Zdraveski v. BlueScope Steel Limited [2008] NSWIRComm 1028

Industrial Relations Commission (NSW)|2008-05-23

CITATION: Zdraveski v. BlueScope Steel Limited [2008] NSWIRComm 1028

APPLICANT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PARTIES: RESPONDENT BlueScope Steel Limited

CATCHWORDS: termination of employment - steelworks - referral agreement - breach of safety - failure to follow isolation procedure - claim for reinstatement in employment - reinstatement granted

Industrial Relations Act 1996 LEGISLATION CITED: Federal Workplace Relations Amendment (Work Choices) Act, 2005 Occupational Health and Safety Act, 2000

Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 Brown v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1021 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 CCH Australia Limited v. Bowen (1998) 79 IR 206 Entertainment Distributors Company Pty Limited v. Burnard (1993) 49 IR 446 Federated Municipal and Shire Council Employee's Union of Australia v. Liverpool City Council (1988) 25 IR 246 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 CASES CITED: Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 Oswald v. New South Wales Police Service (1999) 90 IR 42 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Plummer v. Stannard Brothers Launch Service Pty Limited (2005) 145 IR 111 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Subramanium v. Public Prosecutor (1956) 1 WLR 965

APPLICANT Aron Neilson Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES:

RESPONDENT Aaron Dearden Duncan Cotterill Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and BlueScope Steel Limited

1 Mr Mick Zdraveski was employed by BlueScope Steel Limited as a shift fitter on the metal coating lines under the terms of the BlueScope Steel Limited - Springhill and CRM Employees Award. He is a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. On Wednesday, 5 December, 2007 Mr Zdraveski was sent home (without loss of pay) for four shifts and the AFMEPKIU lodged a notification of the matter as a dispute under S.130 of the 1996 Industrial Relations Act. The matter came before me for a conference on Tuesday, 11 December, 2007 and Monday, 17 December, 2007 in the Commission's premises at 90 Crown Street, Wollongong.

2 In the meantime, BlueScope Steel was further investigating the matter which led to Mr Zdraveski being sent home on pay. He was dismissed on Thursday, 13 December, 2007. The dismissal of Mr Zdraveski prompted the AFMEPKIU to lodge a fresh S.130 notification and ultimately an application under 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:

"The dispute concerns the alleged unfair dismissal of Mick Zdraveski."

That 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.

3 I take the view that, in fact, a combination of Part 6 and Ss.130 and 146A is required to provide the jurisdictional basis for the claim made on behalf of Mr Zdraveski in these proceedings by the AFMEPKIU. 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."

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 - without a S.146A referral agreement, 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 And whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)], I believe that, on its own, it lacks the necessary ingredient to make it an industrial dispute for the purposes of any such S.146A referral agreement. An industrial dispute essentially means a number of employees acting collectively through their trade union. 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 for Mr Zdraveski (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.

5 The matter came before me for conference on Tuesday, 18 December, 2007. Those proceedings, and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. When conciliation failed to settle the matter in dispute, I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner and programming the matter for arbitration in a hearing on Tuesday, 25 March, 2008. That hearing date was vacated at the request of the AFMEPKIU, and with the concurrence of BlueScope Steel. Instead, the matter came on for hearing on Tuesday, 1 April, 2008. 6 Mr Neilson represented Mr Zdraveski and the AFMEPKIU in the proceedings, calling him to give evidence. Mr Neilson has sought Mr Zdraveski's reinstatement in employment. Mr Dearden represented BlueScope Steel in the proceedings. He called Mr David Brain, a project manager for the MCL operations of BlueScope Steel. Mr Dearden is opposed to Mr Zdraveski's reinstatement in employment in the steelworks.

7 Mr Zdraveski had 27 years of employment in the Port Kembla steelworks prior to his dismissal on Thursday, 13 December, 2008. Up to the middle of 2006 his employment with BlueScope Steel was without criticism of his safety record but at that time he failed to follow the procedure set down for a "job safety and environment analysis" [JSAE] which outlines the steps required for new work or any tasks which the employees consider may involve some risk. BlueScope Steel regarded that as a serious breach of safety and he received a final warning, a three day suspension and for three months he was transferred from shift to day work, whilst retaining his shift wage, so that his conduct on safety issues could be monitored. During that time Mr Zdraveski participated in an occupational health and safety review and training and was mentored to improve safety skills, awareness and responsibilities. He met the standards set for him by BlueScope Steel management in that respect.

8 But Mr Zdraveski's dismissal also flowed from a similar safety breach, ie his failure to follow the steps in the established isolation procedure on his shift on Tuesday, 13 November, 2007. He was scheduled to assist in the change over of a pot holding the metal. Pot changes occur depending upon the orders that BlueScope Steel has to fulfil and he had incorrectly replaced an hydraulic hose at the crop shear (entry end) of the MCL rather than at the parting shear (exist end). 9 Mr Zdraveski was directed to perform that task by Mr Steve Tomlinson, the production foreman. He was provided with a "blue card", ie a job specification, prepared by Mr Andrew Keeling, another fitter in the MCL. That "blue card" is no longer available for evidence in these proceedings. It is apparently customary for "blue cards" to be disposed of on completion of the job and this one was disposed of in that manner. It is Mr Zdraveski's recollection, that the "blue card" instructed him to replace the crop shear and he obtained the hydraulic hose he required for the task and was provided with details of the isolation procedure for that task. Mr Brain has subsequently been informed by Mr Keeling that he was "...90% certain that the 'blue card...' referred to the parting shear..." in its title.

10 But in the absence of the "blue card", I believe that I must rely primarily on Mr Zdraveski's evidence, given under oath, on that issue. Mr Keeling's recollections, provided through Mr Brain's evidence in this hearing, is hearsay. Mr Brain may only give evidence concerning what Mr Keeling actually said, not its accuracy [Subramaniam v. Public Prosecutor (1956) 1 WLR 965]. Moreover, Mr Keeling's assertions are not entirely conclusive and there is really nothing else that may be advanced by way of evidence which may rebut what Mr Zdraveski has asserted. I must accept it.

11 Another document - the "task isolation procedure" - is also generated to the MCL tradesman performing tasks involving isolation of plant, setting out the steps for the isolation process. That document on this occasion also had a title which made reference to the crop shear. The "task isolation procedure" document and the "blue card" are produced independently of one another. It is surprising to me that both the "blue card" on the documentation outlining the isolation procedure made reference to the crop shear in their title. But the steps in the isolation procedure would have identified the task as involving the parting shear. Each step in the isolation procedure requires a signature from the employee conducting the isolation.

12 There are six locks and isolating labels for both the entry and exit ends of the MCL but the labels are different, viz:

DCL3EN - OH - P2 DCL3EX - OH - P1 DCL3EN - OH - R2 DCL3EX - OH - R1 DCL3EN - OH - D2 DCL3EX - OH - D1 DCL3EN - AC - P11 DCL3EX - AC - P1 DCL3EN - AC - P10 DCL3EX - AC - P2 DCL3EN - AC - P12 DCL3EX - AC - P4

In the codes provided EN denotes entry and EX denotes exit.

13 Mr Zdravreski claimed in a written statement which formed the basis of his evidence that:

"...as an employee of the metal coating lines, when one is given a task to replace a hydraulic hose at the MCL the word 'crop' refers to the entrance to the machine and the word 'parting' refers to the exit of the machine. As the procedure which had been handed to me said 'crop' I knew that the hose which needed to be replaced was at the front of the machine and not the exit of the machine..."

"...I checked the hose which required replacement. On an inspection of the hose visually, I did not think that there was anything wrong with the hose and thought that I should check with my supervisor as to whether it should be replaced. There did not appear to be any leak from the hose. There appeared to be a leak from the fitting. I had not conducted an isolation at this time, having only conducted inspection. I went to look for Mr Tomlinson. I could not locate my supervisor. I then tried to ring his mobile phone. The line was down and the employees were waiting for me to get the line up. As I could not find Mr Tomlinson, I decided to complete the replacement of the crop shear hydraulic hose..."

Mr Neilson argued that there was some pressure on Mr Zdraveski to complete his task promptly to bring the line back into operation. His decision was to proceed without raising the issue with Mr Tomlinson. The need to bring the line back into operation promptly is no excuse to depart from established safety procedures, however.

14 According to Mr Zdraveski, he proceeded to the entry of the machine and isolated it. He asserted in his evidence in this hearing that he believed that he was, in fact, isolating the machine in accordance with the procedure, checking off part of the label insofar as it matched the specifications provided to him. He claimed that he used the required six locks for the isolation procedure but there is some doubts concerning that claim and Mr Brain has concluded that he used only five locks. In any event, Mr Zdraveski completed the job, replacing the hose and informed Mr Tomlinson that the metal coating line may now start up. Mr Zdraveski completed his shift and left the site.

15 Nine days later - on Thursday, 22 November, 2007 - Mr Ernest D'Arcangelo, a technical line leader in the MCL, reported to Mr Brain that Mr Zdraveski had incorrectly replaced a hydraulic hose at the crop shear instead of the parting shear and, in so doing, did not appear to have followed the established isolation procedure. The fact that the parting shear hydraulic hose had not been replaced was apparently only discovered when Mr D'Arcangelo discovered oil spraying out of the hose. It had not been noticed earlier. Mr Brain recalled Mr D'Arcangelo saying words to the following effect:

"A blue card had been left for a leaking hose to be repaired at the parting shear, which I understood was completed the week before by Mr Zdraveski. By coincidence I was passing by the shear today and I noticed oil spraying out as the shear was activated. I went to find Mr Zdraveski and asked if he had completed the job. He told me that he had completed the task but after further discussion I found out that he had replaced the hose at the crop shear rather than the parting shear. He obviously didn't look at the isolation procedure properly and went to the entry end instead of the exist end. He has replaced the wrong hose."

Mr Brain, concerned at what appeared to be a breach of isolation procedure, instructed Mr D'Arcangelo to investigate the matter further.

16 On Friday, 23 November, 2007 Mr D'Arcangelo came to Mr Brain's office and told him that he and Mr Tomlinson had spoken to Mr Zdraveski. Mr D'Arcangelo produced to Mr Brain his notes of the discussion he had with Zdraveski and said words to the following effect:

"The isolation had been signed off but had the wrong title. The isolation procedure title said 'crop shear' not 'parting shear' and Mr Zdraveski obviously didn't look at the rest of the isolation procedure and went to the entry end instead of the exit end. He has replaced the wrong hose. He even said that he thought the hose was okay but decided to change it anyway. He said that he followed the procedure and used five locks. The isolation requires six locks. So I'm not even sure he properly isolated either."

17 Mr Brain interviewed Mr Zdraveski on Friday, 23 November, 2007. Mr Zdraveski said:

"I looked at the isolation procedure for the location. When I arrived at the job I could not feel the cut in the hose, but the hose I'd been given was the right length for the hose on (the crop shear). I asked the operator to operate the equipment but there was no big leak. I tried to call Mr Tomlinson in the office to ask why the hose should be replaced but couldn't contact him. There was only a leak from the fitting but I changed the crop shear hose and fitting."

"Even though the title was incorrect on the isolation procedure, both the blue card and the isolating procedure steps referred to 'bottom crop shear'."

"You told Mr D'Arcangelo that you applied five locks but the procedure requires six locks." Mr Zdraveski's reply was:

"I've isolated equipment many times over the years. I know how to do it correctly."

Mr Zdraveski further claimed to Mr Brain that the isolator labels were similar and he had not noticed the difference.

18 Mr Brain indicated in his evidence that he was surprised by Mr Zdraveski's response to his questions concerning the isolation locks. Bearing in mind that Mr Zdravreski had not gone to the actual steps in the isolation procedure, Mr Brain formed the opinion that Mr Zdraveski had simply carried out the work in question by memory. In particular, he believed that Mr Zdreveski had not isolated the air to the shears as required by the isolation procedure (the sixth lock). Mr Brain concluded in his written statement:

"...by the end of the interview, it was obvious that the isolation procedure had been incorrectly titled and that the checking and authorisation steps had not picked up the title error. Despite the title error, Mr Zdraveski had chosen not to, and/or failed to, read through the isolation steps. If Mr Zdraveski had read the steps then he would have seen that each step in the process referred to the exit end and not the entry end. He would then have been able to take steps to find out which hose was meant to be changed and complete the task properly. Mr Zdraveski's failure to read each of the isolation procedure steps was evidence that BlueScope Steel could not trust him to follow safety procedures set by it. If Mr Zdraveski could not follow simple procedures, then we could not trust him to complete more complicated procedures and have him putting himself and others at risk..."

19 Mr Zdraveski now claims in his evidence in this hearing that he did not use only five locks, as has been alleged against him. In his evidence in this hearing Mr Zdraveski claims that he actually used six locks but was missing one of the labels required to accompany the locks and only had five labels. However, Mr Zdraveski conceded that in his interview with Mr D'Arcangelo and Mr Brain he may have stated that he used only five locks. 20 Mr Zdraveski indicated as follows in an affidavit he provided in reply to Mr Brain's written statement:

"...I agree, on reflection, that the isolation procedure on the document provided to me may have been different to the tags on the locks at the equipment but it must be appreciated that the labels are all very similar and are quite greasy and difficult to read. It is quite dark at 10.00pm when I was completing the job and all of these factors combined to add to the pressure of the job. When this is combined with the time pressures of the job, perhaps, on reflection, I have made a mistake. I did read the isolation procedure and I genuinely attempted to comply with it but obviously made a mistake. In being provided with these documents by BlueScope Steel management you like to think that the documents, having been prepared by professionals, are generally correct..."

21 Mr Brain asserted in his written statement that:

"...it is my opinion that Mr Zdraveski is no longer committed to work to the company's safe systems of work. This last incident leaves me with little doubt that further breaches will be inevitable and may lead to serious injury to himself or others. The final decision to terminate Mr Zdraveski's employment was not taken lightly but I believe it was the only decision available, given Mr Zdraveski's poor safety history and what occurred..." The Dismissal

22 Following a meeting with Mr Brain on Wednesday, 5 December, 2007, Mr Zdraveski was directed to go home on full pay pending a decision concerning his employment. A meeting was subsequently arranged with the AFMEPKIU for Thursday, 6 December, 2007 but that did not proceed. Mr Zdraveski had apparently been informed by the AFMEPKIU not to attend any such meeting until his "suspension" was lifted - not a particularly sensible course of action, I would think. Mr Brain explained that Mr Zdraveski had not been suspended but that his refusal to further meet with Mr Brain was not assisting in bringing this matter to a conclusion. A further attempt to arrange a meeting with Mr Zdraveski on Friday, 7 December, 2007 was aborted when he could not be contacted on the telephone. Instead, Mr Brain wrote a letter to Mr Zdraveski in the following terms:

"...The company is currently reviewing the findings of the investigation of the isolation breach for MCL 3 entry shear repair on Tuesday, 13 November, 2007. While that review continues, I require that you remain at home until further advised by me. You will continue to be paid in accord with your normal roster. A review of your safety performance, including this most recent incident, has raised the concerns of the company in relation to your ability to work safely for yourself and with others. The company is forming the view that your poor safety behaviour is making you unsuitable to continue in the industry.

In the light of your safety behaviour record and the support that has been provided to you to improve your safety behaviour at work what response can you provide to me that you can be a safe employee in the future. Specifically, I would ask you to take the time while at home to consider your response to these questions:

What steps have you taken to improve your safety behaviour since August, 2006 when you were issued a final warning for a serious safety breach?

What will you do differently in the future that will persuade the company that you could be fit for the industry?

You need to consider your reply to this request and report back to me on Monday, 10 December, 2007..."

23 And a further meeting was arranged on Monday, 10 December, 2007. The AFMEPKIU representative who accompanied Mr Zdraveski at the meeting indicated that the AFMEPKIU would provide a formal response to Mr Brain's letter of Friday, 7 December, 2007 and it did so, viz:

Mr Zdraveski has undertaken all of the requirements that were asked of him by the company as a follow on from the August, 2006 incident, including monthly review that the company was completely satisfied with and making himself available for any training or re-training that the company felt was warranted.

Mr Zdraveski will continue to follow all the requirements of occupational health and safety legislation and BlueScope Steel procedures and policies dealing with his work at the MCL as a shift fitter..."

24 The AFMEPKIU then indicated its concern over the "standing down" of Mr Zdraveski for four shifts and described it as a breach of the BlueScope Steel Award, concluding its letter as follows:

"...This union and its members will be expecting the same disciplinary action to be taken against all employees who break the award provisions, irrespective of the position within the company. I hope this matter is now closed and we can move forward in a productive manner and not end up in dispute..."

25 Mr Brain claimed in his written statement that: "...I was disappointed with the response from Mr Zdraveski because he continued to deny any responsibility for the isolation failure. He showed no remorse and did not seem to acknowledge that he needed to change his behaviour following the incident. As far as he was concerned, it was everyone else's fault..."

In truth, the letter by the AFMEPKIU (not Mr Zdraveski) seems to ignore the question of Mr Zdraveski's fault. It does not contain any admissions on his part that he may, in fact, have done the wrong thing, however. Nevertheless, in this hearing Mr Zdraveski has conceded that he may have made a mistake in the isolation procedure - an "honest mistake", according to Mr Neilson .

26 BlueScope Steel management subsequently met on Wednesday, 12 December, 2007 to discuss the matter. The view was adopted that Mr Zdraveski's actions on Tuesday, 13 November, 2007 were a wilful violation of proper isolation procedures. Mr Zdraveski had clearly chosen not to read the relevant documentation. Notwithstanding Mr Zdraveski's lengthy period of employment, the decision was taken to terminate his services. That decision was communicated to Mr Zdraveski at a further meeting on Thursday, 13 December, 2007 and he received the following letter at that time:

"...This is to advise you of the termination of your employment from BlueScope Steel as from to-day, Thursday, 13 December, 2007. The company will pay you five weeks ordinary pay in lieu of notice in accordance with your entitlements. After carefully considering all the relevant information, we conclude that your continuing employment with the company is no longer tenable..."

27 Of course, it is always in an employee's own interests to ensure that he acts safely at work at all times. In fact, I raise safety issues in the steelworks to the level of a fundamental condition for all employees working in the steelworks. 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] I went so far as to suggest (at pp.19 and 20) 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 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..."

I do not regard Mr Zdraveski's conduct on Tuesday, 13 November, 2007 to have reached the point where it can properly be categorised as misconduct on his part but it was a serious breach of safety and I am satisfied that he on this occasion adopted a far too casual approach to isolation procedure.

28 At this point of time it is not possible to assert with any real confidence that the procedure that Mr Zdraveski actually did adopt when he isolated the crop shear was, in fact, unsafe. As Mr Brain conceded in his evidence, he would have anticipated that the crop shear would have been isolated in some way or else the work on the hydraulic hose would not have been possible. But clearly Mr Zdraveski would have discovered the errors in the titles given to him on the documentation - the "blue card" and the document outlining the isolation procedure - if he had read them instead of simply relying on their title. I am satisfied that he did not do so. A person cannot determine the contents of a book by looking at the book title. Mr Zdraveski was required to follow each step in the isolation procedure, and sign off that he had done so. I am satisfied that he did not do that.

29 Mr Dearden referred in his submissions to my unreported decision of Friday, 4 March, 2005 in Brown v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 6429 of 2004] in which I highlighted the obligations placed on all employees under the 2000 Occupational Health and Safety Act to conduct themselves safely at work. In particular, S.20(2) provides as follows:

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

30 All steelwork employees should be aware that they work in a hazardous environment. They must treat safety issues seriously in their own interests and the interests of their fellow employees. A too casual approach to safety issues by any employee must place his continued employment under threat. As I indicated in Jovanovski v. BlueScope Steel (AIS) Pty Limited (at p.130), viz:

"...I am uncomfortable to intrude in these proceedings in any manner which would possibly undermine the sensible emphasis which BlueScope Steel places on safety issues in the steelworks with its cardinal rules. There is a need for the employees to appreciate that, among other things, their continued employment in the steelworks is largely dependent upon their compliance with those 'cardinal rules'...."

31 Mr Zdraveski indicated in his affidavit in reply to Mr Brain's written statement that:

"...I am seeking reinstatement and if granted by the Commission I intend to comply with the safety procedures of BlueScope Steel. This whole incident was a mix up at a variety of levels but for some reason I have been the only employee dismissed..."

And he asks rhetorically in his affidavit: "...If it can be accepted that Mr Keeling made a genuine mistake in the drafting of the procedure, why can it not be accepted that I made a genuine mistake in completing the procedure? I note that Mr Keeling has not lost his job over this incident..."

32 The equality of treatment is a factor to bear in mind in assessing the fairness or unfairness of a dismissal. For instance, in Federated Municipal and Shire Council Employees' Union of Australia v. Liverpool City Council (1988) 25 IR 246 Glynn J of the former State Industrial Commission reinstated a female cashier at a child care centre over a discrepancy in cash receipts principally on the grounds that the treatment she received (suspension with a view to dismissal) differed from that of her supervisor, the director of the child care centre (reprimand only). Her Honour commented (at pp.248 and 249):

"…If (the dismissed employee) had been the only person involved in this matter, or if both persons involved had been treated in the same fashion by the council, I would have no trouble in agreeing with the commissioner's decision that her dismissal by council was neither harsh nor unfair. (The dismissed employee) displayed an unfortunate nonchalance in respect of the safety of cash, especially in view of the lack of security at the centre and there having been at least two occasions of theft from the centre… The director neither paid back any amount of the missing moneys nor did she lose one day's pay, but remained in the service of the council. (The dismissed employee) also refused to refund any money but council's treatment of her contrasts starkly with the treatment accorded to the director…"

33 The other MCL employees who had prepared the documentation on which Mr Zdraveski had worked and had signed off on it had received counselling with no loss of earnings. Mr Zdraveski had been dismissed. But it was Mr Zdraveski who performed the isolation procedure and, to my mind, his conduct is more serious. Also he already was on a final warning over safety issues, whilst the other employees apparently did not have any record of safety breaches on their employment records.

34 But in assessing whether to dismiss any employee, it is also appropriate that the employer take into account all the circumstances surrounding the incident which prompted the dismissal, including mitigating factors - in this case, as far as Mr Zdraveski is concerned, his lengthy period of what appears to me to be relatively satisfactory employment in the steelworks up to the time he received the final warning over safety issues in the middle of 2006 and his acknowledgement (belatedly) that he had made a mistake. Watson J of the former Commission commented in that respect in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 at p.233 that:

"…in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But 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…"

It must be appreciated that dismissal of an employee is, as the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor C) described it in Pacific Power v. Crump (1993) 48 IR 296 at p.302, "...the ultimate sanction..." in disciplining an employee.

35 Mr Neilson has pressed a claim under S.89(1) for Mr Zdraveski's reinstatement in employment in the MCL. Reinstatement in employment is the primary remedy for an unfairly dismissed employee. In Plummer v. Stannard Brothers Launch Service Pty Limited (2005) 145 IR 111 the Full Bench of the Commission (Wright J - President, Boland J and Stanton) commented in that respect (at p.115): "...Reinstatement is the primary remedy under S.89 of the Act: Burge v. BHP Steel Pty Limited (2001) 105 IR 325; Little v. Commissioner of Police (No.2) (2002) 112 IR 212; Humphries v. Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider S.89(5) requires the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited v. Burnard (1993) 49 IR 446 at p.453..." 36 Mr Dearden has argued in his submissions that BlueScope Steel management had lost trust in Mr Zdraveski to comply with the essential requirements of safety for work in the steelworks. The task he was directed to perform on Tuesday, 13 November, 2007 which led to his dismissal was not complex work, involving only six isolation locks, and Mr Brain is concerned over his conduct when he may be directed to perform more complex tasks, involving considerably more isolation locks. 37 The question of trust, which Mr Dearden emphasised in his submissions, is essential in every employment relationship and it is clearly a matter which has to be weighed in the balance in assessing the practicability of reinstatement. But as the Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) commented in Burge v. BHP Steel Pty Limited (at pp.345 and 346):

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

38 In the circumstances, I consider that it would be appropriate to reinstate Mr Zdraveski in employment in the MCL. But I have reached that conclusion not without some misgivings. Mr Zdraveski was already on a final warning over an earlier serious breach of safety. He was on notice that what was expected of him was an improvement in his attitude to workplace safety. He claimed that as part of the three month review of his safety performance following the earlier incident he has continuously been praised by BlueScope Steel management for his work ethic and commitment to safety. He renews that commitment in his evidence in this hearing. But that commitment, made after the event, has got to be more than just words by Mr Zdraveski. 39 Mr Zdraveski 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 Zdraveski 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.

(a) reinstate Mr Mick Zdraveski in employment as a fitter in the metal coating lines;

(b) take his employment not to have been broken by his dismissal.

This order shall take effect on and from Friday, 23 May, 2008

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.

[2007] NSWIRComm 1028

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