Robert Wilson v BlueScope Steel

THE EVIDENCE 6In the hearing Mr Phillips called Mr Wilson to give evidence and Mr Williams called Mr Trevor Dallas, the logistics manager (spares warehousing) as a witness. Mr Wilson's current difficulties are briefly stated. His duties whilst working at the IDC were the receipt, storage and distribution of spares and equipment. It essentially involved the delivery of a range of goods both inside the Port Kembla steelworks site of BlueScope Steel and outside it. To perform that work Mr Wilson was required to drive various types of vehicles. 7Mr Dallas conceded that there were other duties available in the IDC which did not involve driving of heavy vehicles, but he spoke of the need to preserve flexibility for all employees working in the IDC and that, in any event, driving was essential on night shifts. I accept, as Mr Dallas indicated in his evidence, that driving is an integral part of the work which Mr Wilson would be called upon to perform were he to be reinstated in the IDC. 8A drink driving offence committed by Mr Wilson in 2010 meant that he initially lost his licence to drive any vehicle but following his attendance at a drink driving course for six weeks and due to ongoing monitoring, the final determination of the court was to allow him to drive his own vehicle on a restricted licence, ie a breath analysis machine must be attached to any vehicle he drives which will not start until he has breathed into it and which randomly activates when he is driving the vehicle. There are still restrictions on his driving of heavy vehicles which he claims in his evidence will be removed in October, 2011. 9During the time that the charges against him were being dealt with by the local court, Mr Wilson applied for, and was granted, annual leave, long service leave and other forms of leave. Mr Dallas indicated in his evidence that Mr Wilson was at first not being honest when he requested that leave. He had sought the leave in the middle of 2010, informing Mr Dallas that he had a sick niece in Melbourne and that he would require to take leave to attend to her. Mr Wilson asserts in his evidence in this hearing that was, in fact, the truth and that his niece had suffered a brain aneurism. But he did not disclose the difficulties he had in driving vehicles at that time. 10Later in 2010 he sought an extension of that leave to Monday, 20 September, 2010 on the same grounds. He then sought a further extension of his leave, informing Mr Dallas that he had "...some personal issues that he needed to resolve but was not in a position to discuss...". Mr Wilson claimed that he was too embarrassed to reveal his driving offence to Mr Dallas. 11However, prior to the completion of his leave Mr Wilson telephoned Mr Dallas and asked if he could visit him to discuss a personal issue and Mr Dallas did visit him on Friday, 1 October, 2010. At that time Mr Wilson informed him that he had lost his drivers licence on a drink driving charge but was able to reapply for his licence on Monday, 18 October, 2010. He was granted further leave until his drivers licence was reinstated. 12Mr Wilson returned to work on Saturday, 6 November, 2010 and was informed that he could not drive any vehicle until he produced a current drivers licence. He came to work on Sunday, 7 November, 2010 (day shift) and Monday, 8 November, 2010 (night shift) without producing his drivers licence as requested, informing Mr Dallas that he had forgotten it. He reported sick on Tuesday, 9 November, 2010. It is Mr Dallas's suspicion that he did not expect supervisory staff to be present on the weekend and night shifts and consequently the restrictions on his driving may have escaped attention and not have been pressed. Mr Wilson returned to work on Monday, 15 November, 2010 (day shift) and Tuesday, 16 November, 2010 (day shift) and Wednesday, 17 November, 2010 (night shift). He again attended to work on Thursday, 18 November, 2010. At that time he was sent home until he produced a current drivers licence. 13Mr Wilson belatedly supplied Mr Dallas with a copy of his current drivers licence. Mr Dallas noted the restrictions on it. Mr Dallas subsequently told Mr Wilson that he would be suspended from employment until he satisfied him that he was able to perform all of the duties of his position. Mr Wilson was subsequently dismissed on Saturday, 15 January, 2011. 14According to Mr Dallas, Mr Wilson had from the outset not been forthcoming concerning the extent of the restrictions imposed on his driving and it was not until Thursday, 24 February, 2011 in a meeting I directed as part of the conciliation of the AWU's Part 6 application that Mr Wilson finally confirmed the nature of the restrictions imposed on his drivers licence. Mr Dallas recorded in a written statement which formed the basis of his evidence: "....As per the request of the Commission, a meeting was held on Thursday, 24 February, 2011... Mr Wilson advised that he was having financial difficulties and needed to return to work and would the company consider other roles... Mr Wilson finally advised the details of his drink driving charge and penalty. He advised that he was charged in March, 2010 and had his licence revoked at that time. He attended court in June or July and was awarded six months loss of licence and a restricted licence for a further two years from September, 2010 provided he followed specific conditions imposed on a twelve month parole period. This was the first time I had heard any facts and details surrounding the loss of his licence..." 15The AWU had requested that Mr Wilson be transferred to another department of BlueScope Steel. Mr Wilson has apparently come reluctantly, and no doubt with the assistance and advice given to him by Mr Phillips , to recognise the difficulties associated with returning to work at his previous job in the IDC but he has requested a transfer out of the IDC to some other position within BlueScope Steel's operations, ie a position which did not require a drivers licence. He has still apparently expressed a reluctance to perform work at the plate mill. An offer was made by BlueScope Steel to seek openings that may arise for suitable vacant positions for Mr Wilson but, according to Mr Williams , no suitable internal vacancies have arisen for him. 16Indeed, that offer made by BlueScope Steel to assist in obtaining alternative employment for Mr Wilson must now be considered in the context of the current financial situation for the steelworks - in particular, the high cost of the Australian dollar - which is having an impact of work in the steelworks and the availability of vacant positions has, as I understand the position, dried up. But the fact is that may not necessarily have been the case if Mr Wilson had volunteered information concerning the restrictions on his driving earlier. BlueScope Steel may have been able to accommodate him if he had been honest from the outset.

CONCLUSION 17The principle remedy for an unfairly dismissed employee is reinstatement under s.89(1), viz: "The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed." 18The reinstatement of Mr Wilson to his former position in the IDC is clearly impracticable at the present time with the current restrictions imposed on his drivers licence: Mr Wilson appears to have reluctantly now accepted that situation and Mr Phillips does not press for it in this hearing. I am not authorised by s.89(1) to place any specific conditions on the reinstatement, ie limiting the type of work actually performed in the position to other than driving duties. The reinstatement stands or falls on the existing requirements of the position in question and, as Mr Dallas indicated in his evidence, driving is an integral part of his duties he performed in the the IDC . 19Mr Phillips seeks instead the re-employment of Mr Wilson to some other position in the Port Kembla steelworks operations of BlueScope Steel under s.89(2): "If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable." 20There are two requirements with s.89(2): (i) that the former employer has another position available and (ii) that, in the opinion of the member of the Commission hearing the matter, the applicant is suitable for that position. There is no evidence before me to confirm what work may actually be available to Mr Wilson in BlueScope Steel. 21In the unreported decision of Friday, 16 December, 1994 in Commonwealth Steel Company Limited v Ward [Matter No.IRC 3144 of 1993] the Full Bench of the Commission (Hill and Hungerford JJ and Sheils CC) took the view (at pp.16 and 17) that the word "available" in the equivalent provisions to s.89(2) in the Industrial Relations Act 1991 was not the same thing as "vacant": it simply meant that it would be possible to place a dismissed employee in an existing position on an employer's establishment apart from the position which he formerly occupied. 22Ultimately, in Riley v. WorkCover Authority of New South Wales (2006) 151 IR 396 at p.420 the Full Bench (Wright J - President, Boland J and Connor C) adopted the reasoning in Commonwealth Steel v Ward . Before a finding can be made as to whether the dismissal was harsh, unreasonable or unjust, there has to be a full and transparent consideration by the Commission as to whether there was a position available that was suitable for the employee. Whether there was a position actually available does not mean that the position has to be vacant but whether there was a position "...capable of being used by, or at the disposal or within the reach of the employer - whether or not it was vacant at the time...". 23But the fundamental issue before me in this hearing is to determine the actual reason for Mr Wilson's dismissal. Commonwealth Steel Company Limited v Ward and Riley v WorkCover Authority of New South Wales concern claims by employees dismissed because of questions raised over their fitness on medical grounds to perform the work required of them. There was not an element of a disciplinary nature in the dismissals. But there is with Mr Wilson, in my opinion. Mr Wilson's dismissal was not alone because of the restrictions imposed on his driving - which really were not confirmed until after his dismissal, in any event - but because of his failure to disclose details to BlueScope Steel management concerning those restrictions, which I believe that it was his obligation to provide from the outset. 24It seems clear to me that Mr Wilson has been far from honest in explaining his situation to BlueScope Steel management. He has not helped himself in his employment with BlueScope Steel. And the management was entitled to know all the details concerning the restrictions imposed on Mr Wilson in driving any vehicle - a fundamental aspect of his employment, as I see the situation. Mr Dallas claimed that Mr Wilson has been evasive, dishonest and deceitful. That must prejudice the AWU application now made on Mr Wilson's behalf in this hearing. 25Mr Wilson is, of course, at liberty to apply for the position he formerly occupied in the Port Kembla steelworks if that position becomes vacant and if the current restrictions imposed on his driving are removed entirely. He may also apply to any other vacant position elsewhere in BlueScope Steel's Port Kembla operations when such a vacancy may arise in future. But in the circumstances, I see no grounds for my intervention in support of Mr Wilson in this hearing, either to order his re-employment in BlueScope Steel or, alternatively, to provide monetary compensation to him for his dismissal. 26I dismiss the application made by the AWU on his behalf. 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: 08 July 2011