Graham v. BlueScope Steel Limited [2008] NSWIRComm 1018

Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 Re Barrett and the Crown Street Womens' Hospital (1947) AR 565 Bostik (Australia) Pty Limited v. Gorgevski (No.1) (1992) 36 FLR 20 Briginshaw v. Briginshaw (1938) 60 CLR 336 Busways v. Johnson (1994) 55 IR 255 Cevenini v. Bowport Allroads Pty Limited - unreported Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 M v. M (1988) 63 ALJR 108 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 CASES CITED: Miller v. Minister for Pensions (1947) 2 All ER 372 Nowra Bomaderry Leagues Club Case (1986) 15 IR 463 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Porter v. Kolodzeij (1962) VR 75 Scott v. London and Katherine's Docks Company (1865) 3 H & C 596 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Tipping's Case (1957) AR 273 Turner v. First Fleet Logistics - unreported Vouzas v. Askgun Pty Limited - unreported Wang v. Crestell Industries Pty Limited (19907) 73 IR 454

APPLICANT Branko Gorgievski Australian Workers Union LEGAL REPRESENTATIVES:

RESPONDENT Aaron Dearden Duncan Cotterill Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

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 dismissal of an employee of BlueScope Steel Limited

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

1 Mr Greg Graham was employed as a crane driver in the metal coating lines of BlueScope Steel Limited in Port Kembla under the terms of the BlueScope Steel Limited, Springhill and CRM Employees Award. His services were terminated on Wednesday, 3 October, 2007 after 31 years of employment for an alleged deliberate breach of safety requirements in the operation of an overhead crane. Mr Graham is a member of the Australian Workers Union which lodged a notification under S.130 of the 1996 Industrial Relations Act on his behalf. Attached to the S.130 notification the AWU also provided an application on behalf of Mr Graham pursuant to Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] and a referral agreement in terms of S.146A (and Practice Direction No.18), which has subsequently been signed by both parties in the following terms:

"Employee at metal coating lines dismissed for alleged breach of safety."

The S.146A referral agreement is provided in compliance with the protocol developed between BlueScope Steel and the trade unions representing its employees under which individual industrial disputes are brought before the Commission for conciliation and, if necessary, arbitration.

2 It is my view that a combination of Part 6 and Ss.130 and 146A is actually required to provide the jurisdictional basis for the AWU's claim on behalf of Mr Graham for his reinstatement in employment. By virtue of S.146A(2):

"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."

Whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)], it is my understanding that it lacks the necessary ingredient on its own to make it an industrial dispute which, to my mind, always denotes a number of employees acting collectively through their trade union.

3 The S.130 notification lodged by the AWU is therefore required. As I indicated in my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 3430 and 3487 of 2006 at pp.3 to 5], a S.130 notification establishes that there is an industrial dispute, a Part 6 applications provides the full range of remedies to Mr Graham (and confines him by the operation of S.90 not to proceed elsewhere for a remedy over his dismissal); and the S.146A reference confirms my jurisdiction to determine the matter by arbitration. Without a S.146A referral agreement, since BlueScope Steel is unarguably a trading corporation for the purposes of S.51(xx) of the Commonwealth Constitution - and thereby currently bound by the provisions of the 2005 Federal Workplace Relations Amendment (Work Choices) Act - most issues in dispute between BlueScope Steel and its employees may not effectively proceed before the State Commission beyond conciliation [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1].

4 The matter was allocated to me and I set it down for a conference on Tuesday, 16 October, 2007. Those proceedings, and all subsequent proceedings, were convened in the Commission's premises at 90 Crown Street, Wollongong. Conciliation failed to settle the matter. I programmed it for arbitration on Tuesday, 5 February, 2008 and Tuesday, 12 February, 2008. Mr Gorgievski represented Mr Graham and the AWU in the proceedings, calling him to give evidence in the hearing. He also called Mr Stewart Kemp, a former employee of BlueScope Steel, as a witness in the hearing. Mr Kemp was engaged as an operator by BlueScope Steel until his resignation on Thursday, 18 October, 2007 to take up skydiving professionally. Mr Dearden represented BlueScope Steel in the hearing. He called two witnesses to give evidence in the hearing: Mr Mariano (Matt) Matarranz, the MCL operations manager, and Mr Stephen Tilden, a shift team leader (A Crew) in the MCL.

5 In fact, at the commencement of the hearing of the matter on Tuesday, 5 February, 2008, I discovered that by an oversight the Part 6 application provided by the AWU on behalf of Mr Graham did not contain the undertaking required by S.90 precluding him from pursuing any remedy over his dismissal elsewhere. The parties appreciate that the S.90 undertaking is crucial for any Part 6 application to proceed to arbitration. However, in giving his evidence, Mr Graham also gave the necessary commitment that he would confine any claim arising out of his dismissal to these proceedings alone and that was accepted as sufficient by Mr Dearden. I was prepared to proceed to arbitration on that basis.

6 Mr Graham commenced employment in the Port Kembla steelworks in late 1978 as a line operator in the MCL. He worked as a crane chaser and keyboard operator until 1992 when he was appointed as a crane driver. For a period of time he occupied the position of chairman of the occupational health and safety committee. He appears to have a relatively unblemished record of employment with BlueScope Steel, particularly as far as workplace safety is concerned. However, Mr Graham claims that his relationship with other members of his crew has been strained at times to the extent that his assertion is that some other employee had "...set him up...". Mr Kemp asserted in the written statement which accompanied his evidence that there was a "history" involving Mr Graham and other employees, based in part on Mr Graham's refusal to support the other employees in their complaints and industrial action against MCL management in the past and his resignation from the AWU for a period of time. Apparently, there have been occasions in the past when Mr Graham has worked when the other employees have taken strike action, making him unpopular with his fellow workmates.

"...I have actually heard other operators say that Mr Graham will get in trouble one day and they would not support him..."

Mr Kemp did not provide any other details to back up that allegation. Nor did he identify the employees who had allegedly made those comments. Since any such employee was not available for cross-examination - or even identified - Mr Dearden challenged Mr Kemp's evidence on that issue as hearsay. Mr Kemp's evidence on that issue can be taken no further than such statements were actually made to him by unnamed staff members at some unidentified time [ Subramaniam v. Public Prosecutor (1956) 1 WLR 965]. That does not take the evidence very far and it must have little weight in this hearing.

8 The alleged breach of safety which led to Mr Graham's dismissal arose from his operation of an overhead crane in the MCL [No.66] on night shift on Saturday, 22 September, 2007. The crane is controlled from a cabin by a device which has to me the appearance of a large car gear stick lever. From it the tongs on the overhead crane are controlled by manually lifting a safety button situated under the handle of the lever. The safety latch regulates the rotation and engagement of the tongs carrying steel coils throughout the MCL. It is a "deadman" operation and the button of the safety latch will automatically fall down the shaft of the crane controller when it is not in use. It is designed to ensure that the tongs on the crane will not rotate or disengage the coils when they are being moved, thereby preventing the coils from falling to the ground. It is the allegation of BlueScope Steel that Mr Graham disengaged the safety latch and thereby overrode the "deadman" operations, apparently speeding up the crane operations. That is a serious allegation but it is strenuously denied by Mr Graham.

9 On Saturday, 22 September, 2007 Mr Graham was the crane driver on night shift, commencing at 6.30pm. He agreed to a request from Mr Geoff Channing that he relieve him on the No.66 crane at approximately 3.00am on Sunday, 23 September, 2007. Mr Channing's shift did not actually end until 6.30am. Mr Graham recorded in the written statement which accompanied his evidence that when he climbed into the crane at 3.00am:

"...I noticed a piece of hosing with a bit of rope lying on the floor (of the cabin). I picked it up and threw it onto the seat behind me. There were also some papers on the seat. I didn't give it another thought..."

Mr Graham finished his shift at 6.30am on Sunday, 23 September, 2007 and was relieved by Mr Brian Kynes, the day shift crane driver.

10 Mr Kynes observed that the hosing had now been wrapped around the shaft of the crane controller in such a manner that it held up the safety button, thereby disengaging the "deadman" operations of the tong control. It appears that Mr Kynes formed the view that the hosing was put in place around the shaft as a temporary, but not particularly satisfactory, repair to the crane control lever - a "bodgie repair job". In any event, he did not telephone Mr Tilden about it until approximately 7.00am, telling him:

"There's been a bodgie repair job on the tong controller. It's been here since the start of the shift and I've logged it on the crane pre-start check sheet. I think you need to come and see it."

11 Mr Tilden did not regard the matter to be as serious as, in fact, was the situation. He did not attend the crane cabin with Mr Kynes until approximately 8.00am. Until that time the crane remained in operation with the device in place. The operation of the crane in that manner for approximately one hour concerns me. I would have thought that Mr Kyle would have had sufficient experience as a crane driver to refrained from operating the crane with the device attached until the position had been clarified. And Mr Tilden's delay in attending to the matter is also of concern. Even if the device on the shaft of the crane controller was no more than a "...bodgie repair job...", as Mr Kyle described it, Mr Tilden should have raised the matter immediately with the maintenance staff and should have told Mr Kyle not to operate the crane in the meantime.

12 In any event, ultimately Mr Tilden's investigations revealed that the crane controller was intact and fully functional. But because the hosing had overridden a safety mechanism on the crane, Mr Tilden formed the view, accurately in my opinion, that there had been a serious safety incident. He reported it to Mr Matarranz who directed him to further investigate the matter, obtaining a statement from Mr Kynes and, upon discovering that Mr Graham was the crane operator for the previous shift, arranging for him to be interviewed on his next shift.

13 Mr Matarranz also proposed to interview Mr Channing and he did so on Monday, 24 September, 2007. Mr Matarranz recorded in the written statement which formed the basis of his evidence that:

"...from the meeting I was able to ascertain that Mr Channing had completed a pre-check of the crane at the start of nightshift on Saturday, 22 September, 2007 and had not recorded finding any device attached to the controller. Mr Channing denied knowing anything about the device and said he had gone home at 3.15am and handed the crane over to Mr Graham... During the interview Mr Channing presented well and gave me straight answers to the questions I asked. Mr Channing admitted, without hesitation, that he had gone home at 3.00am when he was rostered to work until 6.30am. Whilst disappointed at his going home early, I was impressed that Mr Channing did not try to hide the fact that he had done something wrong. I formed the impression that he was telling the truth that he knew nothing about the device..."

14 By comparison, Mr Matarranz noted that Mr Graham had asserted to the investigators over the incident that he had relieved Mr Channing on the No.66 crane at from 5.00am to 6.00am. When Mr Matarranz interviewed Mr Graham again the conflict in what he had said and what had been said by Mr Channing was raised with him, viz:

"...I started the meeting by telling Mr Graham that I wanted him to give me honest answers during the interview. Mr Graham agreed to do this. Mr Graham admitted knowing about the device but claimed it had been on the floor of the crane cabin between 3.00am and 4.00am. However, Mr Graham then again claimed the Mr Channing had operated the crane from 5.00am to 6.00am. When I told Mr Graham that Mr Channing had admitted going home at 3.15am Mr Graham looked shocked. Mr Graham's demeanour changed and he appeared agitated and kept moving in his seat. He also stopped making eye contact with me and looked very uncomfortable. At that stage, I suggested the meeting take a break so Mr Graham could take advice from his union delegate.

When the meeting resumed Mr Graham claimed that he had been set up. I asked Mr Graham why he thought he may have been set up. He claimed it was retribution for working when other employees took strike action. I asked Mr Graham to name names of employees he suspected may want to '...pay him back...', but he refused..."

15 Mr Graham may have been less than honest on the time for his change of shifts with Mr Channing. Mr Dearden asserted that Mr Graham's credibility as a witness was cast into doubt as a result. I see Mr Graham's comments to Mr Matarranz in that respect as more in the nature of covering up for Mr Channing. To my mind, it is not something over which a great deal actually turns in this hearing. 16 It remains Mr Graham's assertion in this hearing that some person or persons in the MCL had such a grudge against him that they would be prepared to sabotage the crane operations, making it unsafe for the employees themselves since any accident that occurred as a result of tampering with the crane controller would inevitably involve employees working in the MCL under the coils being transported. That is a most serious allegation to make and I should treat it very seriously indeed. Mr Graham has himself acknowledged the seriousness of the offence alleged against him but he emphatically denies that he committed that offence, asking rhetorically in his evidence in this hearing:

"Why would I throw away 30 years for such a stupid thing?"

In any event, Mr Matarranz formed the impression that Mr Graham was not being truthful in all of his answers to questions being put to him in the interview and he rejected Mr Graham's allegation that he had been "...set up...".

17 Mr Graham was again interviewed by Mr Matarranz on Wednesday, 26 September, 2007 to give him the opportunity to provide further information to support his position. During that meeting Mr Graham claimed that the entry end operators of the MCL held him responsible for the dismissal of another employee two years earlier. Mr Matarranz recorded in his written statement that he did not believe that claim, viz:

"...Firstly, I do not believe our employees would set each other up. Secondly, if employees blamed Mr Graham for (the dismissal of the employee), which I doubted, then they had over two years to '...set him up...' (to use Mr Graham's language). Thirdly, Mr Graham had never filed any complaints or raised any concerns about the attitude of other employees to him..."

18 Mr Matarranz concluded that Mr Graham had installed the device on the crane controller and that it was a deliberate act on his part which justified his summary dismissal. On Wednesday, 3 October, 2007 Mr Graham was summarily dismissed, receiving the following letter to that effect:

"...This is to confirm that your employment with BlueScope Steel has been terminated without notice as from 4.30pm on Wednesday, 3 October, 2007 due to your serious misconduct. Having investigated the facts and circumstances of this incident, including interviews with yourself at which time you were given the opportunity to explain your actions, the company is of the view that you wilfully violated a company safety device..."

19 Mr Gorgievski argued in his submissions that Mr Graham was dismissed with only circumstantial evidence that he committed the offence which led to his dismissal. He asserted that the evidence before me in this hearing was that Mr Graham left the crane in the customary manner and in a safe and reasonable state at the handover to Mr Kynes - at approximately 6.27am on Sunday, 23 September, 2007. Mr Gorgievski pointed out that Mr Kynes had been uncertain as to whether or not he went straight to the crane cabin at the commencement of his shift and consequently there was a "...window of opportunity..." of at least 30 minutes for some unknown person to enter the crane cabin and wrap the hosing around the shaft of the crane controller.

20 Mr Gorgievski also drew my attention in his submissions to the lengthy period of satisfactory employment by Mr Graham and suggested that should have been taken into account when BlueScope Steel considered what action it should take with respect to the matter. In that respect he referred to the decision of Watson J of the former State Industrial Commission in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 and, in particular, his Honour's comments (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..."

But it is the seriousness of the offence alleged against Mr Graham which, according to Mr Dearden means that less emphasis is placed on an employee's past good conduct in this case.

21 Mr Dearden described the offence against Mr Graham to be a serious and wilful breach of established safety policies in the steelworks. He sees no other explanation than that it was Mr Graham who wrapped the hosing around the shaft of the crane controller and disengaged the "deadman" operation of the tongs on the crane. He asserted in written submissions that the evidence before me in this hearing:

"...makes the only realistic finding possible for the Commission that Mr Graham installed and operated the tong controller with the device attached..."

22 Mr Dearden referred in his submissions to comments I made 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 at p.17], viz:

"...It must be appreciated by all steelwork employees that they are working in a particularly hazardous environment and they should always act accordingly. It is not a place for a casual approach to safety issues..."

Mr Dearden emphasised that if any accident had occurred in this case it would have been Mr Graham's fellow employees who would have suffered and not Mr Graham, who would have remained safe in the overhead crane cabin. And, as Mr Matarranz indicated in his evidence, any such incident where a coil dropped would have been likely to have proven fatal to any employee under it when it fell.

23 The issue before me in this hearing is essentially to determine whether the summary dismissal of Mr Graham was "harsh", "unreasonable" or "unjust", to use the language of S.84(1) [Busways v. Johnson (1994) 55 IR 255 at p.261]. As the Full Bench of the Federal Court (Sheppard, Gray and Harley JJ) commented in Bostik (Australia) Pty Limited v. Gorgevski (No 1) (1992) 36 FLR 20 at p.28 the words "harsh", "unreasonable" and "unjust" are:

"...ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision of the employer. Any harsh effect on the individual employee is clearly relevant but, of course, not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct …"

24 It goes without saying that if Mr Graham tampered with equipment to the extent that it put in jeopardy the safety of fellow employees - and that is the allegation against him - it is a very serious matter indeed. As the Full Bench indicated in Bostik (Australia) Pty Limited v. Gorgevski (No. 1), the gravity of that offence justifies his summary dismissal, notwithstanding his lengthy period of satisfactory employment in the Port Kembla steelworks. But Mr Graham emphatically denies that he tampered with the crane controller.

25 Ordinarily, the onus of proof to establish that a particular dismissal was unfair rests with the trade union or other representative of the dismissed employee in the proceedings [Tipping's Case (1957) AR 273 at p.279, Re Barrett and the Crown Street Womens' Hospital (1947) AR 565 at p. 566 and the Nowra Bomaderry Leagues Club Case (1986) 15 IR 463 at p.464]. But where the dismissal arose from misconduct, which is denied, as is the case with Mr Graham, the onus of proof shifts to the employer to establish that the misconduct actually occurred in the first place. In Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Hungerford J commented (at pp.83 and 84) as follows:

"…It is undoubted, in my view, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union… However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as a justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense, to establish that fact, shifts from the union to the employer…"

26 The outcome is that, where there is an element of doubt concerning the evidence, that onus has not been discharged and the evidence of the dismissed employee must be accepted [Miller v. Minister for Pensions (1947) 2 All ER 372 at pp.373 and 374]. As I indicated in my unreported decision of Wednesday, 14 November, 2001 in Vouzas v. Askgun Pty Limited [Matter No.IRC 2179 of 2001 at p.8]:

"…since (the party having the onus of proof) has not been able to satisfy me that (the evidence of the other party) is incorrect, I should accept it as the truth..."

27 However, the standard of proof is not the criminal standard - beyond reasonable doubt - but the civil standard - the balance of probabilities [Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299]. 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 principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct...is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. 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..."

28 There were three crane operators working from No.66 crane in the relevant period of time from Saturday, 22 September to Sunday 23 September, 2007 - Mr Channing, Mr Graham and Mr Kynes. Mr Graham does not appear to me to be suggesting that either Mr Channing or Mr Kynes wrapped the hosing around the shaft of the crane controller. Mr Graham claimed that when he took over the crane from Mr Channing, the hosing was on the floor of the crane cabin and he placed it on the seat beside him. What was it doing there? But there is no evidence before me that Mr Channing operated the crane with the device in place around the shaft of the crane controller. And it does not appear to me likely that Mr Kynes would have had the opportunity of wrapping the hosing around the shaft of the crane controller before he contacted Mr Tilden. Moreover, he believed that what he observed was a "...bodgie repair..." job and not the serious matter that it actually was. Why would he contact Mr Tilden about it if he was in some way involved in using the device?

29 Mr Graham simply claims that he had been "...set up..." by some unknown person. Inevitably, that would have had to occur around the time of the change over from Mr Graham to Mr Kynes. And to my mind, that claim by Mr Graham is not plausible. Mr Matarranz checked the computer data for coil handling at the relevant time. The computer records show the crane movements to the second. Mr Matarranz formed the view that the handover of the No.66 crane between Mr Graham and Mr Kynes occurred between 6.17am and 6.27am on Sunday, 23 September, 2007. Assessing the computer records, Mr Matarranz concluded in his written statement that:

"...I reviewed the data and, allowing time for the No.66 crane to come back to the landing from dropping off the last coil, which was 6.17.56am, the next step would have been for Mr Graham and Mr Kynes to complete a handover, and then for Mr Kynes to enter the cabin, get the next job, collect a new coil and placing it in the designated area [6.27.10am]. Considering this, I doubted anyone could have entered the crane, attached the device and left the crane without being seen. Accordingly, I dismissed Mr Graham's claim that he had been set up..."

30 Moreover, the crane cabin is a very exposed part of the steelworks. It is at a height which would make it open to view from just about any part of the MCL; it has wide glass window panels for the crane operator to observe the operations in which he is engaged; it is accessible only by way of steps which would have no doubt meant that any person attempting to sabotage the crane controller would have had to pass either Mr Graham or Mr Kynes. Mr Graham conceded in his evidence that it would not be customary for any employee without a crane ticket to enter the crane cabin.

31 Mr Gorgievski challenged the reliability of the computer records on which Mr Matarranz was in part relying in reaching his conclusion that Mr Graham alone was responsible for wrapping the hosing around the shaft of the crane controller. Mr Gorgievski claimed that crane drivers did not always accurately record on the computer the actual times of each crane movement, sometimes delaying the recording of that information on the computer to a later time. But there is nothing by way of evidence before me to support such an assertion or rebut the presumption that the computer data is accurate as to the time of the crane movements.

32 The crane movements are recorded in the computer with considerable precision - to the second - and prima facie I must accept the data from the computer to be accurate. There is an established evidentiary presumption of the accuracy of any scientific or technical instrument: for instance, the general correctness of a clock to identify the time or a speedometer to identify distance. In Porter v, Kolodzeij (1962) VR 75 Herring CJ of the Victorian Supreme Court commented (at p.78) that:

"...The speedometer...today takes its place...amongst a class of instruments of a scientific or technical character, which by general experience are known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such class before allowing the presumption in question to operate with regard to readings made thereon..."

In the absence of any evidence to the contrary - and there really is none - I believe that I must accept the computer data in these proceedings in the same light. It is all that Mr Matarranz, or I in these proceedings, really have to go on to confirm the times of the crane movements.

33 That having been said, the position becomes somewhat less clouded. If an employee is in total control of the circumstances which led to his dismissal, as I believe was the case with Mr Graham, it would not be necessary for the employer to prove an offence committed by the employee; the event would speak for itself - res ipsa loquitur [Scott v. London and Katherine's Docks Company (1865) 3 H & C 596]. That was the view I took in my unreported decisions of Wednesday, 13 June, 2001 in Turner v. First Fleet Logistics [Matter No.IRC 5907 of 2000 at p.10] - dealing with a mechanic dismissed for negligence when a sump cap on a vehicle he was servicing was not replaced - and on Thursday, 15 August, 2002 in Cevenini v. Bowport Allroads Pty Limited [Matter No.IRC 35 of 2002 at p.8] - dealing with the driver of a truck involved in a road accident with a stationary vehicle. In both cases the dismissed employee was in total control of the environment in which he worked and any damage to property must therefore fall entirely on him.

34 It is not altogether clear why any crane operator would need to wrap the hosing around the shaft of the crane controller. There are a number of unanswered questions which have emerged in this case. Upon his investigation, Mr Tilden found the tong control to be in working order. Why would there be a need to install the hosing in the first place? What real benefit would Mr Graham or any other crane driver derive from disengaging the tong control in those circumstances? None, in my opinion, other than he would marginally speed up the crane operations. What was the hosing doing on the floor of the crane cabin the first place? That is where Mr Graham asserts he found it. Does that mean that other crane operators had used the device from time to time and had left it there for that purpose? That suggests to me that Mr Graham may not have been alone in using the hosing in that inappropriate manner.

35 But ultimately, as Mr Dearden asserted in his submissions, it seems that there is really no other alternative for me to draw from the evidence before me in this hearing other than that Mr Graham was responsible for either wrapping the hosing around the crane controller or using it in that condition. Notwithstanding Mr Gorgievski's comprehensive defence of Mr Graham, to my mind no other explanation seems to me to be available from the evidence before me. The evidence before me leads to the conclusion that it was he who placed the device on the crane controller, thereby disengaging the "deadman" operations in the process, and operating the crane in that unsafe condition.

36 For those reasons, I do not believe that there are grounds for my intervention and I do not propose to do so. I dismiss the AWU claims on behalf of Mr Graham in these proceedings.

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