Helmut Schuster v Australian Steel Mill Services Pty

THE ISSUE 7Consistent with the established safety procedure of BlueScope Steel in the Port Kembla steelworks, ASMS has a system in place to isolate equipment used if it requires maintenance or servicing. Clearly the procedure in place is important to ensure particular machinery or plant on which work is being performed are not restarted when there are employees working on or near it. There are three locks used by ASMS in group isolation procedure, viz:

• yellow equipment locks are used to secure and isolate machine or equipment in a locked position and are attached and removed only by an accredited isolating person;
• green group locks are used by an accredited isolation co-ordinator to secure a group isolation board and may only be removed by the isolation co-ordinator; and
• red personal locks are attached and removed only by the owner of that lock and they are distributed to all maintenance and production employees for their personal protection. 8The locks are placed on a Perspex isolation board on the particular machine or equipment in question. Mr Schuster had received the appropriate training in the isolation procedure - Level I for personal protection and Level II for isolation co-ordinators. 9The circumstances concerning Mr Schuster's dismissal are not in dispute. He does not deny that on Friday, 12 November, 2010 he was in breach of a group isolation procedure and that he ran the equipment in question [Conveyor C10] - briefly (from 10 to 12 seconds) but several times (possibly three times) - when it had been isolated. At that time Mr Schuster was working in a cleanup for the metal recovery plant. He was not engaged as isolation co-ordinator on that day but he had bypassed the personal isolation locks by bending the Perspex screen on the isolation board to gain access to the yellow equipment lock. At that time there were other red personal locks on the board other than his own. 10Mr Gentles brought the incident to the attention of Mr Knight and he interviewed Mr Schuster on Thursday, 18 November, 2010. The matter was subsequently the subject of investigation by Mr Marshall, assisted by Mr Gentles and Mr Knight and a report prepared and provided to Mr Leavesley. 11On Friday, 26 November, 2010 Mr Leavesley, Mr Marshall and Mr Knight met with Mr Schuster and representatives from the AWU. Mr Leavesley recalls Mr Schuster saying at the meeting: "I am sorry. I understand that I had done something wrong and had breached an important procedure. I will never do it again." 12And further: "I saw guys over at the workshop. I wanted to get finished so we could go to smoko. I had a brain explosion. It was the stupidest thing and I regret it wholeheartedly. I put myself at your mercy. I thought it was safe because no one stands on conveyors." 13Mr Schuster claims in his evidence in this hearing that he "...just wanted to get the work done..." but he does not deny that he may have spoke in the terms which Mr Leavesley recalled. 14Mr Schuster claimed that the relevant isolation procedure [SP MRP 84] was not compatible with the nature of the work actually performed in the metal recovery plant. He also asserts that, although there were other red personal locks on the board, he had a clear view of the entire conveyor and was confident that there was no one near it. I do not believe that he should be so confident of the location of the other employees. According to Mr Leavesley, Mr Schuster had admitted in his meeting with him that at the time he ran the conveyor he did not know where the maintenance staff actually were working: they still could have been working on or near it. The fact remains that there were still red personal locks on the board and therefore confirmation that they were likely to be working from time to time on the conveyor.

CONCLUSION 15My principle task in this hearing is to determine whether, using the language of s.84(1), Mr Schuster's dismissal was "harsh", "unreasonable" or unjust" [ Busways v Johnson (1994) 55 IR 325]. I understand that Mr Schuster has a clean employment record with ASMS. His dismissal flowed entirely from the incident on Friday, 12 November, 2010. 16In a written statement which formed the basis of his evidence in this hearing, Mr Schuster outline what he sees as mitigation for his offence, viz: "....In the 18 years that I was employed for ASMS, I have worked in all areas where ASMS has contracts... I'm familiar with the practices that existed in each of those area and in the present area at the metal recovery plant there exists a distinct culture of how work is carried out and these work practices have remained consistent to this day. Given the onerous nature of the work, I take safety and the safety of others very seriously in the metal recovery plant area that I worked in. In my time at the metal recovery plant, I have contributed ideas that have been implemented to streamline the work, making it more efficient and productive. The design of the plant area is such that historically, it took a long time to get aspects of the work done - usually 8 hours and usually in unsafe conditions. It now takes us 4 hours to do the same work with the ideas that I suggested. The procedure [SP MRP 84] that I was alleged to have breached is drafted in such a way that it did not take into account the nature of the work that we have to do, and does not distinguish who is working where. In other words, there are only four of us who work on C10 and C13 whilst other personnel worked on other conveyors upstream and not in the 'line of fire'. ...The nature of the work requires jack picking with small picks underneath the magnet and sidewalls. After jack picking for a period of time, we then have to run the conveyor or otherwise it becomes too heavy and unsafe, with the potential for overloading the unit. We have to run the conveyor multiple times and in short bursts to avoid problems. The common practice is to check that there is none of my other work colleagues near or on the conveyor belt, and we would take a break and one of us would take the equipment key, unlock, process the siren to warn of the pending movement of the conveyor, and then the conveyor runs. If I had been made aware that this practice would result in my termination of employment I would never had performed it. In my defence, I'm only doing what I have always done. It is instructive to note that this practice has been observed previously when others have done it. As one of the most experienced plant operators in this area my role is to ensure the safety of inexperienced operators. I usually need to instruct them in the safe methods of removing the build-up from the conveyor and walls. There is no standard operating procedure that inexperienced operators can rely on; they have to rely on operators like myself or their own judgment. When this particular aspect of the job is performed, I'm taken off my primary role as the loader driver due to my experience and motivation for getting the job done. My main priority is always to ensure that no personnel are placed in harm's way. I had ensured this many times during the day when I ran the conveyor. My mistake on this occasion was to not get the maintainers to remove their locks. All of the locations where maintainers work are remote from the conveyor that I ran, namely C10. There was no danger posed to any of them..." 17Therefore, whilst in this hearing Mr Schuster does not dispute that what he did was unsafe, he asserts that he was only following customary practice in doing so and that, in his opinion, there was no likelihood of harm to another ASMS employee. But if he did not know if employees were working at the time that was an assumption he should not have made in the interests of those employees with whom he works. 18Mr Phillips has not adduced any evidence to support Mr Schuster's claim that he was only following customary practice for work in the metal recovery plant. If that were so, I suspect that other ASMS employees may be reluctant to come forward to give support to Mr Schuster in that respect because that may possibly be an admission of wrongdoing on their part which may place their own employment in jeopardy. I note from the report prepared by Mr Marshall that he identified: "....one previous isolation incident...from late 2009 but there was no evidence found of widespread abuse of the group isolation process..." 19But in any event, I do not believe that Mr Schuster may excuse his conduct on the basis that other ASMS employees may also have been guilty of such conduct anymore than a driver who is speeding on a public road can defend himself when charged with a driving offence by saying that other drivers who were not booked were also speeding. The responsibility placed on an employee to act safely at work is a personal responsibility for the employee alone. 20In my opinion, workplace safety should always be regarded as of fundamental importance in any employment situation. And the nature of all work in a steelworks makes it an inherently hazardous working environment and not a workplace which should tolerate a casual approach to workplace safety. BlueScope Steel has a comprehensive and strictly enforced safety regime in the Port Kembla steelworks and all contractors and the employees of contractors engaged on the steelworks site are obliged to comply with those "cardinal rules" on safety. 21It is appropriate that such a policy is adopted and followed strictly by employees. It is trite to say that it is in an employee's own interests, and the interests of the employees with whom he works, to ensure that at all times he acts with safety at work. Furthermore, an obligation is placed on employees under s.20(2) of the Occupational Health and Safety Act 2000 to co-operate with their employer and comply with any direction concerning workplace safety. 22In the past in dealing with disciplinary matters involving steelwork employees (which have in the past come before me in my role as a member of the State IRC and continue to do so by virtue of s.146B of the State IR Act) I have, in fact, raised safety issues in the steelworks to the level of a fundamental condition for all employees working there. For instance, Mr Jervis referred to my decision of Wednesday, 19 December, 2007 in Abbott and Markham v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 which involving the dismissal of two employees who failed to isolate power to equipment in coke ovens. I declined an application for their reinstatement in employment and went so far as to suggest (at para.45 and 46) that: "...such a fundamental breach of an important condition of contracts of employment in the steelworks is... misconduct. (The two dismissed employees) recklessly disregarded what I consider to be an essential condition in their contracts of employment at the steelworks [ Laws v London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285]. That is sufficient to ground (the) allegation that they were guilty of misconduct. I do not consider that (the respondent's advocate) has to prove their act was deliberate , only that they were recklessly negligent . I believe that they were. I note in that respect the comments of Cook J of the former State Industrial Commission in the Homebush Abattoir Case (1966) AR 371 at p.374), viz: '...In my view, the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service ...'. My emphasis. The conduct of the (dismissed employees) strikes at the heart of their employment in the steelworks..." 23And if Mr Schuster's defence to his conduct on Friday, 12 November, 2010 was that he "...had a brain explosion..." and "...wanted to get finished so we could go to smoko...", as Mr Leavesley recalled Mr Schuster admitting, that suggests a most inappropriate approach to occupational health and safety. Mr Schuster should know better. But he has given me the impression ion his evidence that he is remorseful over his conduct on Friday, 12 November, 2010. It appears that in the meeting he had with Mr Leavesley on Friday, 26 November, 2010 he expressed similar remorse and regret (although Mr Knight claimed that he did not do so on Thursday, 18 November, 2010 when he first interviewed him over the incident.) 24Of course, it is always open to an employer to chose a lesser penalty to dismissal, eg counselling or a warning, having regard to an employee's otherwise overall clean employment record. It is also a legitimate function of industrial tribunals in this country to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: such an approach is, in fact, suggested by the word "harsh" in s.84(1): the punishment should fit the crime [ Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 at p.233 and Pacific Power v Crump (1993) 48 IR 296 at p.302]. That, in essence, is the main submission made by Mr Phillips on behalf of Mr Schuster. 25There have been many instances coming before me where, despite the fact that the dismissed employee was guilty of a breach of safety, I have nevertheless ordered his reinstatement in employment, eg where the dismissed employee threw a knotted rag and water at his cousin, apparently teasing him - my unreported decision of Wednesday, 14 January, 2004 in Farrugia v BHP Steel Limited [Matter No.IRC 6739 and 6812 of 2003]; where the dismissed employee failed to use a harness when working at height [ Jovanovski v BlueScope Steel (AIS) Pty Limited ]; where an employee failed to follow isolation procedure [ Zdraveski v BlueScope Steel Limited [2008] NSWIRComm 1028]; and where the dismissed employee threw a metal bar in the direction of another employee with whom he had an argument [ Australian Workers Union v Transfield Services (Australia) Pty Limited [2008] NSWIRComm 1120]. 26In its decision of Friday, 24 December, 2010 in Lawrence v Coal and Allied Mining Services Pty Limited, trading as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, a Full Bench of Fair Work Australia (Lawler VP, O'Callaghan SDP and Roberts C) considered a similar issue involving an employee dismissed for a failure to follow isolation procedure. The majority decision of Lawler VP and Roberts C was for the reinstatement of the dismissed employee. The majority said this [at para. 38]: "....We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action, let alone dismissal, and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that (the employee) was unfairly dismissed..." 27An appeal against that decision to the Federal Court [Marshall, Cowdroy and Buchanan JJ) was dismissed on Tuesday, 19 April, 2011 [ Coal and Allied Mining Services Pty Limited v Lawler [2011] FCAFC 54]. 28I should exercise care in adopting a decision based on a different legislative regime to the current proceedings under Part 6 of the State IR Act (although, as Mr Jervis indicated in the hearing, on the question of unfair dismissal claims there is a certain similarity between the State IR Act and the FW Act). The matter should also be considered in the context of the employment arrangements in place in the Port Kembla steelworks, with its very strong emphasis on workplace safety - something of which I would expect all employees working in the steelworks to now be well aware. Whatever may have been the position in the past, I believe it to be fairly clearly understood that any indiscretions on safety issues in the steelworks will now be considered under a very strict safety regime. I also regard Mr Schuster's safety breach as being at the more serious level. 29However, I note that Mr Schuster has 18 years of what I accept to be otherwise satisfactory employment with ASMS. I also am aware of how difficult finding suitable employment is in the Illawarra region. I understand that since his dismissal Mr Schuster has found some casual employment but nothing to the level that he enjoyed whilst working for ASMS. Mr Schuster is a single parent with two teenage daughters in his care and so dismissal would be a very serious matter for him. For those reasons I propose to order Mr Schuster's reinstatement in employment with ASMS. 30I would not wish by that decision to be taken to be undermining the approach to safety issues at work in the steelworks which ASMS has taken on this occasion, which is appropriate. Mr Schuster must appreciate that his continued employment in the steelworks is dependent upon his strict observance of all safety requirements in future. His continued employment in the steelworks rests in his own hands. I decline to recompense Mr Schuster for any loss of earnings in accordance with S.89(3). His conduct over the incident still merits some censure and a penalty to him, in my opinion. O R D E R

1. Australian Steel Mill Services Pty shall: (a) reinstate Mr Helmut Schuster in employment as a plant operator; (b) take his employment not to have been broken by his dismissal.
2. This order shall take effect on and from Thursday, 30 June, 2011. P J CONNOR Commissioner 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. Decision last updated: 30 June 2011