Mr Michael Duncan v Bluescope Steel Ltd T/A Bluescope Steel

[2013] FWC 8142

[2013] FWC 8142

FAIR WORK COMMISSION

DECISION

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

Mr Michael Duncan
v
Bluescope Steel Ltd T/A Bluescope Steel
(U2013/9747)

COMMISSIONER RIORDAN SYDNEY, 4 NOVEMBER 2013

[1] This decision relates to an application lodged on 14 May 2013 by Mr Michael Duncan, pursuant to section 394 of the Fair Work Act (the Act) in relation to an alleged unfair termination of his employment by Bluescope Steel Limited T/A Bluescope Steel (Bluescope).

[2] The hearing was conducted on 14 and 15 August 2013. Mr Duncan was represented by Mr Aron Neilson from Maurice Blackburn Lawyers. Bluescope was represented by Mr Aaron Dearden from Duncan Cotterill Lawyers.

The Incident - A Brief Summation

[3] There were four Heating Regulator Operators on day shift on 23 April 2013 working on Battery 5 and Battery 6 of Coke Plant 1. On this shift Mr Duncan was the gallery man, (which meant that he was assigned duties on the plant for the day such as greasing, etc). Mr Nardone was the gas watcher (which meant that he was supervising the contractors working on the plant). Mr Milne was the Control Room Operator for Number 6 Battery and Mr Troiano was the Control Room Operator for Number 5 Battery. The employees are “self supervised” which means that they coordinate their own meal breaks, work schedule, etc.

[4] Whilst Mr Duncan was eating his lunch in the Control Room with his back to the Control Panel, a gas alarm sounded on Number 6 Battery. Mr Milne attended to it and then left the Control Room to take temperatures on the Battery. The alarm sounded again and Mr Nardone, who had finished his lunch, responded to the alarm and then left the Control Room. The alarm then went off again. Mr Milne and Mr Nardone were out of the Control Room at this point. Neither Mr Troiano or Mr Duncan attended to the alarm. Bluescope believe that Mr Duncan breached a critical procedure, a cardinal rule, by continuing to eat his lunch rather than attending to the alarm. Mr Duncan argued that the alarm was the responsibility of Mr Troiano who had responsibility for the Control Room at the time.

[5] Mr Duncan has been employed by Bluescope (or its predecessors) for 23 years. He was an experienced Regulator Operator on the Number 6 Battery at Port Kembla.

[6] A detailed investigation was undertaken by Mr Landon Ronay, who is the Operations Manager, Coke Plant 1, at Bluescope. He issued Mr Duncan with a “Show Cause” letter on 3 May 2013. It read;

“Dear Michael

OUTCOME OF INVESTIGATION

As you are know the Company has been conducting an investigation into a serious safety incident you were involved in on the day shift, commencing 23 April 2013, when you allegedly failed to respond to an alarm raised by a remote atmospheric Carbon Monoxide (CO) gas monitor for 6 Battery. Of the two regulators present in the Control Room at the time, you were the only 6 Battery Regulator.

You have told us that your explanation for this incident is that:

● You believed that the cause of the alarm was an Enriched Blast Furnace Gas (EBFG) leak from the 698 Gas Box flaps or mushroom valve spindle that could be fixed by ‘greasing’ the stem of the mushroom valve or the flaps of the Gas Box’s. In your opinion, both Brett Milne and Richard Nardone, other 6 Battery Regulators, should have resolved the issue by ‘greasing’ when previous alarms sounded earlier that day that they acknowledged and monitored.

● You believe it was the responsibility of Walter Troiano, 5 Battery Regulator, to respond to the alarm as:

• Responsibility for the control room had been handed over to him by Mr Milne, another 6 Battery Regulator who was not present at the time of the unanswered alarm.



• You were on your lunch break

• You believe you should not have responded to the alarm as, you were not intending to be in the control room when Mr Milne was due to return to the control room.



• You believe the relationship between Mr Nardone and Mr Troiano contributed to the incident as Mr Nardone will not talk to Mr Troiano with the exception of work related matters.




The Company has investigated your explanations and advises you of the findings of this investigation.

• Every gas alarm requires a response in line with the critical procedure SP-CB-2FGSIST-14 ‘Respond to Basement Gas Monitoring Alarms on No. 5 & 6 Batteries’, whether it has alarmed previously or not.



• You are fully trained and accredited in this critical procedure and it is an integral part of your role as part of the Battery Heating Team to perform it as required.



• By your own statement you admit that you never checked the alarm condition to determine the amount or location of the CO reading at the time, as you are required to do in line with the critical procedure.



• You were aware that nobody was responding to the alarm. Regardless of this, you chose not to respond to the gas alarm in a manner consistent with the critical procedure.



• During the investigation you stated that Mr Troiano was responsible for responding to the alarm, and that you had informed him of this on one occasion and stated this in front of him on two separate occasions when third parties were present. The investigation found this to be untrue.



• Evidence, including your own, suggests that Mr Troiano believed that Mr Nardone was responding to the alarm. However, you knew this not to be true and at no stage did you communicate this to Mr Troiano or anyone else.



• You claimed that Mr Milne had handed ‘control’ of the 6 Battery Heating over to Mr Troiano. However the investigation has found that this did not occur.



• A gas alarm is a critical alarm covered by a critical procedure that relates to the safety of people present on the plant and must assume a higher priority than finishing lunch. The flexibility, time requirement and self managed nature of your work on that day would have allowed you to both respond to the alarm and then continue with your meal break.



• Any communication issues between Mr Nardone and Mr Troiano may have affected Mr Troiano’s understanding of the situation in regards to the gas alarm, but they clearly did not affect your understanding, as you state you believed you knew where Mr Nardone was and what he was doing.



• In conducting a thorough investigation, the company officers conducted interviews with relevant personnel. Based on all the evidence available, the company has concluded that your evidence was generally inconsistent with other witness’s and your evidence was misleading.




The investigation into this incident has now concluded. The investigation has established that:

● You had a responsibility to respond to the gas alarm as per the critical procedure
● You knew that nobody else was in fact responding to the alarm
● You did not make any attempts to respond to, or even check the alarm, and instead relied on assumptions as to the cause and severity of the alarm
● You mislead the investigation with your evidence

We confirm that you have breach a Coke Plant 1 Critical Safety Procedure, and BlueScope Steel’s Life Preserving Principles (Cardinal Rules). You also knowingly attempted to apportion the blame for the incident on others and lied during the course of the investigation.

It is apparent that you are unable to demonstrate the safety behaviours required of you as a Heating Regulator for the Coke Plant 1 department to safely respond to critical alarms and comply with a Critical Safety procedure. Because of this behaviour the Company is no longer able to trust you. Consequently, the Company is seriously considering terminating your employment on the grounds of serious misconduct for a serious safety breach.

Accordingly, the Company invites you to raise any matter as to why the Company should not terminate your employment. After your response, all of the evidence available to the Company will be given careful consideration and a final decision will be made regarding your ongoing employment with the Company.

Yours sincerely

Landon Ronay

Coke Plant 1 Operations Manager”

[7] With the assistance of his Union Organiser, Mr Duncan responded verbally fifteen minutes later and in writing within two hours. The Union asked for Bluescope’s decision later that day due to Mr Duncan’s distressed state.

[8] After considering this response Bluescope terminated Mr Duncan later on 3 May 2013;

“3 May 2013

Dear Mr Duncan,

Re: Termination of Employment for Serious Misconduct

This is to advise you of the termination of your employment from BlueScope Steel (AIS) Pty Ltd effective immediately, Friday 3 May 2013, for serious misconduct. This termination is due to failing to follow the Company’s Life Preserving Principles (Cardinal Rules) when you deliberately and knowingly did not follow a critical safety procedure, and for providing misleading information during the course of the investigation.

After carefully considering all of the relevant information, we conclude that your continuing employment with the Company is no longer tenable. The Company considers that your actions constitute serious misconduct warranting summary dismissal.

You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter. HR Assist, Adelaide, will be in contact with you to finalise any payroll, superannuation and other administrative arrangements.

Yours sincerely,

Landon Ronay

Coke Plant 1 Operations Manager”

[9] There has been a longstanding practice between the parties that wages employees are not called as witnesses by the employer against a fellow employee. Whilst the relatively new Secretary of the Australia Workers Union, Port Kembla Branch was unaware of this arrangement, I can see the pragmatism and benefit of such an approach. As such, whilst some of Mr Ronay’s evidence might be regarded as “hearsay” in a normal context, I am prepared to accept the veracity of his evidence based on his integrity and the longstanding practice.

[10] In considering whether the dismissal of Mr Duncan was harsh, unjust or unreasonable, I am required to take into account the relevant provisions of the Fair Work Act, 2009 (the Act).

Part 3-2 Unfair Dismissal

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant,”

[11] In determining this application I have taken into account all of the submissions of the parties.

Section 387(a) - valid reason

[12] Bluescope alleged that Mr Duncan had deliberately breached a critical procedure which is a major safety issue at the plant. Mr Duncan acknowledged that, as an experienced Regulator Operator, he had been trained on this procedure, that working safely was a condition of his employment and that by not responding to the gas alarm that he had breached the relevant critical procedure. 1

[13] Bluescope’s critical safety procedures have been put in place to protect its employees and plant. Noncompliance of these procedures cannot and should not be tolerated. Breaches of these procedures, whether deliberate or not, may constitute a valid reason for termination.

[14] Mr Duncan argued that there were mitigating factors and reasons why he did not respond to the alarm.

[15] In Qantas Airways Ltd v Cornwall 2, the Full Court of the Federal Court said;

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 3

In Edwards v Giudice 4, in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relation Act;

“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.” 5

(My emphasis)

[16] In Byrne v Australian Airlines 6, the High Court endorsed the decision of Doussa J in Lane v Arrowcrest Group Pty Ltd (1990);7

“Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weight against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.” 8

(My emphasis)

[17] Whilst this decision is predominantly relied upon as support for an employer’s entitlement to rely on facts discovered after the termination of employment, it also highlights the requirement for an employer to make an appropriate level of enquiry in relation to the facts of a case before an employee is terminated. Mr Ronay has conducted a lengthy investigation into this incident. However, I am satisfied on the facts that there were significant gaps and errors in the investigation process due to the inexperience of Mr Ronay in conducting these types of investigations. Questions that should have been asked were not asked, individuals were present at interviews as witnesses when they should have been identified as being conflicted and conclusions were drawn from information that appears to have had no substance.

[18] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne sets the parameters for these types of determinations;

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...” 9

[19] There are a number of issues which emanate from a consideration of whether or not there was “a valid reason” in this circumstance.

(a) Was Mr Duncan the responsible employee in the Control Room for Number 6 battery when Mr Milne was out of the Control Room?

The evidence shows that Mr Duncan, Mr Milne and their immediate supervisor, Mr Fleming, all believed that Mr Troiano was the responsible employee in the Control Room when Mr Milne was out of the Room and the relevant alarm went off.  10 I agree.

[20] It is the practice of the employees that when one of the two assigned Control Room Operators who are rostered on that shift leave the Control Room, that the other Operator takes control of both batteries. Mr Ronay’s notes of his meeting with Mr Troiano on 23 April 2013 (LR13) support this notion.

“Walter (Troiano) had been up taking temperatures from 12:40 to 1:15 approximately. Had asked Brett to look after Control Room when he was out, as is normal practice. Mick Duncan and Richard Nardone were also in Control Room”.

[21] This evidence categorically supports the proposition that Mr Troiano knew and adopted the normal practice. Otherwise he would have asked Mr Duncan or Mr Nardone to look after his Battery whilst he was absent. Later in the interview Mr Troiano contradicts his statement in a manner which I find to be self serving and unconvincing.

[22] I accept the evidence of Mr Duncan that when Mr Troiano came back into the Control Room, Mr Milne made comments along the following lines:

“Wally, are you finished upstairs?’ Walter replied ‘Yes”. Brett replied ‘Because I’m going upstairs’ and ‘Are you all right?’ and Walter replied ‘Yes”.

[23] I am satisfied that this exchange signalled to Mr Troiano that Mr Milne was about to leave the Control Room and he expected Mr Troiano to watch his Battery. There is no other plausible explanation for his comments and it fits with the widely accepted practice at Bluescope.

[24] After lengthy questioning Mr Ronay accepted this is the standard practice 11 but his acceptance is in conflict with his correspondence of 3 May 2013.

b) Was Mr Duncan the only Heating Regulator Operator at fault in this circumstance? The clear answer is no. Mr Troiano should have investigated the alarm, or if he was too busy, he should have asked Mr Duncan to check it for him. Mr Milne, after hearing an alarm shortly after leaving the Control Room, should have immediately returned. He knew of the on-going problems with the equipment that day. The same alarm had gone off a number of times immediately before his departure to take temperature readings. Bluescope were entitled to expect Mr Milne to act in a more professional manner. Mr Nardone dealt with the alarm that Mr Milne had heard. He waited for the gas reading to fall to an appropriate level then returned to his assigned duties on the plant. However, Mr Nardone did not tell Mr Troiano of his intentions due to a personality clash between the pair. They rarely communicate. Mr Troiano was of the opinion that Mr Nardone was going to investigate the alarm. On the basis that Mr Troiano was in charge of the Control Room, Mr Nardone was obligated to tell Mr Troiano the status of the alarm before he left the Room so that he could report the incident to Mr Milne on his return. This childish behaviour by both men could have led to a serious safety accident and has resulted in one of their colleagues being summarily dismissed.

[25] I accept the advice of Mr Fleming that once the gas alarm reads over 50ppm (parts per million) that the Operator should physically investigate the issue. Neither Mr Milne or Mr Nardone complied with this requirement.

[26] I accept the evidence that this gas alarm was a “nuisance” alarm. 12 This piece of equipment has been an engineering problem that has been the subject of at least two staff inspired projects to rectify the problem over the last decade, the latest an invention by Mr Fleming.13

[27] I accept the evidence of Mr Duncan that the success of the greasing of the equipment on a daily basis determines the frequency of the alarms. All of the Battery 6 Regulators admitted to not reporting the alarm in the appropriate manner every time it sounded. I am satisfied that this inactivity would have undoubtedly been a point of discussion throughout the years amongst the crew. It would appear to be a deliberate and collective practice.

[28] I do not accept that Mr Duncan has a poor or blase attitude. He offered to look after the Number 6 Battery for Mr Milne at 12.45pm so that he could take temperatures. This offer from Mr Duncan does not display the characteristics of an employee with a poor attitude. Mr Milne declined the offer and said that he would go at 1.15pm. Mr Duncan advised that he would be eating lunch at that point. Mr Ronay supports the notion of every Regulator eating their lunch without disruption unless there is an emergency. 14

[29] Mr Ronay accepted the evidence of Mr Troiano over that of every other employee - even though he knew him to be a unreliable witness:

“Mr Troiano often volunteers information, whether it is accurate or not” 15

[30] Mr Troiano’s comments are inconsistent. He has a poor recollection of events and discussions. He has a habit of fabricating facts. His comments are contrary to the views of other staff - including his Supervisor’s, yet Mr Ronay still used his recollections to be one of the reasons for concluding that Mr Duncan should be dismissed.

[31] Both Mr Fleming and Mr Ronay agreed that employees should be treated consistently. 16 That has not occurred in this situation. The other three employees were all guilty of non compliance with the relevant procedure yet only Mr Duncan has been the subject of serious disciplinary action.

[32] I am not satisfied that there was a valid reason for the termination of Mr Duncan’s employment in that, even though he failed to comply with critical safety procedures, there were significant mitigating factors. Even if Mr Duncan’s actions were deemed to be a valid reason for his summary dismissal, such an outcome would still be harsh, unjust or unreasonable for the reasons detailed in this decision.

b) Notified of the Reason

[33] Mr Duncan was notified of the reason for his dismissal following the investigation by Mr Ronay by way of a letter on 3 May 2013.

c) Opportunity to Respond

[34] Mr Duncan was given an opportunity to “Show Cause” why he shouldn’t be dismissed on 3 May 2013. Although, it is worth noting that when conducting the investigation, Mr Ronay interviewed Mr Duncan’s colleagues on two occasions compared to his single interview of Mr Duncan.

d) Attendance of support person

[35] Mr Duncan had a support person present.

e) Previous Warnings

[36] Mr Duncan received a final warning and a three day suspension in 2010. Whilst it is relevant, I find that a warning given three years ago is of consequence but of little weight due to its currency. It is the only warning that Mr Duncan has been given in more than twenty years employment. The disciplinary outcomes in Bluescope are best described as inconsistent. Final warnings can also include shift suspensions of 1, 3, 4 or 5 days and employees have been known to receive multiple final warnings. Coincidentally, penalties appear to be handed out in a rather subjective manner with little regard for consistency. A final warning in Bluescope does not seem to have the same meaning as the broader industrial community.

f) Size of Employer

[37] Bluescope is a large employer

g) Human Resources Management

[38] Bluescope has a dedicated and experienced HR Department. If anything, the involvement of HR in this process was too late. As I have commented above, there are numerous and obvious questions that should have been asked to a number of Mr Duncan’s colleagues that were simply not raised. If the practise of not calling employees to testify against a fellow employee is to continue, then the Bluescope HR Department need to become involved at an early stage of the disciplinary process.

h) Any other reason

[39] Mr Ronay was advised by his Supervisors, Mr Fleming, Mr Barkly and Mr Giles that Mr Troiano was the responsible Operator when the alarm occurred. This position was supported by Mr Duncan and Mr Milne. Despite this Mr Ronay, who has never worked in, or supervised the Control Room, had a different view - a view based on a personal notion of responsibility which has never been existed in this Control Room. If Mr Ronay was going to change the historic work practice, the policy or the pragmatic operation of the Control Room, then the Regulator Operators and their Supervisors were entitled to be advised.

[40] Mr Duncan was eating his lunch in the Control Room rather than the provided lunch room. It is beyond my comprehension why an employee who does not wish to be disturbed would eat their meal in a workplace situation rather than the first class amenities supplied by Bluescope. However, this is a reasonably common practice by Operators throughout Bluescope. Despite this, I do not accept that it was Mr Duncan’s responsibility to interrupt his lunch break to check on the new alarm. The light was flashing and the alarm was sounding within the Control Room. Mr Troiano was in charge. At the very least Mr Troiano should have walked to the Battery 6 panel, checked the monitor and turned off the audible alarm - or if he was busy, have asked Mr Duncan to assist.

Conclusion

[41] The dismissal of Mr Duncan was harsh, unjust or unreasonable. A blatant and deliberate disregard of a safety procedure can be a valid reason for summary dismissal, but this did not occur in this situation. The submission that Mr Duncan acted intentionally in not responding to the alarm cannot be sustained on the evidence. I am not satisfied that there is sufficient evidence to support that submission. The allegation of deliberately misleading the investigation is also unproven. I prefer the evidence of Mr Duncan over that of Mr Troiano. The misleading allegation emanated from Mr Ronay’s alternate view on Mr Troiano’s evidence, not the facts as I have found them.

[42] A breach of safety policy other than a deliberate breach can be a valid reason for the termination of employment with notice, but in these circumstances I am satisfied that such a termination of employment would be harsh, unjust or unreasonable.

[43] For the reasons stated above, I find that Mr Duncan has not been afforded the necessary “fair go” in accordance with the Objects of the Act.

Remedy

[44] In relation to an appropriate remedy, the Act relevantly states at s.381(1)(c)

“The object of this Part is:

To provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.”

[45] Bluescope have submitted that it is opposed to Mr Duncan being reinstated due to his attitude towards safety and a loss of trust.

[46] I cannot find any evidence of any attitude of Mr Duncan’s which would support a loss of trust and confidence.

[47] In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Court said:

“... we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the court were to adopt to a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.” 17

[48] In Quinn v Overland, Bromberg J, dealt with the appropriateness of reinstatement:

“...Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential.” 18

[49] Mr Duncan has given a commitment that he will not ignore any alarm in the future - even if it is not his responsibility as was the case here. I believe him. I accept his evidence.

[50] Mr Duncan’s employment prospects outside of Bluescope based on his age, his restricted experience and residential location mean that his alternate employment prospects are limited.

[51] For all of the reasons that I have previously identified in relation to finding that Mr Duncan’s termination was harsh, unjust or unreasonable, my belief that the working relationship can be easily re-established, the fairness in returning Mr Duncan to the position he would have been in if his employment had not been inappropriately terminated, I am satisfied that the appropriate remedy is reinstatement.

[52] Mr Duncan should have had a discussion with Mr Troiano in relation to the alarm. A potentially serious safety incident was averted due to the imposition and investigation of Mr Fleming into the situation. All four Regulator Operators should share the blame for the incident. An appropriate and consistent warning across the four employees would not be inappropriate.

[53] Pursuant to section 391 of the Act, I have decided to order the reinstatement of Mr Duncan to the position that he occupied immediately prior to his dismissal, with continuity of employment and payment of all lost salary.

[54] An order will be issued to that effect.

COMMISSIONER

 1   Transcript 217-218

 2 [1998] FCA 865

 3   [2012] FWA 8982 at para 44

 4 [1999] FCA 1836

 5 [1999] FCA 1836 at para 6 - 7

 6 (1995) 185 CLR 410

 7 (1990) 27 FCR 427

 8 (1995) 185 CLR at 467

 9 (1995) 185 CLR 410 at 465 - 468

 10   Transcript 560, 638 & 837

 11   Transcript 1436

 12   Transcript 824-825

 13   Transcript 597

 14   Transcript 1132

 15   Transcript 1708

 16   Transcript 658 & 1584

 17 (1997) 72 IR 186 at 191-192

 18   Downe at [462].

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