Mr Kenneth Stephens v Australian Paper Pty Ltd T/A Australian Paper - [2010] FWA 9824

[2010] FWA 9824

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Kenneth Stephens
v
Australian Paper Pty Ltd T/A Australian Paper
(U2010/1491)

COMMISSIONER ROE

MELBOURNE, 24 DECEMBER 2010

Termination of employment - misconduct.

[1] This decision concerns an application by Kenneth Stephens (the Applicant) pursuant to Section 394 of the Fair Work Act 2009 (the Act) for relief for alleged unfair dismissal by Paper Australia Pty Ltd T/A Australian Paper Pty Ltd (the Respondent). The Application was the subject of unsuccessful conciliation. Directions for the parties to file materials were issued and complied with, and the matter was heard in Moe, Victoria on 13 and 14 December 2010. The parties elected to proceed by way of hearing.

[2] The Applicant was represented by his union, the Construction, Forestry, Mining and Energy Union (CFMEU), and the Respondent was represented by Mr Andrew Farr of Lander and Rogers Lawyers. The CFMEU did not oppose the appearance of Mr Farr and I granted leave for him to appear.

[3] The Applicant was dismissed on 6 September 2010 following alleged serious misconduct on 18 August 2010.

[4] The Applicant gave evidence. Mr Ian Kurrle, who is employed by Australian Paper and works as a refiner and was working on the permit desk responding to queries concerning Plant Clearance Certificates (P.C.C) on 18 August 2010, also gave evidence for the Applicant.

[5] The following witnesses gave evidence for the Respondent:

Mr Brendan Jilbert who is the M1/M2 Paper Machine Manager for the Respondent. He was responsible for overseeing the issuing and signing off of Plant Clearance Certificates (P.C.C) on 18 August 2010 from 4pm onwards. He provided photographic evidence of the events of 18 August 2010. 1

Mr Dragi Eric who is the Production Superintendent for the Respondent at the Maryvale Mill. He was on duty in the area of the M1 Paper Machine on the day shift on 18 August 2010 and had some responsibility for organising the shut down work on that day. He was responsible for overseeing the issuing and signing off of Plant Clearance Certificates on 18 August 2010 from 4am to 4pm. 2

Mr Peter Guy who is the Health and Safety Manager for the Respondent at the Maryvale Mill. Mr Guy was asked by Mr Wayne Hobson to conduct interviews with those involved in the events of 18 August 2010 including the Applicant and the notes of those interviews were provided as evidence. 3

Mr Wayne Hobson who is the Crew 5 Shift Manager - Brown Papers for the Respondent and who was responsible for organising the crew, overseeing the crew and general coordination of production. The Applicant reported directly to Mr Hobson. Mr Hobson made the initial investigation of the incidents of 18 August 2010 and also made the initial decision to terminate the Applicant in a meeting with the Applicant and his CFMEU representative on 5 September 2010. 4

Mr David Johnson who is a Manufacturing Manager for the Respondent at the Maryvale Mill. Mr Johnson heard an internal appeal on 5 September 2010 against the disciplinary sanction ordered by Mr Wayne Hobson against the Applicant arising from the events of 18 August 2010. Mr Johnson made the final decision to dismiss the Applicant. Mr Johnson was also involved in the development of the site Disciplinary Procedure which was utilised in the dismissal of the Applicant. 5

Mr Locandro who is the Crew 1 Shift Manager for the Respondent. Mr Locandro gave evidence concerning earlier disciplinary matters concerning the Applicant.

Mr Edward Trickett who is the General Manager Paper for the Respondent. Mr Trickett provided a witness statement but was not available for cross examination. 6 The witness statement was accepted into evidence with the agreement of the parties; however, the CFMEU argued that little weight should be given to point 16 of that statement which was Mr Trickett’s opinion on the appropriateness of the disciplinary sanction made against the Applicant as a result of the events of 18 August 2010.

[6] The parties agreed to the following matters and I am satisfied that:

The Respondent is a national system employer.

An enterprise agreement, the Australian Paper Agreement 2010-2012 applies to both the Respondent and the Applicant. That Agreement was approved by Fair Work Australia on 16 June 2010. 7

The Respondent is not a small business employer as defined in Section 23 of the Fair Work Act 2009.

The Applicant had more than 25 years continuous service with the Respondent and is 47 years of age.

The Applicant was dismissed at the initiative of the employer on 6 September 2010.

The dismissal was not a genuine redundancy.

At the time of the dismissal the Applicant was a Senior Operator of the M1 Paper Machine and his gross earnings were $1,861.88 per week.

[7] There is jurisdiction to deal with the Applicant’s unfair dismissal application.

[8] The Applicant accepted that the criteria for considering whether or not a dismissal was harsh, unjust or unreasonable in Sections 387(b) to (g) are not of relevance in the circumstances of this case. The Applicant was clearly notified of the reasons for the dismissal, was given an opportunity to respond to that reason, did have a union representative present, and was clearly advised and trained in the relevant policies and procedures. The Respondent is a large employer with dedicated human resource management specialists. The relevant criteria I have regard to in this case are set out in Sections 387(a) and (h) namely whether or not there was a valid reason for dismissal related to the Applicant’s capacity or conduct and any other matters that Fair Work Australia considers relevant.

[9] The Respondent’s reasons for dismissing the Applicant are as follows:

a) Serious misconduct in failing to sign on to the Plant Clearance Certificate (P.C.C) on 18 August 2010 whilst performing work in an area covered by a P.C.C placing himself and/or others in imminent and serious risk to their health and safety.

b) Poor work performance as a Senior Operator due to allowing his crew to work on the same task on 18 August 2010 without them being signed on to the P.C.C. The Respondent stated that this was contrary to the duty to ensure all safety conditions and practices are observed as set out in the Applicant’s position description.

c) The previous disciplinary record of the Applicant which made dismissal the appropriate sanction in accordance with the Disciplinary Policy applicable at the Maryvale plant.

[10] I am satisfied that the Applicant was clearly advised that these were the reasons for the dismissal.

The events of 18 August 2010.

[11] It is not in dispute that on 18 August 2010 three or four members of the Applicant’s work crew were involved in working to lower and then raise the Breast Roll at the wet end of the M1 Paper Machine. It is also not in dispute that shut down maintenance on the M1 Paper Machine was occurring on 18 August 2010 and as a result the whole of the wet end of the M1 Paper Machine was shut down and isolated. It is also not in dispute that the original plan for the maintenance work did not include the lowering and raising of the Breast Roll. It became evident during the maintenance shut work that this additional work was required to be performed. 8

[12] To shut down and isolate the wet end of the machine the safety procedures required that a P.C.C be created. This certificate verified that the shut down had occurred properly to enable maintenance work to commence. Under the policy it is clear that all persons who are then required to work on the part of the machine covered by the P.C.C must sign on to the P.C.C whilst the P.C.C is in force. The P.C.C is removed once the work is completed and the machine cannot be restarted until the P.C.C is removed. The procedure is designed to achieve a number of objectives including that:

a person does not perform maintenance work on the machine when it is not shut down and isolated;

there is a clear record and knowledge of who is working on the machine when it is shut down and isolated;

those who are working on the machine are aware of the appropriate procedures; and

“a written Job Safety Analysis (JSA) has been completed prior to the work beginning and recording the JSA number on the P.C.C or the Record of JSA Form”. 9

[13] I am satisfied that the failure to sign on to the P.C.C would not have become a disciplinary matter except for the fact that an incident occurred during the raising of the Breast Roll. The lowering of the Breast Roll occurred in the morning without incident. Following the raising of the Breast Roll in the afternoon a crane was being used to move away the equipment which had been used to facilitate the lift when, because the steel sling cable had not been disconnected from the Breast Roll on one side, the steel sling cable snapped causing a very loud sound. Fortunately, no one was injured, the fabric belt on the M1 Paper Machine was not damaged and no other equipment was damaged. However, it was properly a matter of considerable concern and there was an immediate investigation of the incident. During this investigation it was discovered that some of the employees, including the Applicant, who had been working on lifting the Breast Roll had not signed on to the P.C.C.

[14] The incident which caused the breaking of the sling cable was not the failure to sign on to the P.C.C since the machine was already properly isolated. The CFMEU and the Applicant submitted that there was no written procedure or Job Safety Analysis for the process of lowering and raising the Breast Roll. 10 The accuracy of the CFMEU submission was confirmed by Wayne Hobson who was the senior manager in charge at the time of the incident as the Crew 5 Shift Manager. Wayne Hobson conducted an investigation immediately after the incident and in his report he stated “lifting procedure for this action I could not find”.11 The Respondent submitted in the proceedings that the Training Module for the M1 Paper Machine12 contained a procedure for Breast Roll dismantling. However, I accept the evidence of the Applicant that this procedure related to the Fabric Change Procedure which the Applicant had previously been involved in and not to the process of lowering and raising the Breast Roll to relieve tension on the fabric to enable access for maintenance workers. The Applicant also said that the documentation had not been updated to reflect significant changes made to the M1 Paper Machine around 2005 including to the area around the Breast Roll.13

[15] In this case the failure to sign on to the P.C.C did not put the workers in imminent and serious danger because the area was clearly isolated and the evidence showed that persons with the responsibility to oversight the P.C.C system and with the responsibility for lifting the P.C.C, Mr Eric and then Mr Jilbert, were aware that the work was proceeding. It is not likely that the responsible person would not have signed off to lift the P.C.C and the isolation whilst the work was continuing on the roll. However, it is never possible to predict with certainty when a failure to sign on to the P.C.C would not put workers at serious risk and there are many situations where such a failure would put workers at serious risk.

[16] I am satisfied that the absence of a Job Safety Analysis for this process was a much more significant factor in the risk to health and safety associated with this incident than the failure to sign on to the P.C.C.

[17] It is not in dispute that two members of the Applicant’s work crew, other than the Applicant, failed to sign on to the P.C.C prior to commencing the work of lowering and raising the Breast Roll. Those two members of the work crew were subject to disciplinary action under the company discipline policy and were sanctioned but not dismissed as a result.

The work carried out by the Applicant without signing on to the P.C.C

[18] It is not in dispute that the Applicant performed some of the work of raising the Breast Roll. It was not suggested that he performed any work on the lowering of the Breast Roll earlier in the day on 18 August 2010. The Respondent submitted that the Applicant had denied working on the Breast Roll during the investigation of the incident and that the Applicant had only reluctantly admitted to working on the Breast Roll during the proceedings before Fair Work Australia. The Respondent submitted that this was a basis on which I should find that the Applicant was an unreliable witness and that where there was a conflict between his evidence and that of the management witnesses I should prefer the management witnesses. I do not accept this submission.

[19] Peter Guy was directed by Wayne Hobson to collect evidence in relation to the 18 August 2010 incident. The Applicant clearly stated in his interview with Peter Guy, conducted on 27 August 2010, that he did perform some work in raising the Breast Roll. The work that he described doing in that statement is consistent with the work he described doing in the evidence given in the proceedings before Fair Work Australia. 14

[20] The earlier investigation report by Wayne Hobson, Crew 5 Shift Manager, immediately after the incident also refers to the Applicant carrying out work raising the Breast Roll. There is no suggestion in that investigation report of Wayne Hobson that the Applicant denied doing any work. This suggests that the Applicant did not deny doing any work particularly because a number of other comments made by the Applicant are included in Wayne Hobson’s report. 15 Mr Hobson in his witness statement confirms that the Applicant at the disciplinary meeting on 5 September 2010 did not deny the accuracy of his earlier statement to Peter Guy that he had assisted with the work.16 Mr Hobson also confirms that the Applicant said that he did not believe he needed to sign on to the P.C.C because he was being an observer.17

[21] In the outline of submissions of the CFMEU it is stated that the Applicant was not working on the Breast Roll but was an observer to make sure that there was no damage to the fabric on the paper machine. In the witness statement of the Applicant 18 he states that he took an oversight role to ensure that there was no damage to the fabric.19

[22] I am satisfied that the position of the Applicant has been consistently that he did not intend to work on the lowering or raising of the Breast Roll and that he was instructed by Mr Hobson to provide general oversight to the work of his team who were split into different groups that day doing different work in different parts of the plant. 20 It was for this reason he said he did not believe it was necessary for him to sign on to the P.C.C. The Applicant’s evidence has been that despite the expectation that he would not be doing hands on work he unexpectedly found it necessary to assist in the raising of the Breast Roll to ensure that there were adequate resources for the job to be done safely.

[23] I am satisfied that the policy which applies to Plant Clearance Certificates (P.C.C) was known to the Applicant. I am also satisfied that since 18 August 2010 was a day for shut down maintenance and the wet end of the M1 Paper Machine was not operating, the Applicant would have been well aware that a P.C.C was in operation for work on the wet end of the M1 Paper Machine on that day. I am also satisfied that it is a clear requirement for any person who is working on plant covered by the P.C.C to sign on to the P.C.C prior to working on the plant. The Applicant in his evidence to the Tribunal accepted that he should have signed on to the P.C.C. Mr Kurrle, who gave evidence for the Applicant, accepted that anyone who worked on the plant covered by the P.C.C was obliged to sign on before performing any work on that plant and that this was well known to employees. 21

[24] Two matters were raised on behalf of the Applicant in mitigation. Firstly, that he did not expect to be working on the raising of the Breast Roll; and secondly, that the actions were out of character in that he did not have a poor record in respect to following health and safety policy and procedures.

[25] The Applicant’s evidence to the Tribunal was that Scott Hill and Gary Moule were working on one side of the lift and that Glenn Hunt and Jason Kroon were working on the other side. He noticed that Jason Kroon had disappeared from the area and so he stepped in to help Glenn Hunt. It was his view that it was unsafe for Glenn Hunt to control the crane and also manage other activities on one side of the lift single handed. The Applicant did not mention the role of Jason Kroon in the statement he gave to the investigator Peter Guy following the incident. In that statement he told Peter Guy that prior to the raising of the Breast Roll “There was an opportunity to lift the Breast Roll back into position so I said to Glenn Hunt “let’s grab Gary (Moule) and Scott (Hill) and get this done”. 22

[26] Scott Hill in his statement to the investigator Peter Guy stated that “Jason Kroon was moving between the front side and the back side of the machine and I believe he was involved in the activity in some way”. 23 I accept this evidence as there is no reason I can see why Scott Hill would include Jason Kroon in his list of people involved if this were not the case.

[27] Wayne Hobson, the Crew 5 Shift Manager, who conducted the investigation immediately after the incident and prior to the more detailed taking of statements by Peter Guy, did identify the Applicant, Glenn Hunt, Scott Hill, Gary Moule and Jason Kroon as the persons relevant to the incident and interviewed all those employees. 24 However, he makes no finding in respect to Jason Kroon. If the Applicant’s evidence were correct then this is not surprising as the Applicant says that Jason Kroon had disappeared once the lift got underway. However, the report of Wayne Hobson lends support to the evidence of the Applicant that Jason Kroon was involved.

[28] Peter Guy took statements from Gary Moule, Scott Hill, the Applicant and Colin Hasthorpe who was on the Permit Table as the P.C.C coordinator at the time. He did not take a statement from Jason Kroon.

[29] The CFMEU did not seek to call Jason Kroon, Gary Moule, Scott Hill or Glenn Hunt as witnesses in the proceedings.

[30] The Applicant gave evidence that he was approached by Dragi Eric and was informed about the request from the maintenance crew to lower and raise the Breast Roll. The Applicant gave evidence that he told Dragi Eric that this was not the usual way to relieve tension on the fabric to enable maintenance to proceed and outlined what he understood was the usual way. The Applicant included the same point in his interview with Peter Guy on 27 August 2010. 25 Dragi Eric in evidence to the Tribunal denied that this conversation took place. Several management witnesses gave evidence that the maintenance crew were going to undertake the lowering and raising of the Breast Roll themselves but that an unidentified person had intervened on behalf of the operators to say that it was properly the work of the operators not the maintenance contractors.26 It is not necessary to determine which of these accounts is correct since both of them confirm that the work was not planned and the involvement of the operators in the Applicant’s crew was at short notice.

[31] In my view there is no doubt that the raising and lowering of the Breast Roll by operators in the Applicant’s crew was not a planned activity and the need for the activity arose at short notice. However, these are precisely the sort of situations where adherence to safety procedures is most important. These are the situations where it is most likely that something could go wrong.

[32] I am satisfied that the Applicant was guilty of failing to sign on to the P.C.C prior to working on the raising of the Breast Roll. I accept the evidence of the Applicant that even after he became aware of the need for the lowering and raising of the Breast Roll he did not expect to have to personally do hands on work raising or lowering the Breast Roll and that he did not work on the lowering of the Breast Roll. I am also satisfied that he intervened to assist at short notice when he saw that Glenn Hunt was working alone operating the crane and also managing one side of the lift. I accept on the balance of probabilities that he expected that Jason Kroon would have been providing that assistance.

[33] However, I am also satisfied that the Applicant could at any stage have instructed Glenn Hunt and the other employees to stop work on lifting the Breast Roll so that he could sign on to the P.C.C before commencing work to assist in the process. There was nothing in the evidence presented by the Applicant to suggest that such a pause would have caused any safety or other problem. Even if the Applicant did not expect to work on the Breast Roll and only did so at short notice this does little to reduce his responsibility for failing to sign on to the P.C.C.

[34] I accept the submission of the CFMEU that the Applicant did not have a bad safety record. There was no evidence from Management witnesses that the Applicant had ever failed to sign on to the P.C.C on a previous occasion nor any evidence that the Applicant ignored safety procedures. The only previous incident regarding safety occurred in 2007 and was accepted by management at the time as minor. The Applicant gave evidence that he accidentally left his safety glasses in his car and was confronted when he entered the main gate of the plant without wearing them and discovered that they were not in his pocket. 27 I accept his evidence that this was an understandable and isolated incident of oversight. There is no suggestion that the Applicant was working on plant or equipment without safety glasses or was intending to work without safety glasses.

[35] I accept the submission of the Respondent that because the Applicant was a Senior Operator responsible for the work of others, the failure to follow safety policy and procedures is a more serious breach because of the affect it may have on respect for those policies and procedures amongst the workforce more generally.

Was the Applicant required to sign on to the P.C.C even if not working on the equipment?

[36] The Respondent submitted that the Applicant was required to sign on to the P.C.C even if he was not actually working on the equipment covered by it and that therefore by implication no regard should be had to the argument that the Applicant had not expected to work on the equipment.

[37] I am satisfied that the P.C.C policy 28 requires that the workgroup leader must sign on to the P.C.C even if not physically working on the plant.29 This was also accepted by Mr Kurrle who gave evidence for the Applicant.30 The Applicant’s evidence in respect to this was that Glenn Hunt as the qualified rigger was the work group leader for the task of lifting the Breast Roll. Glenn Hunt was the person who was responsible to ensure that the job was done safely and properly and he directed the work of the others including the Applicant in the process. Management evidence suggested that the Senior Operator was the work group leader for those in his/her team. The evidence in respect to this matter was not in my view conclusive.

[38] I am satisfied that who is properly regarded as the work group leader can vary according to the work that is being performed. The Applicant said that he was directed on that day to have a general oversight and observer role in respect to his crew and that he could not be regarded as the work group leader for these disparate groups. 31 It is understandable that the normal lines of authority did not apply because it was a shut down environment not a production environment. An examination of the P.C.C policy and procedures32 shows that Senior Operator and work group leader are distinctly different roles in respect to management of P.C.Cs. There is a requirement for operators when signing on to the P.C.C to also indicate who is their work group leader for the operation they will perform covered by the P.C.C.33 It is clear from the evidence that at least one of the operators Gary Moule involved in the Breast Roll lift had signed on to the P.C.C for the wet end of the M-1 paper machine on 18 August 2010. A copy of the P.C.C sign on book was produced in evidence34 and it clearly shows that Gary Moule is signed on to the P.C.C for the wet end of the M-1 paper machine and that his work group leader is a person who witnessed Gary Moule’s signature with the initials C.J. No employee has signed on indicating that their work group leader is a person with the initials of the Applicant, G.S.

[39] On balance I am satisfied that it was not clear that the Applicant was the work group leader for the task of lifting the Breast Roll and therefore not clear that he was obligated to sign on to the P.C.C for that reason.

[40] During the discipline process the Respondent did not rely on the requirement that a workgroup leader must sign on to the P.C.C even if not physically working on the plant. The charge laid against the Applicant was that he was working on the plant and failed to sign on to the P.C.C. The evidence of Peter Guy, Wayne Hobson and David Johnson did not suggest that the charge was anything other than that the Applicant had failed to sign on when physically working on the plant. There was no mention in any of the disciplinary material or reports of his failure to sign on as a work group leader even if not physically working on the plant.

[41] My view in respect to this matter is reinforced by the notes made by Wayne Hobson during the disciplinary hearing he conducted on 5 September 2010. In those notes Wayne Hobson says “I was happy with Ken’s performance through the day. I organised Ray Hadgkiss to raise/lower the Breast Roll but when Ray went over someone had organised Glenn Hunt.” The evidence was that Ray Hadgkiss was the work group leader for the fitters’ maintenance crew operating during the shutdown on that day. 35 These comments reinforce my view that it was reasonable for the Applicant to believe that Glenn Hunt was the person responsible for the work lifting and lowering the Breast Roll.

The second charge- failing to ensure others were signed on to the P.C.C.

[42] The second charge arising from the events of 18 August 2010 related to the alleged failure of the Applicant to ensure that Glenn Hunt and Scott Hill signed on to the P.C.C prior to working on the lifting of the Breast Roll. The basis of this charge was that in management’s view, as a Senior Operator, the Applicant had a responsibility to ensure that all safety procedures were followed and that the failure to do this was a work performance issue. 36

[43] Wayne Hobson produced a position description for a Senior Operator which included responsibility for maintaining a safe working environment and ensuring that safety regulations and practices are observed. The Applicant said that he had never seen the position description. However, I am satisfied that the role of a Senior Operator would include such general responsibilities. I am satisfied that the Applicant was aware of his responsibility to ensure that safety regulations and practices are observed. I accept that if a Senior Operator knew that an employee in their crew was not following a safety practice or procedure, including signing on to the P.C.C, this would justify disciplinary action. However, there is inadequate evidence that this was the case and I therefore have significant doubts as to the validity of this second charge.

[44] There is no suggestion that the Applicant was closely involved in the initial lowering of the Breast Roll. He was aware that the activity was taking place and he authorised the group of employees to carry out the task and he was generally overseeing the work. 37 One of the employees involved, Gary Moule, was signed on to the P.C.C.38 There is no suggestion that the Applicant encouraged the other workers not to sign on to the P.C.C. There was no evidence led, nor any submission, that suggested that the Applicant was aware that the other workers had not signed on to the P.C.C.

[45] There was no evidence before me that it was the normal practice that Senior Operators were required to be proactive in checking that all their team members were signed on to the P.C.C. The Respondent did not elicit any such evidence from the management witnesses. There is nothing requiring such a proactive approach in the position description for the Senior Operators. The P.C.C policy and procedures 39 certainly require that work group leaders have extensive responsibilities in respect of those working under them in a P.C.C environment but it does not explicitly state that they must proactively check that each worker is signed on to the P.C.C. Mr Kurrle who was working at the permit desk on 18 August 2010 gave evidence that it was common practice for the operator on the permit desk to witness the signature of the those signing on to the P.C.C rather than the workers regular work group leader.40 In any case I have earlier found that it is not clear that the Applicant was a work group leader in this context. The Applicant and Mr Kurrle have given evidence that signing on to the P.C.C was an individual responsibility.41

[46] In a situation where team members are dispersed to different areas of the plant during a dynamic situation such as a plant shut down it is not obvious that such a proactive approach by Senior Operators to checking that each worker was signed on to the P.C.C would be practical. It is not clear that a general requirement to ensure that safety regulations and practices are observed can be interpreted to mean that there must be proactive checking that each team member is signed on to the P.C.C as opposed to a requirement to take action in a situation where the Senior Operator became aware of a problem or should reasonably have been aware of a problem.

Conclusions in respect to the events of 18 August 2010

[47] My conclusions are that:

Separate sanction for failing to ensure that other operators were signed on to the P.C.C was not justified in the circumstances of this case because there is no evidence that the Applicant was aware that the other operators were not signed in and there is inadequate evidence that he had an obligation in the circumstances of this case to have made himself aware that the other operators were not signed in.

The appropriate sanction for the Applicant not signing on to the P.C.C should be higher than for the other workers involved because he was the Senior Operator and is responsible for setting an example in following safety practices and procedures.

The action of the Applicant in failing to sign on to the P.C.C arose because he was not expecting to perform the task and stepped in at the last minute. However, he was well aware of the need to sign on to the P.C.C and could have signed on to the P.C.C.

There is no evidence that the Applicant had previously failed to sign on to the P.C.C or that he had a tendency to disregard safety policy and procedures.

There was no evidence that the failure to sign on to the P.C.C in this case contributed to the snapping of the sling cable or that it created a situation of serious and imminent danger to the health and safety of the Applicant or other workers. However, failure to respect and follow safety policy and procedures is a serious matter and there are many situations where failure to sign on to the P.C.C could lead to serious and imminent danger to the health and safety of workers. Allowing the policy of signing on to the P.C.C to be breached does make the workplace less safe and increases the danger to the health and safety of workers including the Applicant.

The discipline procedure

[48] Clause 58 of the Australian Paper Agreement 2010-2012 provides as follows:

“The parties have agreed to a list of binding agreements, policies and procedures which are not specifically referred to in the body of the EBA. That list is contained in the document titled “AP Maryvale Mill and CFMEU Agreed Documents”. The most recently dated version of “AP Maryvale Mill and CFMEU Agreed Documents” that has been signed by both parties will be the binding list.”

[49] The CFMEU and the Respondent submitted that the document “AP-Maryvale Mill CFMEU Agreed Disciplinary Procedure” 42 was a binding agreement pursuant to Clause 58 of the Australian Paper Agreement 2010-2012. The parties submitted that the policy was binding on the parties as a result of that Agreement.

[50] I accept that I should have strong regard to the policy in the circumstances of this case. The policy in my view is a reasonable policy. Employees and managers of the Respondent understood that discipline is regulated by the policy. If the dismissal is consistent with that policy then it is more likely that I will find that there is a valid reason for the dismissal. However, I am still required to make an independent assessment based upon the circumstances of the case as to whether or not there is a valid reason for the dismissal and then an assessment as to whether or not the dismissal is unfair.

[51] The policy provides for seven levels of sanction as follows:

Level 0 Clear Record

Level 1 Informal Talk

Level 2 Formal Reprimand

Level 3 First Written Warning

Level 4 Second Written Warning

Level 5 Final Written Warning

Level 6 Suspension without pay (Shift work, 4 shifts/ Day work 5 days)

Level 7 Termination of Employment. 43

An individual will step down one level for each period of 6 months that expires without an additional breach being recorded”. 44

[52] The policy provides that there are seven separate forms, each of which is headed with the title of one of the levels of sanction listed above. The policy provides that the individual and the Union must be provided with a copy of the form when completed.

[53] The policy provides for three levels of offence:

Minor breaches which are described as including, amongst other things, excessive absenteeism, poor work performance, abusive language, and being late for work. The sanction for a minor breach is a one Level sanction.

Major breaches which are defined as more serious than a minor breach but less serious than serious misconduct. The sanction for a major breach is a two Level sanction if the individual is already on Levels 0 to 4 and a one Level sanction if the individual is already at Level 5 or 6.

Serious misconduct which is defined as including wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment; conduct which causes an imminent and serious risk to the health and safety of any person or to the reputation, viability or profitability of the company’s business; assault; fighting; theft; fraud; wilful damage; refusal to carry out lawful and reasonable instructions; and wilful neglect of duty, rules or instructions leading to injury, endangering others, endangering the environment or damage to machinery or equipment. “A person charged with serious misconduct will be suspended with full pay pending a hearing”. Following the hearing if the charge is proven:

“the manager is not compelled to dismiss the individual concerned. The Manager may move the individual to any level on the hierarchy of penalties if he/she decides that the serious misconduct does not warrant dismissal.” 45

[54] The policy provides for an appeal to another manager against any decision to apply a sanction.

[55] “Individuals are entitled to have a union representative present at any step within the disciplinary process. If the individual refuses to have a Union representative present then they must sign a waiver to this effect. If they refuse to sign the waiver then a Union representative will become involved to witness the fact that the individual is refusing representation and refusing to sign the waiver to this effect.” 46

[56] The forms for each level of sanction provide for the manager and the employee to sign. The forms also provide for either the union representative to sign, or for the employee to sign that he/she waives the right to representation, or for the union representative to witness that the employee has declined union representation and has also refused to sign to this effect.

The evidence concerning the application of the discipline procedure.

[57] The evidence clearly demonstrated that the various managers had quite different interpretations of how the disciplinary process worked. The evidence also demonstrated that in respect to the Applicant the disciplinary process had not in all cases been conducted in a consistent manner or in a manner consistent with the policy.

[58] The CFMEU on behalf of the Applicant argued that this was an important reason why I should find that the sanction imposed upon the Applicant was unfair and disproportionate to the offence.

[59] The CFMEU did not call relevant union delegates or officials to give evidence as to how the policy should be interpreted and to the level of consistency and inconsistency with which the policy had in fact been applied at the plant. The Applicant gave evidence that even though he had been a union delegate he did not know how the policy worked in some respects.

[60] Mr Johnson gave evidence as to the meaning of the policy. He gave evidence that he had considerable experience in applying the policy and was directly involved in drafting the policy and finalising it in conjunction with the CFMEU. I accept the evidence of Mr Johnson in this regard. His evidence in my view is consistent with a reasonable reading of the words of the policy.

[61] In my view it is hard to understand how the other managers could have misinterpreted the policy and how they could have misapplied the policy.

[62] A plain reading of the policy confirms that each charge must be clearly defined as either a minor breach, a major breach or serious misconduct. The policy cannot work effectively without this. However, the evidence clearly showed that this was not done consistently by managers. It appears that some managers felt that they had discretion to determine the number of penalty Levels appropriate for any given offence whereas the policy only provides that discretion in relation to a charge of serious misconduct.

[63] The Applicant gave evidence that it was common for employees to be awarded more than one Level penalty for minor breaches contrary to policy. 47 Mr Jilbert understood that managers were at large to determine the penalty Level for offences.48 Mr Locandro thought he had discretion to “decide which part of the scale we use to discipline people.”49 He contended this was the case even if it was not a charge of serious misconduct.

[64] To avoid a repeat of the situation which has arisen in this case I urge the CFMEU and the Respondent to ensure that the Forms and the discipline record are amended to ensure that the category of charge - minor, major or serious misconduct are clearly identified next to each charge and that this is also advised to the employee at the time a charge is laid.

[65] The managers on a number of occasions did not fill out the correct Form which corresponded to the Level in the hierarchy the employee was on after the application of a new sanction. Some managers thought that the Levels in the hierarchy only applied in the case of minor offences. Some managers thought that the Form they should fill in was the Form appropriate to the Level of sanction they were applying to the particular offence they were dealing with in isolation. However, regardless of how they interpreted the policy they did not apply their interpretation of the policy consistently or accurately.

[66] Mr Jilbert thought that an employee was awarded the penalty allocated to the latest offence regardless of whether they had a clean record at that time or not. He thought that the penalty levels were only relevant if the employee had a clean record or committed a minor offence. 50 Mr Hobson was similarly confused about how penalties should apply.51 Mr Locandro was also convinced that the Form that should be used and the penalty issued was the penalty appropriate to the latest offence regardless of whether the employee had a clean record at the time or not.52

[67] A reasonable reading of the policy and the evidence of Mr Johnson confirms that the Level of sanction which should be applied to a particular offence is arrived at by taking the Level which the employee is at in the hierarchy of Levels at the time of the new offence (taking into account the fact that an individual steps back a Level for every six months without a new sanction) and then adding to that the Level of sanction determined for the new offence. The employee should then be issued with the Form and the sanction applicable to the employee’s new Level. 53

[68] An example illustrates the problems with the alternative approach adopted by some managers. If an employee who commits a Level 3 offence but who already was at Level 3 was to receive a form headed First Written Warning but the actual sanction he/she received is one week’s suspension from duty (the sanction for Level 6) this would be very confusing.

[69] An example illustrates how the discipline system is applied according to the evidence of Mr Johnson and based in my view on a fair reading of the policy. If an employee was on Level 2 and they commit an offence which the manager alleges constitutes serious misconduct then the employee must be suspended whist the matter is investigated and then if the offence is proven the manager may determine the level of sanction. If for example, the manager determines that a three Level sanction is appropriate then the employee will move to a Level 5 and the employee should receive a Form headed Final Written Warning and then a sanction of a final written warning.

[70] Mr Johnson who was the author of the discipline policy for the management agreed that the wrong Forms had been used in several cases on the Applicant’s discipline record. 54 He accepted that this could lead to some doubt as to whether it was the wrong Form that had been used or whether in fact it was the wrong level penalty which had been put on the record.55

[71] The CFMEU submitted that the policy was not implemented fairly by the Respondent because the appeals step of the process was corrupted. The CFMEU produced no evidence in respect to the application of the policy in any other case than that of the Applicant. Hence no general conclusions can be drawn. However, I am satisfied that there is some force in the submission of the CFMEU in the case of the Applicant. Mr Hobson says that he consulted Mr Johnson about the appropriateness of the penalty he proposed to award to the Applicant in respect to the 18 August 2010 incident a few days after the incident and prior to the completion of the interviews by Mr Guy. 56 Mr Hobson said that Mr Johnson approved of the penalty he was proposing to award.57

“So this is the person doing the appeal, he’s already ticked off on the original decision maker’s decision? Yes” 58

[72] Mr Johnson conducted the appeal against the decision of Mr Hobson and confirmed the appropriateness of the penalty determined by Mr Hobson. Mr Johnson could not remember the conversation between himself and Mr Hobson about the penalty despite the fact that he remembered other fine details about the incident. Mr Johnson denied that the conversation occurred. I prefer the evidence of Mr Hobson in this respect. Mr Johnson was not consistent in his response under cross examination in respect to this matter.

[73] I am satisfied that the appeals process cannot be fair where the person applying the original penalty seeks prior approval for his decision from the superior manager who will be conducting the appeal.

The discipline record of the Applicant.

[74] The discipline report for the Applicant 59 has six entries which can be summarised as follows:

1. A one Level penalty on 16 September 2004 for poor work performance. The correct “informal talk” Form was filled out and the Form is signed by the Applicant, the manager (Paul Locandro) and the union representative. The penalty was for the production of out of specification product.

2. A one Level penalty on 14 May 2007 for not wearing safety glasses. The incorrect Form was filled out. At the time the Applicant had a clear record as it was more than six months since the previous offence and so the correct Form should have been Level one “informal talk” but instead the Level two Form was used “notification of a formal reprimand”. The Form was signed by the Applicant and the manager (Paul Locandro). The Applicant signed that he waived the right to have a union representative.

3. A three Level penalty on 27 October 2007 for failure to notify an absence and excessive absenteeism. Nowhere on the Form or the record does it suggest that the Applicant was charged with serious misconduct. It is alleged that the Applicant failed to notify he would not be attending work on 7 October 2007 and that he had had a total of 9 days of absence during a 12 month period, 7 of which were individual days without a certificate. Employees are allowed 4 individual days without a certificate in a year. In the previous three years the Applicant had a total of 4 days sick leave for the entire period. The incorrect Form was filled out. If a three point penalty had been awarded the correct Form should have been Level 4, Second written warning, given that the Applicant already had one Level still on his record. However, a Level 3 First Written Warning Form was filled out and issued. The Form was signed by the Applicant and the manager (Paul Locandro). The Applicant signed that he waived the right to have a union representative.

4. A four Level penalty on 15 January 2009 which was reduced to a three Level penalty on appeal on 17 January 2009 for serious misconduct due to loss of product caused by incorrect adjustments and settings on machine. The Applicant was suspended pending the investigation of the charge. At the time of this penalty the Applicant was on Level 2. The correct Level 6 Form “notification of suspension” was filled out on 15 January 2009 although the Level was subsequently reduced by one on appeal. The Applicant strenuously denied the charge and refused to sign the Form. The Form was signed by the manager Paul Locandro and by the union representative.

5. A one Level penalty on 23 December 2009 for poor work performance due to an incorrect adjustment to the machine which led to loss of product. The Applicant was on Level 4 at the time so the correct Form should have been a Level 5 Final Written Warning. However, the incorrect form was filled out. A Level 3 First Written Warning Form was used. The record states that a six Level penalty was given in error which was corrected to a two Level penalty and then reduced to one Level on appeal. However, there is no record of any appeal. The form is signed by Paul Locandro as the manager but there is no other signature on the form.

6. A five Level penalty on 5 September 2010 due to serious misconduct on 18 August 2010 due to failure to sign the P.C.C (a three Level penalty was awarded); and a second charge of poor work performance due to failure to ensure all safety regulations were observed as per his position description (a two Level penalty was awarded). The Form noted that the Applicant was on Level 4 at the time of the offence. The correct Termination of Employment Form was used. The Form was signed by the manager Wayne Hobson and by the union representative. The Form clearly identified the first charge as a charge of serious misconduct. The second charge was identified as concerning poor work performance not serious misconduct.

[75] I take no account of the first two entries on the discipline record. I have no reason to believe that the sanctions applied in these cases were inappropriate. These records were not challenged by the Applicant, were viewed by the Respondent as minor matters and the matters occurred too long ago to be relevant in all of the circumstances.

[76] I have some concerns in respect to the third entry on the discipline record which was a three Level sanction issued in respect to absenteeism and failure to notify an absence. I accept the evidence of the Respondent that the failure to notify absence led to loss of production.

[77] The Applicant gave evidence that he was so incapacitated that he could not ring to advise of his inability to attend work. I certainly accept the evidence that the Applicant had not previously failed to notify non-attendance and the evidence that he was seriously ill. However, having considered the evidence of Mr Locandro and the Applicant I am not satisfied that it was impossible for the Applicant to ring work.

[78] Mr Locandro gave evidence that the three Level penalty was arrived at by allocating a two Level penalty for failure to notify an absence and a one Level penalty for excessive absenteeism. That is one major breach and one minor breach. However, there is nothing on the record about minor and major breach.

[79] The Applicant thought that he had been awarded a three Level penalty for failing to notify the absence. 60 It is clear from the discipline policy that a three Level penalty can only be awarded for serious misconduct. The Respondent suggested that this incident was regarded as serious misconduct.61 However, the evidence of Mr Locandro does not support this. I am satisfied that Mr Locandro, like a number of other managers, ignored the wording of the policy and felt that they were at large to determine the number of penalty Levels to be awarded as a sanction for any offence despite the clear wording of the policy requiring that breaches be defined as minor, major or serious misconduct.

[80] Mr Johnson accepted that there was some doubt about whether or not there had been a two Level penalty or a three Level penalty issued because of the form which had been used. 62 Mr Johnson was not sure whether it was the absenteeism or the failure to notify which was the major breach and said that one was a major breach because there had been a previous breach of the requirement in respect of absenteeism or notification of absence.63 It is clear from the documentation that the Applicant had a good attendance record and that there had been no second offence for excessive absenteeism or failure to notify an absence.

[81] Mr Locandro gave evidence that he was so concerned when the Applicant failed to notify his absence that he went around to the Applicant’s house but that the Applicant did not respond to his knock on the door. Mr Locandro then contacted the police and asked them to go around to the Applicant’s residence to check on him. Mr Locandro gave evidence that the police did in fact visit the residence and rang him back to say that the Applicant was at home. I regard this as supporting the conclusion that the failure by the Applicant to notify his absence was very much out of character.

[82] Given the lack of understanding of the process by relevant managers and the fact that the wrong Level warning was in fact issued and documented this must place some doubt about the penalty applied in this case. It appears rather harsh to impose a penalty for excessive absenteeism on a long serving employee with a previously good attendance record in addition to the penalty for failing to notify an absence.

[83] The Applicant gave evidence that he was not in fact ill on some of the occasions when he took days off without a medical certificate during 2007. However, there is no evidence that this was raised as a problem by management at the time.

[84] The evidence is clear that neither the Applicant nor the CFMEU challenged the validity of the penalty issued at the time.

[85] I am satisfied that the fourth entry on the discipline record was advised to the Applicant at the time as being serious misconduct and that it was therefore open to the Respondent to apply the three Level penalty in accordance with policy. The Applicant argued that the loss of production and the incorrect machine adjustments resulted because the Standard Operating Procedures (SOP) did not work effectively to deal with the situation. He gave evidence that the SOP did not provide a solution to the problem which was leading to production loss and that too much low grade input was also being utilised at that time and that the production loss was therefore not his fault. I accept that this was the sincerely held view of the Applicant and that this explains why he refused to sign or accept the disciplinary outcome.

[86] The Applicant claimed that other employees had faced the same problem as he had but the Applicant did not give any details. 64 The CFMEU did not lead any evidence from other employees or union representatives to confirm that there was a problem with the Standard Operating Procedures (SOP) or the material input or that the problem was in fact experienced by other employees. The evidence of the relevant manager, Mr Locandro, was that the same problem had not occurred with other senior operators on different shifts. The Applicant accepted the evidence of management that the only reason why the penalty for this offence had been reduced from four levels to three levels on appeal was that Mr Locandro had made an error in stating that the 80 tonne production loss had occurred on one shift when in fact it occurred over two consecutive shifts.65

[87] The correct form was filled out in this case in accordance with the policy. I am therefore satisfied that the penalty in this case was appropriately applied in accordance with the policy.

[88] The fifth entry on the disciplinary record was a one Level sanction issued in respect to poor work performance in November/December 2009. It was not issued in accordance with the policy - that is the document was not signed by either the Applicant or the CFMEU. The Applicant initially denied he was aware of the December warning. The Respondent gave direct evidence from the manager, Mr Locandro, who gave the warning that the warning did in fact occur. I believe that the December 2009 warning did occur.

[89] Mr Locandro produced detailed documentation of the 20.2 tonnes production loss on 12 December 2009 and the details of the incorrect adjustments made. 66 He also produced a note suggesting that he had also warned the Applicant for a similar incident which led to a 16.5 tonnes production loss shortly before this on 17 November 2009.67 Mr Locandro gave evidence that there were two incorrect adjustments involved in the January 2009 serious misconduct incident (the fourth entry in the discipline record) and that one of the same incorrect adjustments was involved in the November and December 2009 incidents.68

[90] The Applicant agreed that there was an incident of production loss due to incorrect adjustments following the January 2009 incident which had led to the serious misconduct charge (the fourth entry in the discipline record). He said that this incident resulted in a 20 tonne loss of production. 69 He said that this incident occurred not long after the previous incident. However, under cross examination he conceded that it was the same incident as the one to which Mr Locandro referred and which occurred in December 2009.70 The Applicant continued to deny that the verbal warning and the incident of production loss on 17 November 2009 occurred. The Applicant accepted that he was warned in December 2009 but says that it should not be accepted because there was no proper paper work and the proper procedure was not followed.71

[91] The records and Mr Locandro suggest that a penalty of two levels was issued taking into account the verbal warning of 17 November 2009 and that this was reduced to one Level on appeal. However, there is no documentation or other evidence of any appeal. I am not satisfied that there was any proper appeal involving the Applicant.

[92] The Applicant has conceded that the loss of production due to incorrect adjustment did occur in December 2009. Both the Applicant and the Respondent agree the loss in December 2009 was, in part, for the same reason that led to the loss of production and serious misconduct charge in January 2009. The evidence supports a conclusion that the Applicant was responsible for the loss in January 2009 and was appropriately sanctioned for it.

[93] However, the breach of procedure in this instance is not some minor technicality. I cannot be satisfied that the Applicant was given a proper opportunity at the time to respond to the allegation against him or that any response was properly considered.

[94] The sixth entry on the discipline record relates to the events of 18 August 2010 which led to the dismissal of the Applicant. The correct Form was used and it has been signed by the union representative. There were three breaches of the disciplinary policy and procedure in respect to the handling of the charges in respect to the events of 18 August 2010.

Firstly, as discussed earlier I believe that the appeal process was unfair.

Secondly, two penalty Levels were awarded in respect to the second charge when only one penalty level was possible under the policy for a charge of major breach when the employee is above Level 4 in the hierarchy.

Thirdly, the Applicant was not suspended immediately following the initial investigation of the incident as required by policy if there is a charge of serious misconduct.

[95] The failure to suspend could put a question mark over whether or not the Applicant was clearly advised that he was being charged with serious misconduct. However, the evidence suggests that the Applicant was made aware it was a serious misconduct charge and of the seriousness of the investigation and the possible consequences and hence I do not regard the failure to suspend the Applicant as significant.

[96] Mr Johnson clearly regarded the first charge concerning failure to sign on to the P.C.C as a charge of serious misconduct and the second charge as being separate and not a serious misconduct charge. 72

[97] I have found earlier that a separate penalty for the charge of failing to ensure others were signed on to the P.C.C was not properly established.

[98] It is necessary to establish whether or not the offence of failing to sign on to the P.C.C constituted serious misconduct in accordance with the policy.

[99] The Respondent argued that the actions of the Applicant in failing to sign on to the P.C.C were serious misconduct in accordance with the definition in the disciplinary policy in that they constituted:

conduct which causes an imminent and serious risk to the health and safety of any person;

refusal to carry out lawful and reasonable instructions;

wilful neglect of duty, rules or instructions endangering others.

[100] I do not accept that the Applicant’s actions were a refusal to carry out an instruction.

[101] I do accept that failure to carry out a safety policy or procedure is a serious matter. However, the CFMEU submitted that in this case the failure did not put the workers in serious imminent danger. As discussed earlier in this decision, I doubt that the action in this case did create an imminent and serious risk. However, failure to sign on to the P.C.C in many situations would create such a risk and it is not possible or appropriate to predict in advance which situations may create such a risk. There is no doubt failure to sign on to the P.C.C endangered the Applicant and other workers.

[102] I accept the submission of the Respondent that the failure of the Applicant to sign on to the P.C.C constituted wilful neglect of duty, rules or instructions endangering others. I am satisfied that the Applicant knew he should have signed on to the P.C.C and failed to do so. The failure to sign on to the P.C.C had the potential to weaken or compromise the safety systems in the plant. The Applicant and the Respondent were aware that several workers have died in industrial accidents at the Maryvale plant. 73 Action which weakens or compromises safety systems in this situation must be regarded as justifying a charge of serious misconduct in accordance with the disciplinary policy.

[103] The other two workers who failed to sign on to the P.C.C on 18 August 2010 were awarded a three Level penalty. The appropriateness of this penalty was not challenged by the CFMEU.

[104] Mr Hobson who initially determined the penalty for the Applicant in respect to the 18 August 2010 events said that he carefully considered the penalty issued in respect to a previous incident of failing to sign on to the P.C.C involving Mr Eugene Benc approximately a year earlier. Other managers involved also referred to this. Mr Hobson gave evidence that in the case of Mr Benc he entered into a confined space of a machine to clean it out when the machine was not isolated, when there was no P.C.C in place and of course when there was no sign on to a P.C.C. Mr Benc was issued with a five Level penalty. 74 Mr Hobson conceded that the actions of Mr Benc were significantly more serious than those of the Applicant. Mr Benc by working inside a machine without putting in place isolation and a P.C.C put himself and possibly others in imminent danger of serious injury or death. In contrast, the machine which the Applicant worked on was properly isolated and covered by a P.C.C.75

[105] Mr Hobson said that because the incident was not as serious he awarded only 3 penalty Levels for each of the employees, including the Applicant, for failing to sign on to the P.C.C. 76 However, the Applicant was awarded a five Level penalty as a result of the second charge of failing to ensure others were signed on to the P.C.C. In effect this means that the Applicant received the same penalty as Mr Benc for a single course of conduct. In my judgment it is hard to equate the actions of the Applicant with the extremely serious breach of safety policy attributed to Mr Benc.

[106] For the reasons stated earlier, I am satisfied that the appropriate sanction for the Applicant not signing on to the P.C.C should be higher than for the other workers involved because he was the Senior Operator and is responsible for setting an example in following safety practices and procedures.

[107] The Applicant was awarded a penalty of three Levels for failing to sign on to the P.C.C and two Levels for failure to ensure others were signed on. As discussed earlier I do not regard the second penalty as appropriate. Therefore, I judge that a penalty of four Levels, not five Levels, under the plant disciplinary procedure was appropriate in respect of the actions of the Applicant on 18 August 2010. .

[108] The Applicant was on Level 4 in the plant disciplinary system according to the Applicant’s record. As discussed above, the process adopted by management in the awarding of sanctions against the Applicant involved a number of breaches of the plant disciplinary policy and procedures. I had particularly serious concerns about the breach of procedure in respect to the penalties awarded in respect to the third and fifth entries on the Applicant’s discipline record. I therefore judge that the Applicant should properly have been at Level 3 in the plant disciplinary system.

[109] Hence under the plant disciplinary system my assessment is that the Applicant could have been moved, following consideration of the incident of 18 August 2010, to Level 7 which is the level at which employees are dismissed.

Valid reason for dismissal.

[110] Based on the plant disciplinary system there was a valid reason for dismissal.

[111] If there had been no plant disciplinary system I am satisfied that the misconduct involved in failing to sign on to the P.C.C when combined with the earlier proved misconduct and suspension concerning poor work performance leading to loss of product in January 2009 and the acknowledged further production loss in December 2009 provided a valid reason for dismissal.

[112] The Applicant in his evidence suggested that he was treated unfairly and punished more severely because he had raised breaches of safety procedures by management personnel. The CFMEU did not bring any evidence to support this contention. In the absence of further evidence I do not consider this matter can alter my judgment that there was a valid reason for the dismissal. The Applicant has been a union delegate. The CFMEU did not make any submission that suggested that the Applicant had been treated unfairly or harshly because of his union role.

Was the dismissal harsh, unreasonable, or unjust.

[113] The case for the Applicant was essentially that the dismissal was harsh for two reasons:

Firstly, the CFMEU argued that the penalty was disproportionate. The CFMEU relied upon the inconsistency of interpretation and application of the internal disciplinary procedure and the arbitrary nature of the penalties allocated. I concluded that the CFMEU’s submissions about the flawed implementation of the internal disciplinary procedure had some force. That is why I have earlier in this decision assessed what would have been an appropriate outcome had the process been properly applied. I have concluded that had the process been properly applied dismissal would still have been an appropriate outcome.

Secondly, the CFMEU argued that dismissal was harsh because it was important to take into account the personal circumstances of the Applicant and the impact the dismissal would have on him. In respect to this submission it was pointed out by the Applicant that the situation of the Applicant was similar to the situation of the applicant in Paul Quinlivan v Norske Skog Paper Mills (Australia) Ltd which was decided by Vice President Lawler in February 2010. 77 VP Lawler found that in the circumstances of that case there was a valid reason for dismissal but that the impact on the dismissed worker was so significant that the decision to dismiss was harsh. I concur with the approach of VP Lawler in that case. A similar approach was taken by Commissioner Bissett in Richards v Regional Express Holdings T/A Rex Airlines.78 The decision to reinstate the Applicant in that case was upheld on appeal although the full bench did grant permission to appeal and found some errors in the decision of Commissioner Bissett. The Appeal bench did not however disturb the finding that although there was a valid reason for dismissal the termination was harsh because in the circumstances the penalty was disproportionate to the misconduct. The circumstances included the impact of the Respondent’s dismissal upon him financially and emotionally and the lack of employment prospects.79

[114] The CFMEU pointed to the following factors which were not disputed and which I accept are relevant considerations in assessing whether the affect of the dismissal on the Applicant is particularly severe. These are relevant considerations as to whether or not the dismissal is harsh:

The Applicant was employed for more than 25 years with the Respondent;

The Applicant had never been unemployed since he was 17 years of age and hence the experience of unemployment would be particularly harsh;

The Applicant has no trade qualifications;

The Applicant has a mortgage;

The Applicant lives in an area of high unemployment for mature age males;

The pay rates for non-trades workers at the Respondent are significantly above market rates. The Applicant is unlikely to be able to obtain employment in the future at a similar pay level to that he has enjoyed with the Respondent.

The paper manufacturing industry is a small one and the Applicant is unlikely to find further employment in that industry.

[115] The CFMEU also submitted that the Applicant was a valued employee and that his separation from his work colleagues would result in a significant loss to the Applicant and other employees. Management witnesses accepted that there was a sense of loss due to the termination of the Applicant. 80 Mr Eric agreed that the Applicant was a popular member of the team, that the Applicant got along with other workers and that there were no problems with Mr Eric’s relationship with the Applicant.81 However, the same management witnesses gave evidence that they thought that the penalty imposed on the Applicant was appropriate and that they had lost trust and confidence in the Applicant because of his actions. I accept that given the regional location and significant size of the plant combined with the length of service of the Applicant, the Applicant will suffer significant loss due to separation from his work colleagues.

[116] I do not accept the submission of the Respondent that their trust in the Applicant is broken irreversibly. Mr Hobson said that he had lost trust in the Applicant as Senior Operator but would not have the same view if the Applicant was an operator. 82 If the Applicant was reinstated I am confident that the relationship would be restored. The management witnesses generally showed respect for the Applicant and his service to the Respondent.

[117] The situation of the Applicant in this case has many similarities but it is also distinguishable from the Quinlivan case decided by VP Lawler:

The Applicant and Paul Quinlivan are of similar age. The major issue in both dismissals related to failure to follow safety policy and procedures. Both employees were employed in the pulp and paper industry. Both were employed in regional centres. Both had more than 20 years service with the same large employer. Both had some earlier issues in their disciplinary record. Both had significant mortgages. Both do not have trade qualifications.

The Applicant is single with grown up children and is in a less vulnerable situation than Quinlivan who is married with two daughters aged 9 and 11 and whose wife suffers from depression.

I judge that the Applicant in this case has significantly better future employment prospects than Quinlivan. Quinlivan had made serious efforts to find work over a lengthy period following his dismissal and was largely unsuccessful. Quinlivan was employed as an operator in the warehouse. The Applicant did not make any efforts to find employment for some five weeks after the dismissal. He then found casual work without delay which has continued since then. The Applicant has learnt significant clerical and computing skills. The Applicant has been employed for a significant period as a senior operator.

The previous disciplinary record of the Applicant in this case is more problematic than the previous disciplinary record of Quinlivan The Applicant was suspended from duty in January 2009 on a charge of serious misconduct and I am satisfied that there were further problems with his performance related to similar issues in December 2009.

There was no evidence in the Quinlivan case of a detailed industrial agreement regulating the plant disciplinary procedure. In this case the dismissal outcome is reinforced by the requirements of that industrial agreement.

The Applicant was in a position of responsibility as a senior operator. He was responsible for the supervision of a team of other workers. His responsibility for safety policy and procedures is therefore more onerous and the breach is more significant. There is also a greater necessity for trust and confidence between the employer and the employee to be maintained.

The action of Quinlivan which was found by VP Lawler to constitute misconduct was his refusal to wear personal protective equipment. This action put the health and safety of Quinlivan at risk and also constituted refusal to obey instructions. The action of the Applicant which I have found constituted misconduct was his failure to sign on to the P.C.C. This action put the health and safety of the Applicant and other workers at risk and also constituted a failure to follow known policy instructions.

[118] I am not bound by the decision of VP Lawler in the Quinlivan case. However, comparing the situation in these two cases with rather similar circumstances has assisted me in making the judgment required in this case as to whether or not the dismissal was harsh or disproportionate.

[119] I have found that there was a valid reason for the dismissal. I did have some concerns about the fairness of the process used, particularly the independence of the internal appeal and the inconsistent approach to the allocation of penalties. However, after allowing for those factors I was satisfied that the dismissal was not unjust or unreasonable. I have carefully considered whether, notwithstanding this, the dismissal could be regarded as harsh or disproportionate.

[120] On balance I cannot find that the dismissal was harsh in the circumstances of this case.

[121] The Application is dismissed.

COMMISSIONER

Appearances:

Mr Timothy Wetherell of the Construction, Forestry, Mining and Energy Union (CFMEU) for the Applicant.

Mr Andrew Farr of Lander and Rogers Lawyers for the Respondent.

Hearing details:

13, 14 December

Melbourne

2010

1 Exhibit AP-1.

2 Exhibit AP-2.

3 Exhibit AP-3.

4 Exhibit AP-4.

5 Exhibit AP-5.

6 Exhibit AP-6.

7 2010 FWA 4475.

8 Exhibit AP-4, Annexure WH-1.

9 Exhibit S-5 Maryvale Mill Plant Clearance Certificate and Confined Space Entry Permit Responsibilities - page 5 responsibilities of work group leader.

10 Exhibit S-2, Paragraph 21.

11 Exhibit AP-4, Annexure WH-1.

12 Exhibit S-3, page 88.

13 Exhibit S-2, Paragraphs 2 to 25.

14 Exhibit AP-3, Annexure PG-1.

15 Exhibit AP-4, Attachment WH-1.

16 Ibid at Paragraph 26 and 27.

17 Ibid at Paragraph 25.

18 Exhibit S-2.

19 Ibid at Paragraph 19.

20 PN169.

21 PN109 to PN110 and PN135.

22 Exhibit AP-4, Annexure WH-2.

23 Ibid.

24 Ibid at Annexure WH-1.

25 Ibid at Annexure WH-2.

26 PN815 and PN964.

27 PN250.

28 Exhibit S-5.

29 Ibid at page 5.

30 PN130.

31 PN334.

32 Exhibits S-4 and S-5.

33 Exhibit S-4, Section 4.24, page 16.

34 Exhibit AP-1, Annexure BJ-1.

35 Exhibit AP-4, Attachment WH-7 and Paragraph 25.

36 Exhibit AP-5, Paragraphs 17 and 18, and Exhibit AP-4, Paragraphs 12, 18, 22, and 23.

37 PN174.

38 Exhibit AP-4, Annexure WH-2.

39 Exhibits S-4 and S-5.

40 PN128 to PN129.

41 PN93.

42 Annexure WH-5, Exhibit AP-4.

43 Ibid.

44 Ibid.

45 Ibid.

46 Ibid.

47 PN547.

48 PN127.

49 PN1392 to PN1393.

50 PN736, PN738 and PN741.

51 PN1068

52 PN1404.

53 PN1108 to PN1125.

54 PN1177.

55 PN1205 and PN1209 to PN1212.

56 PN1056 and PN1060.

57 PN1050.

58 PN1053.

59 Exhibit AP-4, Annexure WH-8.

60 PN258.

61 PN550 to PN554.

62 PN1209 to PN1212.

63 PN1205.

64 PN518.

65 PN523.

66 PN1306.

67 PN1305.

68 PN1356 to PN1360

69 PN270.

70 PN494 to PN495.

71 PN497 to PN501 and PN505.

72 PN1221.

73 For example evidence of Mr Eric at PN859 to PN860.

74 PN958.

75 PN973.

76 PN984 to PN987.

77 2010 FWA 883.

78 2010 FWA 4230.

79 2010 FWAFB 8753, Paragraph 6.

80 PN1046.

81 PN847 to PN849.

82 PN1021.

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