work on Sunday, 24 April, 2005 but, when his foreman saw that he was ill, he sent him to the ambulance station. The nurse sent him home and transport was arranged for him. He visited his doctor again on Sunday, 24 April, 2005 and was provided with a further medical certificate excusing him from attending work for that day. He was rostered off on Monday, 25 April, 2005 and was not due to resume work until Friday, 29 April, 2005.

18 Mr Ellison met with Mr Duggan on Friday, 29 April, 2005. Mr Hancock also attended the meeting. Mr Ellison recorded in his written statement the gist of that meeting, viz:

"...I put the company's concern to Mr Duggan. Those concerns included the fact that Mr Duggan had been absent on 14 days in the previous 12 month period - from Saturday, 1 May, 2004 to Saturday, 30 April, 2005. I explained that under the BlueScope Steel Award Mr Duggan is entitled to 8 days sick leave a year. I told Mr Duggan that his absences for the previous 12 months displayed a pattern of the absences being adjacent to rostered days off... I investigated Mr Duggan's absences in the last 12 months and discovered they were comparatively greater than in recent years...

I was also aware that, as Mr Duggan works 4 shifts on and 4 shifts off, his 13 sick days had meant that every 4 weeks he only works a 3 day week. This is unacceptable. I explained to Mr Duggan that his absences impacted upon his crew because other crew members had to cover his absence from the callout roster. I told him that this placed undue burden on employees and creates conflict in the workplace between crew members when someone often takes sick leave, as Mr Duggan had done...

I told Mr Duggan that the company was seriously considering terminating his employment because of his continued failure to abide by company policy. This failure was of particular concern, given the fact that Mr Duggan was on notice over the previous 12 months about these aspects of his work performance and was aware he needed to improve otherwise his employment would be jeopardised..."

19 Notwithstanding Mr Ellison's assertion that Mr Duggan's frequent absences from work were impacting on the other employees, Mr Chalker believes that not to have been the case. Mr Hancock has emphasised in the proceedings the new concepts being developed for the coil preparation line whereby work is arranged through teams and those teams retain responsibility to cover absences of employees within those teams. Mr Hancock indicates that absences from work is therefore essentially a matter for the teams. 20 But, as Mr Rooney suggested in his submissions, such a concept still does not remove the overall responsibility of BlueScope management over all staffing issues. I am satisfied that any employee who was frequently absent from his shifts in steelworks operations would clearly place an unfair burden on the staff that remained. It goes without saying that all employees are vital to the steelworks - or else they would not be employed there in the first place - and any staff absent on unexpected leave would obviously be missed. The legitimate requirements of the steelworks business must come first.

21 Mr Ellison had formed the view that Mr Duggan was not seriously taking up the opportunity for counselling with Mr Neil Harvey, a consulting psychologist engaged by BlueScope Steel, which had been held out to him in the past. Mr Ellison believed that Mr Duggan only attended such counselling to avoid disciplinary action and to appease BlueScope Steel management. Following the meeting on Friday, 29 April, 2005, according to Mr Ellison, Mr Duggan agreed that he would both attend a medical practitioner nominated by BlueScope Steel and undertake a drug and alcohol test. Mr Duggan refuted that he had at that time volunteered to take a drug and alcohol test, although he was prepared to attend a medical practitioner.

22 Mr Duggan did attend the medical practitioner but he refused to take the drug and alcohol test, apparently on advice from the AWU. Essentially, the established drug and alcohol policy for BlueScope Steel ordinarily comes into operation where there has been a "significant incident" involving the employee which warrants such testing. Mr Duggan and the AWU were relying on the fact that there had been no "significant incident" on which to demand drug and alcohol testing. But the request that Mr Duggan attend drug and alcohol testing was independent of the established drug and alcohol policy: it was a specific condition for Mr Duggan's continued employment.

23 At that point Mr Ellison set out in a letter dated Thursday, 5 May, 2005 the conditions under which Mr Duggan would be continued in employment which I briefly mentioned earlier in this decision, viz:

(i) acknowledgement of his unsatisfactory performance over the last twelve months;

(ii) commitment to comply with BlueScope Steel policies and procedures;

(iii) acceptance of the final warning on his employment record (and the consequent abandonment of the earlier S.130 notification over that final warning);

(iv) appreciation of the fact that any further incidents of poor performance over the next twelve months would lead to his dismissal; and

(v) agreement to undergo random drug and alcohol testing for six months.

Mr Duggan was informed in a meeting Mr Ellison held with him on Thursday, 5 May, 2005 that he would be permitted to take a further four days off work on pay to ensure his fitness to resume work. Mr Ellison also informed Mr Duggan that his continued employment in BlueScope Steel was dependent upon his acknowledgement of those conditions and his compliance with them.

24 Mr Duggan refused to sign the letter. He also initially continued to decline to take the drug and alcohol tests but then agreed to do so - reluctantly and under pressure, he asserts. He was escorted to the ambulance station. His tests proved positive for cannabis. Mr Duggan was sent home by taxi cab and his sample was forwarded to a toxicologist for a more comprehensive evaluation. Ultimately, the more detailed test by the toxicologist was negative. A further meeting with Mr Duggan was aborted.

25 The AWU had lodged its S.130 notification over the threatened dismissal of Mr Duggan and the matter came before me on Monday, 9 May, 2005 (in Wollongong). I recommended that BlueScope Steel extend the time for Mr Duggan to consider his position until Tuesday, 10 May, 2005 and BlueScope Steel agreed to do so. Mr Duggan continued to refuse to sign the letter or accept his employment on the conditions set down and he was informed that his employment was terminated.

26 BlueScope Steel has an established policy on how to address absenteeism in the workplace which Mr Ellison described in his written statement, viz:

"...Where an employee is regularly absent from work then they are managed under the attendance policy whereby the supervisor or manager counsels the employee about their level of absenteeism. To ensure that all employees are treated consistently, the company uses an attendance matrix to measure attendance and to indicate to supervisors and managers when formal disciplinary steps need to be taken against an employee with too many absences..."

The BlueScope Steel policy provides as guidelines certain directions to supervisors. It states as follows:

"...All employees must be approached (for support, empathy, counselling or disciplinary action) after every absence..."

Mr Hancock has suggested in the proceedings that, with respect to Mr Duggan's absences on Saturday, 8 January, 2005, Sunday, 9 January, 2005 and Monday, 10 January, 2005, that counselling never took place and that the matter only came to be addressed by Mr Ellison much later - Monday, 31 January, 2005 - when it was brought to his attention after his return for a period of annual leave.

27 A series of steps is proposed to address excessive absences from work. A different path is provided depending on whether or not the employee has a satisfactory explanation or evidence, ie a medical certificate, to support his absence from work. However, ultimately in all cases those steps pass through discussions with a supervisor, a formal interview, a written warning, a further warning, a final written warning to a dismissal. In the case of an absence without explanation or a medical certificate, the second warning is accompanied by a two day suspension and the final written warning is accompanied by a five day suspension. But the fact that an employee has a satisfactory explanation or a medical certificate to support a particular absence from work does not necessarily mean that he will be immune from disciplinary action - including dismissal, as was the case with Mr Duggan. 28 Sick leave, of course, is provided specifically for the purpose of providing protection to employees against the hardship associated with lack of earnings during periods of illness. It is available to assist workers who are sick and not otherwise [the Queensland Sick Pay Case (1972) AILR Rep.414]. And an employee who takes excessive sick leave without satisfactory justification or explanation may provide grounds for his dismissal. But Mr Duggan's absences are invariably supported by a medical certificates. He recorded in a written statement that:

"...I dispute the company's claim regarding absenteeism. Employees are entitled to days off for genuine reasons and for sick leave for genuine ailments. I have no unexplained absences..."

29 I appreciate that BlueScope Steel management is anxious to lay down objective guidelines for supervisors to improve work attendance which I understand has historically been a problem in the steelworks. But I have some reservation that the question of excessive absenteeism is effectively addressed by strict general guidelines of the type described by the BlueScope Steel policy. The fact is that some employees genuinely suffer ill health whilst other employees do not. I do not believe that it is appropriate to penalise some employees further simply because they are not well. And it raises occupational health and safety concerns if employees felt obliged to present themselves for work whilst they were sick.

30 I believe that employees with excessive absenteeism who come to notice should not be evaluated according to a strict matrix but should be considered in isolation in the light of all the facts concerning their employment. This is one area where, in my view, a more flexible approach is appropriate and I do not consider that the BlueScope Steel policy on absenteeism, as it has been described to me in this hearing and as it appears to me to be implemented across the steelworks, provides that level of flexibility. It is inevitable that unfairness will result from the too rigorous approach to this issue.

31 But has that occurred with Mr Duggan? Mr Dearden does not believe that Mr Duggan has been treated unfairly and neither do I. Mr Rooney commented in the written statement which formed the basis of his evidence in the hearing:

"...Mr Duggan is not entitled to the number of absences he has taken. Mr Duggan is outside the limits of our attendance policy and has been afforded many opportunities to resolve the problem. Mr Duggan has the worst attendance record in the CPL. Between Saturday, 15 May, 2004 and Saturday, 14 May, 2005 the average CPL absences were 4.3 days. In the same period, Mr Duggan was absent for 17 days..."

32 The amount of time which Mr Duggan has taken off work does suggest to me that he is unfit for work in the steelworks. That work is often arduous and ordinarily conducted in uncomfortable conditions. It is not work for a fragile constitution. Mr Duggan has conceded that he occasionally smoked marijuana socially and, although he is a more moderate in his consumption of alcohol than had formerly been the case, he still consumes alcohol to excess, in my opinion. As Mr Hancock submitted in the hearing, what an employee does in his own time is his own business, but insofar as it affects his health, it does impact on his performance at work - and places an unnecessary burden on the other employees.

33 Mr Dearden has not thrown into any real challenge the medical certificates which Mr Duggan has produced and I believe that I am obliged to accept them as prima facie evidence that on the occasions Mr Duggan was absent from work he was genuinely ill. Mr Rooney indicated in the written statement that provided the basis of his evidence in the hearing that:

"...at no stage have I disputed the legitimacy of the doctor's certificates presented by Mr Duggan for his numerous absences..."

34 However, I note that one of the medical certificates provided to cover an absence from work on Tuesday, 9 March, 2005 was, in fact, dated Wednesday, 24 March, 2004. (The date recorded on the medical certificate was actually 2005 but I take that to be an error). Backdated medical certificates of that nature are contrary to accepted medical practice and immediately raise doubts concerning their legitimacy [Federated Municipal and Shire Council Employees' Union of Australia v. Sydney City Council (1987) 23 IR 454 at pp.457 and 458]. Also, as Mr Ellison deduced, there is a suspicious correlation between days when Mr Duggan took time off work and days adjacent to rostered days off.

35 Furthermore, absences from work on Saturday, 17 July, 2004 and Sunday, 18 July, 2004 were supported by a medical certificate describing Mr Duggan's anxiety state at the time, no doubt with respect to the substantial restructuring of the BlueScope Steel operations and the fact that some employees were to be regarded as surplus to requirements. Mr Rooney indicated in his evidence that the manning of the coil preparation lines has been reduced as part of current restructuring of the operations from 32 men to 16 employees. That medical certificate sits oddly with the prevailing circumstances concerning Mr Duggan, who had been informed that his employment was, in fact, continuing on an interim basis at least.

36 In any event, the evidence before me in this hearing suggests to me that Mr Duggan has been skating on thin ice for some time. Mr Ellison indicated that his dismissal was based on his overall performance not strictly his absenteeism. As Cook J of the former State Industrial Commission indicated in Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Cook J at p.27:

"…when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees...he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement…"

It is in that light that Mr Duggan's dismissal should be evaluated and his past employment record does not assist him in that respect. 37 I have reached the conclusion that there are no grounds for my intervention in support of Mr Duggan in this hearing. I have taken that view not without some reservations, however. Among other authorities, Mr Hancock referred to the unreported ex tempore decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) in Richey v. Bartter Enterprises Pty Limited [Matter No.IRC 5499 of 2001] where (at p.2) the following comment was made:

"...It is trite to observe that where an employee is dismissed for cause, and on examination it is established that the employee has done nothing wrong, there will then be a prima facie situation of unreasonable, unjust or harsh treatment..."

38 On the evidence before me in this hearing, Mr Duggan has a legitimate reason to be absent from work on Friday, 22 April, 2005, Saturday, 23 April, 2005 and Sunday, 24 April, 2005 - and apparently on other occasions for that matter. But when those absences are considered against his overall attendance record and his work performance generally, it justifies his dismissal, in my opinion. It is a case where the cumulative effect of his poor attendance and work performance produces a result which, if each incident were looked at in isolation, it may not have produced such an outcome. For an employee with Mr Duggan's colourful employment record, each separate incident cannot continue to be looked at in isolation. This is a case where the whole picture of Mr Duggan's employment with BlueScope Steel is greater than the sum of its individual parts.

39 I therefore see no justification on this occasion for my intervention in support of Mr Duggan in this hearing and I decline to do so. I dismiss the Part 6 application the AWU has lodged on his behalf.

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.

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