Mr William Marshall v OneSteel Trading Pty Ltd

[2016] FWC 2617

[2016] FWC 2617

FAIR WORK COMMISSION

DECISION

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

Mr William Marshall
v
OneSteel Trading Pty Ltd
(U2015/15688)

COMMISSIONER SAUNDERS NEWCASTLE, 2 MAY 2016

Application for relief from unfair dismissal

[1] On the evening of 11 December 2015, Mr Marshall, together with three of his workmates, left work before the end of their shift. Prior to leaving work on that evening Mr Marshall did not detach a load of RHS (rolled hollow section steel) from an overhead crane he had been operating during his shift. Following an investigation into the events of 11 December 2015, Mr Marshall was dismissed by OneSteel Trading Pty Ltd (OneSteel), and was paid five weeks’ wages in lieu of notice. Mr Marshall claims that his dismissal was harsh, unjust and unreasonable. OneSteel denies those allegations.

Agreed matters

[2] It is not in dispute and I am satisfied on the evidence that:

(a) Mr Marshall was, at the time of the termination of his employment with OneSteel, a person protected from unfair dismissal because he had completed at least the minimum employment period and the One Steel Distribution Agreement 2014 - 2015 (Enterprise Agreement) applied to him (s.382 of the Fair Work Act 2009 (Cth) (the Act));

(b) Mr Marshall was dismissed (s.385(a) of the Act);

(c) OneSteel was not, at the time of Mr Marshall’s dismissal, a small business employer. Accordingly, his dismissal was not consistent with the Small Business Fair Dismissal Code (s.385(c) of the Act);

(d) Mr Marshall’s dismissal was not a case of genuine redundancy (s.385(d) of the Act); and

(e) Mr Marshall made his unfair dismissal application (Application) within the period required in subsection 394(2) of the Act.

Hearing

[3] The matter proceeded by way of hearing on 20, 21 and 22 April 2016. Mr Marshall, Profile Operator, Mr Steven Forrest, Leading Hand Storeman, and Mr Mark Goodshaw, Leading Hand Storeman, gave evidence on behalf of Mr Marshall.

[4] OneSteel led evidence from the following witnesses:

(a) Mr Robert Hanly, Warehouse Co-ordinator;

(b) Mr John Yates, Leading Hand Process Operator;

(c) Mr Martin Upenieks, Operations Manager;

(d) Mr Mark Resevsky, Hunter Valley Manager;

(e) Ms Michelle Hamilton, Human Resources Manager;

(f) Mr Stuart Obre, Business Development Manager; and

(g) Mr Chris Comyns, State Safety Operations and Supply Chain Manager.

Was there a valid reason for Mr Marshall’s dismissal (s.387(a))?

[5] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[8] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 8as follows:

“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal.”

[9] OneSteel relies on two reasons which it contends are “valid reasons” for Mr Marshall’s dismissal:

(a) First, Mr Marshall breached the National Overhead Crane Operations Standard Operating Procedure & Competency Assessment (SOP) on 11 December 2015; and

(b) Secondly, Mr Marshall left work on 11 December 2015 before the prescribed finishing time for his shift without permission.

First reason – breach of the SOP

[10] Mr Marshall was trained in, and aware of, the requirements of the SOP. Mr Marshall conceded, quite properly, that he breached the following requirements of the SOP in connection with his operation of the overhead crane on Friday, 11 December 2015:

(a) Mr Marshall did not remove the lifting equipment from the product (RHS) before leaving work on 11 December 2015 (SOP – step 6, bullet point three); and

(b) Because Mr Marshall did not remove the lifting equipment from the product (RHS), he also failed to comply with his obligation under step 8 (bullet point one) to “park [the] crane in a safe position, ensuring equipment is raised to a suitable height, above head height (ready for next pre-op)”.

[11] I accept Mr Marshall’s explanation that he considered whether the crane was in a safe position when he deliberately left it attached to the load of RHS before he departed work on 11 December 2015. Mr Marshall believed he was leaving the crane in a safe position when he departed work, but he did not turn his mind to the specific requirements of the SOP referred to in the previous paragraph. Mr Marshall's behaviour was wilful in the sense that he consciously intended to leave the overhead crane in the position that he left it on the night of 11 December 2015, however I accept Mr Marshall’s explanation that he did not intend to breach the SOP; he just failed to turn his mind to the relevant provisions of the SOP.

[12] In my view, Mr Marshall’s conduct on the night of 11 December 2015 constituted a patent and substantial breach of the SOP 9 such as to meet the standard of constituting a sound, defensible and well founded reason for dismissal related to the employee's conduct.

Second reason – leaving work early without permission

[13] I am not satisfied that OneSteel had a valid reason to dismiss Mr Marshall in relation to his early departure from the site on 11 December 2015, for two reasons.

[14] First, one of Mr Marshall’s colleagues, Mr Steven Forrest, informed Mr Marshall that they had been given authority by Mr Rob Hanly, their supervisor (Warehouse Co-ordinator), to leave the site once they got “everything done”. I accept Mr Marshall’s evidence that Mr Forrest told him that and that Mr Marshall and his colleagues had completed all the work they could, save for a further five or ten minutes of work, before they left the site on Friday, 11 December 2015. In my view, not doing an additional five or ten minutes work does not constitute a failure to comply with the condition imposed on their early departure from work, particularly in circumstances where the loads on which Mr Marshall and his colleagues were working were not scheduled to leave the site until the next week and they would have time on the following Monday to complete that additional work.

[15] It was reasonable of Mr Marshall to believe that Mr Hanly had given the employees authority to leave early because (i) there was a practice of a supervisor such as Mr Hanly permitting Mr Marshall and his colleagues to leave work early from time to time on the basis that they regularly worked back without the payment of overtime to assist OneSteel to have trucks loaded and other work done after the conclusion of their shift, (ii) Mr Marshall and his colleagues had been very busy in the week commencing 7 December 2015, and had worked back (without pay) during that week, (iii) Mr Marshall and his colleagues had loaded the four usual trucks required of them at that time of the week (North, South, Local and Taree) before they left the site, (iv) the usual practice at that time was to load the Sydney shuttle truck on the Monday for departure on the Tuesday, (v) the Sydney shuttle truck was scheduled to depart on the following Tuesday, (vi) Mr Marshall and his colleagues were not told they had to load the Sydney shuttle before leaving work on Friday, 11 December 2015, (vii) there was no reason for Mr Marshall and his colleagues to think that they would not be able to get all the trucks loaded according to the expected busy schedule in the following week, and (viii) Mr Hanly had left work (in accordance with his scheduled hours of work) well before Mr Marshall and his colleagues and there was no other supervisor to inform them that they were not permitted to leave early.

[16] My findings that Mr Marshall was told by Mr Forrest that Mr Hanly had given them authority to leave work early, provided they got “everything done”, together with the reasonableness of Mr Marshall’s belief in that regard, are sufficient to dispose of OneSteel’s argument that it had a valid reason to dismiss Mr Marshall on the basis of his early departure from work on 11 December 2015 without authority. For completeness, however, I will next consider whether Mr Hanly’s communications with Mr Forrest in fact gave Mr Forrest, Mr Marshall, Mr Goodshaw and Mr Latimore authority to leave work early on 11 December 2015.

[17] Secondly, I am satisfied, on the balance of probabilities, that the effect of Mr Hanly’s communications with Mr Forrest on the evening of 11 December 2015 was, objectively, to give Mr Forrest and his colleagues authority to leave work early on Friday, 11 December 2015 if they finished the work they had to do. Mr Forrest gave evidence that Mr Hanly told him they could go early as long as they made sure “Coffs Harbour is picked 10 and ready for a good start on Monday”. Mr Hanly agrees that he was asked by Mr Forrest if the employees could leave early “once we get all [the work] done”. Mr Hanly admits that he did not say “no” or words to a similar effect in response to Mr Forrest’s request. Mr Hanly says he responded by saying: “We’ve got a big week next week, you’ve got to get the shuttle done”. I prefer Mr Forrest’s evidence in relation to this conversation over the evidence given by Mr Hanly. After observing both witnesses give evidence under cross examination, I formed the view that Mr Forrest had a good and clear recollection of the conversation, whereas Mr Hanly’s recollection of the conversation was less certain. I am satisfied on the evidence that Mr Marshall and his colleagues had made sure “Coffs Harbour is picked and ready for a good start on Monday” before they left work.11 Accordingly, Mr Marshall and his colleagues met the condition to leave early on Friday, 11 December 2015.

[18] Even if I preferred Mr Hanly’s evidence to Mr Forrest’s evidence on this disputed conversation (which I do not), I would still reach the same conclusion that the employees were authorised to leave early. In particular, I accept that Mr Hanly may have intended to reject Mr Forrest’s request to leave early, but his response did not communicate that intention with any clarity. In the context of the circumstances set out in paragraph [15] above and even accepting the accuracy of the words Mr Hanly says he used in response to Mr Forrest’s request, I am of the view that it was reasonable for Mr Forrest to understand that response to give him and his work colleagues authority to leave early if they undertook all the work they could reasonably do on the Friday and would be in a position the following Tuesday to have the Sydney shuttle loaded and ready to depart the site. There was no clear statement by Mr Hanly or Mr Yates to Mr Forrest or his colleagues that they had to have the Sydney shuttle loaded before they left the site on Friday, 11 December 2015. I am not satisfied that Mr Forrest or any of his colleagues saw the Sydney “load summary” sheets that Mr Yates placed in the work area on the evening of 11 December 2015. Even if they had seen the “load summary” sheets for the Sydney shuttle, that document did not state, in terms, that the truck scheduled to depart for Sydney on the following Tuesday had to be loaded on Friday, 11 December 2015. Mr Yates did not tell Mr Marshall or his colleagues that they had to load the Sydney shuttle on the Friday. The evidence revealed that Mr Marshall and his colleagues reasonably believed the Sydney shuttle truck would be ready for departure the following Tuesday. Taking Mr Yates’ evidence at its highest, he told at least some of the employees in Mr Marshall’s team that they had to load four trucks on Friday, 11 December 2015. By loading the trucks for North, South, Local and Taree, Mr Marshall and his work colleagues met the requirement to load four trucks on Friday, 11 December 2015.

[19] I accept Mr Upenieks’ evidence that Mr Marshall’s early departure from the site on Friday, 11 December 2015 was a small percentage of the reason for his dismissal. 12 Mr Upenieks would still have concluded that Mr Marshall’s dismissal was the appropriate disciplinary action for his breach of the SOP on 11 December 2015, even if Mr Marshall had not left the site early.13

[20] My conclusion that OneSteel did not have a valid reason for Mr Marshall’s dismissal in relation to his early departure from the site on 11 December 2015 does not alter my earlier conclusion that OneSteel had a valid reason for Mr Marshall’s dismissal in relation to his substantial breach of the SOP on 11 December 2015.

Was Mr Marshall notified of the reason for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[21] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 14, and in explicit15 and plain and clear terms.16 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[22] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 17

[23] On Monday, 14 December 2015, Mr Marshall met with OneSteel managers as part of their investigation into what had happened on Friday, 11 December 2015. In particular, OneSteel was investigating why Mr Marshall and his employees had left early on Friday evening and why the site was left in the state that it was on that evening.

[24] On Wednesday, 16 December 2015, Mr Marshall was provided with a letter from OneSteel setting out various allegations against him. The letter was prepared at the request of Mr Marshall’s union, the National Union of Workers (NUW). Mr Marshall was a delegate of the NUW. The letter included the allegation that Mr Marshall had “left a load on the tables under tension. This is a serious safety breach”, but was subject to OneSteel’s “right to make alterations” depending on the outcome of further discussions.

[25] On Friday, 18 December 2015, Mr Marshall met again with OneSteel managers. At that meeting the question of Mr Marshall leaving “a load on the tables under tension” was not the primary focus of the meeting insofar as it concerned Mr Marshall’s operation of the crane and the position in which he left it when he departed work on 11 December 2015. At the meeting on Friday, 18 December 2015, Mr Marshall was told that he breached the SOP because he left the crane attached to the load. 18 That is, he did not remove the lifting equipment from the product and he failed to “park [the] crane in a safe position, ensuring equipment is raised to a suitable height, above head height (ready for next pre-op)”. Mr Marshall responded in the following way to this allegation:19

“I thought I left it in a safe state in a parking bay. I would have removed the safety equipment if I would have thought about it. You are pointing out one line in a large document. I simply forgot about that point I thought that what I was doing was safe.”

[26] After discussing matters with Mr Marshall on Friday, 18 December 2015, including the allegation that he had breached the SOP by failing to remove the crane from the product, there was a 30 minute break in the meeting. During that break the relevant OneSteel managers considered what Mr Marshall had said during the meeting and then made their decision to terminate his employment. When the meeting resumed following the break Mr Marshall was told of OneSteel’s decision to terminate his employment. He was also provided in the meeting with a letter of termination dated 18 December 2015.

[27] The letter of termination states, in part, that Mr Marshall “failed to follow the” SOP. It does not expressly state which parts of the SOP were breached by Mr Marshall. However, it was clearly explained to Mr Marshall in the meeting on Friday, 18 December 2015 that he had left the “chain still being attached to the load”. 20

[28] On the basis of the findings I have made in the previous five paragraphs, I am satisfied that Mr Marshall was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal.

Was there an unreasonable refusal to allow Mr Marshall to have a support person present (s.387(d))?

[29] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[30] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”21

[31] Mr Marshall, in his capacity as the NUW delegate and a support person, attended meetings between OneSteel managers and each of Mr Forrest, Mr Goodshaw and Mr Greg Latimore on Monday, 14 December 2015. Mr Marshall did not request that a support person be present during his discussion with OneSteel managers on Monday, 14 December 2015. At the meetings on Friday, 18 December 2015, Mr Marshall attended with his support person, Ms Marisa Bernardi, from the NUW. Accordingly, I am satisfied that there was no unreasonable refusal by OneSteel to allow Mr Marshall to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[32] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[33] In this case, the reasons for dismissal related to Mr Marshall’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of OneSteel on procedures followed in effecting the dismissal (s.387(f))

[34] OneSteel is a large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Marshall’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[35] OneSteel has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Other relevant matters (s.387(h))

[36] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[37] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 22 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[38] There are a number of “other matters” which are relevant to my determination as to whether Mr Marshall’s dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.

Harshness of the dismissal

[39] A dismissal may be “harsh” in either or both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 23, that is, “harsh in its consequences for the personal and economic situation of the employee” and/or “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[40] Mr Marshall is 56 years of age. He worked for OneSteel for about 21 years 24 prior to his dismissal. Mr Marshall found alternative employment the end of January 2016. However, he earns about $337 gross less per week in the alternative employment than he did with OneSteel. Mr Marshall enjoyed working at OneSteel and enjoyed working with his co-workers. There is no doubt that Mr Marshall’s dismissal by OneSteel has had significant negative consequences for his personal and economic situation.

[41] Mr Marshall does not accept that his breach of the SOP in December 2015 gave rise to any real risk of injury or damage. Mr Marshall contends, in this regard, that his circumstances are similar to those of Mr Lawrence in Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth. 25 In that case, a majority of the Full Bench of Fair Work Australia (as the Commission was then known) found that Mr Lawrence’s dismissal was harsh, partly because Mr Lawrence’s breach of policy did not give rise to any real safety risk:

“[32] The relevant risk in this case was a risk that a person working on the pump line would be injured by an unexpected flow of water under high pressure from an opening at which the person was working. Hypothetically, the actions of Mr Lawrence in removing the contractors’ locks in breach of the Isolation Procedures gave rise to such a risk. However, in the particular circumstances of this case, the safety risk posed by the actions of Mr Lawrence in removing the contractors’ locks in breach of the Isolation Procedures was, for all practical purposes, non-existent. Mr Lawrence had driven the relevant pump line only minutes before and there was no person in the vicinity of the line. Even if other work had been occurring on the relevant line (and it was not) then, in the ordinary course, Mr Lawrence would likely have been aware of it and, more importantly, there was an independent obligation on the person doing such work to again ensure that the pump was isolated with their own safety lock. Mr Lawrence knew that no other locks had been applied.”

[42] The relevant risk in Mr Marshall’s case is that someone could have used the remote control to move the overhead crane. Because Mr Marshall left the overhead crane attached to 1.4 tonnes of RHS in contravention of the SOP, any movement of the overhead crane would have created a safety risk to any person in the vicinity of the overhead crane. That risk was, in my view, real; it was not “non-existent”, as was the case in Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth. I make those findings for the following reasons:

(a) The only way of operating the overhead crane is by using a hand-held remote control. The remote control is not locked, nor is it difficult to operate. Any person, whether trained or not, can pick up the remote control, press buttons on it, and cause the overhead crane to move;

(b) Mr Marshall left the remote control for the overhead crane on top of the product attached to the crane when he left the site on 11 December 2015. Any person in that part of the site could have picked up the remote control and operated the crane;

(c) In the event that somebody moved the remote control from the position where Mr Marshall left it on 11 December 2015 to another place within that area of the site, it would have continued to be able to be operated because the remote control has a range of about 100m from the overhead crane;

(d) Given the size and weight (1.4 tonnes) of the RHS left by Mr Marshall attached to the overhead crane, if a person used the remote control to move the overhead crane and that person or another person was in the near vicinity of the overhead crane and came into contact with the RHS attached to the crane, there was the real prospect that somebody would be killed, crushed, or suffer other serious injury. That is precisely why there is an express requirement in the SOP for the overhead crane to be removed from product once it is set down, and for the crane to be parked in a safe position, ensuring the equipment is raised to a suitable height;

(e) Mr Marshall contends that there was no risk of any other person operating the overhead crane between when he left the site on Friday evening and when he was due to return to work on the following Monday. I reject that argument. Mr Marshall and his co-worker, Mr Goodshaw, who was also aware of the position in which the overhead crane had been left on the Friday night, may have been absent from work on the following Monday for sickness or some other reason. In addition, although there was no realistic possibility of a member of the public entering the part of the worksite in which the overhead crane is located, the evidence revealed that employees other than those in Mr Marshall’s team and truck drivers engaged by OneSteel to pick up product from the Mayfield site had, or could obtain, keys to enter through the locked door into the shed in which the overhead crane is located. Such entry could have taken place over the weekend or early on Monday morning, before Mr Marshall and his co-workers arrived for work. For example:

i. notwithstanding that Mr Marshall was not aware of any maintenance work being planned on the overhead crane or any other equipment in that area of the site over the weekend, such work could have been undertaken;

ii. a casual or other employee of OneSteel could have accessed the part of the site in which the overhead crane was located over the weekend or early on Monday morning. Although the part of the site in which the overhead crane is located is not a usual thoroughfare, there could have been an operational reason for an employee to enter that part of the site; or

iii. a truck driver could have accessed the part of the site in which the overhead crane is located early on the Monday morning, before Mr Marshall and his co-workers arrived at work. There was evidence led that truck drivers do sometimes arrive at the site early of a morning and do, from time to time, enter various parts of the site;

(f) The risk of another person operating the overhead crane between when Mr Marshall left the site on Friday evening and when he was due to return to work on the following Monday morning was not high, but nor was it non-existent. It was a real risk and, importantly, if the risk eventuated, then the potential consequences for the safety of those in the area were significant;

(g) Mr Marshall also contends that even if a person entered the part of the site in which the overhead crane is located at some time after he left the site on the Friday evening, there was no risk of injury. That is because, so Mr Marshall contends, the remote control for the overhead crane was left on top of the product to which the overhead crane was attached, with the result that any person who saw the remote control and thought about using it could not fail to notice that the overhead crane was left attached to the product. There are two problems with this analysis:

i. First, the remote control could have been moved by any person from the position in which Mr Marshall left it to another place in that part of the site. A second person who saw the remote control in the new location would not necessarily notice that the crane was attached to the load; and

ii. Secondly, even if a person saw that the overhead crane was attached to a load, an untrained or inexperienced person would not necessarily know the direction in which the crane, or the product attached to it, would move once different buttons on the remote control were pressed. Similarly, such a person would not necessarily know that there is an exclusion zone around the area in which the overhead crane operates, that the overhead crane could only move up or in a southward direction from the location in which Mr Marshall had left it, or that the SOP requires a pre-operational checklist to be completed before the crane is operated, including “confirm all crane functions operational as per checklist” and “check all lifting equipment to be used”;

(h) Given that the RHS to which the overhead crane was attached was sitting on a table and there were chains securing the RHS to the overhead crane, I accept Mr Marshall’s assessment that there was no risk of the product falling off the table to injure anybody.

[43] Accordingly, I am satisfied that Mr Marshall’s breach of the SOP on the evening of 11 December 2015 was substantial and gave rise to potentially very serious safety risks. In those circumstances, I find that Mr Marshall’s dismissal was not disproportionate to the gravity of his misconduct in breaching the SOP.

Previous breach of the same SOP

[44] At 12:15pm on Friday, 26 September 2014, Mr Marshall operated the 4 tonne overhead crane using 3.2 tonne capacity slip ring lifting chains. Mr Brendan Myers, a casual employee who had only been employed by OneSteel for two days, was assisting Mr Marshall as his offsider.

[45] Whilst picking a full pack of 25 x 25 x 1.6mm RHS at 6.5m long, the open hook on the chain suspended from hoist B of the overhead crane being operated by Mr Marshall snagged on the bottom of the stowage rack. Mr Marshall was using the crane to lift the pack with the chain on the hoist. When Mr Marshall was operating the crane in this way Mr Myers positioned himself immediately beside and below the lifted pack to position timber dunnage under the pack. As the hoists were raised, the open hook sprang free of the rack (where it had been snagged) and flicked vertically up in the air. As the hook came back down it struck Mr Myers on the rear of his head. This impact dislodged his hard hat and glasses and knocked him to the ground in the adjacent empty stow. The hook and chain continued to bounce around for a short period until all stored energy had disappeared. The impact resulted in a contusion and small laceration to Mr Myers. First aid was immediately provided and an ambulance was called. Mr Myers was then transferred to hospital for treatment.

[46] OneSteel undertook a detailed investigation into the incident. Mr Marshall participated in that investigation.

[47] OneSteel concluded that Mr Marshall breached the SOP, in which he had been trained and assessed as competent. Mr Marshall was issued with a final written warning dated 13 October 2014 and was required to undertake refresher training in the SOP and be assessed as competent on the overhead crane before he was allowed to operate it again. Mr Marshall undertook that refresher training in the SOP and was assessed as being competent to resume operating the overhead crane, which he then did.

[48] At the time of the incident in September 2014 and the warning that was subsequently issued to him in October 2014 Mr Marshall did not challenge the finding that he breached the SOP or the fairness of the warning letter issued to him. However, in these proceedings Mr Marshall asserts, for the first time, that he did not breach the SOP in relation to the incident in September 2014. Mr Marshall does, however, accept that he “did something wrong” in relation to the incident in September 2014. 26 In particular, Mr Marshall says that because the accident happened, he accepts responsibility for it.27

[49] During its investigation OneSteel found that Mr Marshall directed Mr Myers to go into the exclusion zone while he was operating the crane. Mr Marshall denies that he gave any such direction. He says that he told Mr Myers to stay out of the exclusion zone and despite that direction Mr Myers went into the exclusion zone without Mr Marshall’s knowledge or consent. Mr Marshall contends he did not see Mr Myers in the exclusion zone because his view was obstructed and he was focusing on watching the product he was lifting with the overhead crane.

[50] Mr Marshall also denies that he was operating the crane from a location shown in a photograph attached to OneSteel’s investigation report into the incident. From that location it is clear that Mr Marshall would, or should, have seen Mr Myers in the exclusion zone and should have ceased operating the crane until Mr Myers was out of the exclusion zone. Instead, Mr Marshall asserts that he was standing closer to product which had been stacked in the exclusion zone, with the result that he could not see Mr Myers when he entered the exclusion zone.

[51] I make the following findings, on the balance of probabilities, in relation to these contested factual issues:

(a) Although Mr Myers has not been employed by OneSteel for some time and was not called to give evidence on behalf of OneSteel, he told the OneSteel managers who were responsible for investigating the incident that Mr Marshall instructed him to go into the exclusion zone;

(b) There was an operational reason for Mr Myers to go into the exclusion zone at some point in time, namely to place timber dunnage under a load. Indeed, Mr Marshall agrees that he handed the timber dunnage to Mr Myers shortly before he entered the exclusion zone;

(c) It is unlikely, in my view, that a very inexperienced employee such as Mr Myers, working as an offsider to an experienced crane operator, would enter an exclusion zone underneath an overhead crane unless they were directed to do so by the crane operator;

(d) For the reasons set out in the previous three subparagraphs, I find that Mr Marshall did direct Mr Myers to go into the exclusion zone while Mr Marshall was operating the overhead crane;

(e) Mr Marshall participated in OneSteel’s investigation into the incident and there is a photograph of Mr Marshall in the investigation report above the caption: “Re-enactment of approximate position of crane driver at time of the incident”. Mr Marshall is shown in that photograph standing in the position that OneSteel asserts he was in when he operated the crane. Another employee is shown in the photograph in the location where OneSteel asserts Mr Myers was standing when he was struck by the chain attached to the overhead crane;

(f) The position where Mr Marshall says he was standing at the time of the accident is adjacent to stacked product. Mr Marshall’s view of the area would have been obstructed if he had been standing in that position. It is unlikely that a man of Mr Marshall’s experience would have positioned himself in such a location (with blind spots) when working with a very inexperienced offsider. Mr Marshall gave evidence that he could have moved from where he says he was standing to a location where he could have had an unobstructed view by asking Mr Myers to move from where he was standing at the time. Mr Marshall asserts that he needed to stand where he was standing so that he could place dunnage under the load as it was lowered. I do not accept that explanation. The dunnage needed to be placed in an exclusion zone. Mr Marshall was aware that neither he nor his offside was permitted to go in the exclusion zone when the overhead crane was being operated. If Mr Marshall needed to place dunnage under the load, he could have stopped operating the crane before entering the exclusion zone to place the dunnage in the correct position; and

(g) For the reasons set out in the previous two subparagraphs, I find that Mr Marshall was standing in a position where he had a good view of the exclusion zone, including the location where Mr Myers was standing when he was struck by the chain. That is, I am satisfied that Mr Marshall was, at the time of the incident, standing at the location shown in figure 4 of the photographs attached to OneSteel’s investigation report.

[52] Regardless of which version of the contested facts referred to in the previous paragraph is preferred, I am satisfied that Mr Marshall breached the SOP in a substantial way in relation to the incident on 24 September 2014. If Mr Marshall was standing in the location asserted by him and Mr Myers entered the exclusion zone of his own accord, Mr Marshall failed to comply with his requirement under the SOP to “stop, take 2” in relation to potential blind spots, “check for activity before proceeding or position self with a view of the crane and the area (may be in front of the load)”. 28 I do not accept Mr Marshall’s argument that step 4 (travel with load) of the SOP only applies to traveling laterally with the load, as distinct from lifting a load. The ordinary meaning of “travel with load” includes lifting the load. Furthermore, the first bullet point in step 4 states: “Prior to lifting ensure chains are correctly positioned”. This makes plain that traveling with the load includes lifting the load.

[53] If Mr Marshall was standing in the location shown in figure 4 of the photographs included in the OneSteel investigation report, with the result that he either saw, or should have seen, Mr Myers enter the exclusion zone, then Mr Marshall failed to comply with his requirements under the SOP to:

• “Do not trust the load – allow for a mobile exclusion zone around a suspended or moving load”; and



• “Keep clear of the line of fire of the load. Do not place any part of body under the crane load. Crane Operators or Doggers shall keep their load in sight and maintain a travel path clear of people and obstacles.”

[54] The fact that OneSteel elected not to dismiss Mr Marshall for his breach of the SOP in September 2014 is a relevant matter under s.387(h). 29 However, the fact that Mr Marshall engaged in a second substantial breach of the same SOP in a relatively short time period after his first substantial breach, together with the fact that Mr Marshall received additional training on the SOP and a further competency assessment after his first breach of the SOP, is also a highly material consideration which, while not being determinative, is adverse to the conclusion that Mr Marshall’s dismissal was harsh, unjust or unreasonable.30

[55] Further, the existence of the prior substantial breach of the SOP is a point of distinction between Mr Marshall’s case and Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth. In that case, the majority of the Full Bench placed weight on the fact that Mr Lawrence was not just a good employee, he was an exemplary employee, Mr Lawrence had not been subject to any disciplinary allegation or action, and in 28 years of service Mr Lawrence had never been guilty of any safety breach. 31

Mr Obre signed the warning letter to Mr Marshall

[56] Mr Marshall contends that it was inappropriate and unfair for Mr Obre to be the person responsible for deciding what disciplinary action Mr Marshall ought receive in respect of the incident in September 2014. The basis for the complaint is that Mr Obre was found partly responsible for the incident and was moved into a different position as a result. It is contended that, in those circumstances, Mr Obre would not be able to bring a fair and impartial mind to the task of deciding on the appropriate disciplinary action for Mr Marshall because he could blame Mr Marshall for causing the incident. I reject these contentions.

[57] Mr Obre gave evidence, which I accept, to the effect that he discussed the issue of what disciplinary action Mr Marshall ought receive in respect of the incident in September 2014 with other managers of OneSteel. Some of those managers believed that Mr Marshall should have been dismissed. However, Mr Obre was of the view that, in light of Mr Marshall’s long period of service and good record, he should be given a final warning. Mr Obre’s view prevailed and he signed the warning letter issued to Mr Marshall.

[58] I am not satisfied that Mr Obre failed to bring a fair and impartial mind to the task of deciding on the appropriate disciplinary action for Mr Marshall. Further, in light of the seriousness of Mr Marshall’s conduct in breaching the SOP in a substantial way on 24 September 2014, with the consequence that there was a serious risk to Mr Myers’ health and safety, I am satisfied that it was appropriate for OneSteel to issue Mr Marshall with a final written warning in October 2014.

Mr Marshall’s employment history

[59] Mr Marshall was employed by OneSteel for a very significant period of time (about 21 years). His lengthy period of service, most of which was good, weighs in his favour. The two blemishes on his record are the breaches of the SOP in September 2014 and December 2015.

[60] In addition to the two breaches of the SOP, OneSteel relies on:

(a) a warning letter it alleges was issued to Mr Marshall in about November 2011 in relation to him calling in sick on the last night shift of his week on night shift for two consecutive rosters. 32 Mr Marshall denies the letter was provided to him. He says he discussed the issue with Mr Harris, an Operations Co-ordinator, and explained to Mr Harris that his metabolism was such that he found it very difficult to sleep during the day when he was on night shift, with the result that he was not in a fit state to attend work on the final night of a week on night shift. Regardless of whether or not the warning letter was actually issued to Mr Marshall, there is no suggestion that he took excessive sick leave at any time after his discussion with Mr Harris. In the circumstances, I am of the view that this issue does not detract from Mr Marshall’s good work record, apart from the two breaches of the SOP; and

(b) a document entitled “One on One discussion with storeman” dated 20 August 2009. 33 Mr Marshall gave evidence, which I accept, that Mr Trent Bell completed this document in 2009 in the context of a situation where Mr Marshall had applied to take a voluntary redundancy and OneSteel was assessing which employees would be made redundant. Mr Marshall’s application for voluntary redundancy was unsuccessful. He was told that he was too valuable to let go. The “One on One discussion with storeman” document contains a range of comments (by Mr Bell), some of which are positive and some are negative. For example:

i. Under the heading “commitment to safety” Mr Bell wrote: “Bill is hot and cold with safety, he sometimes shows a lot of passion for safety but is sometimes willing to take risks”;

ii. Under the heading “attendance” Mr Bell wrote: “Very poor result. Improvement needed”; and

iii. Under the heading “overall comments and opportunities for improvement Mr Bell wrote: “Bill has very valuable skills and is well suited to our business. Bill needs to get more involved in his team and business improvements”.

The comment in the “One on One discussion with storeman” document that Mr Marshall is “sometimes willing to take risks” when it comes to safety in the workplace supports OneSteel’s contention that, by the time of his dismissal in late 2015, Mr Marshall had engaged in a pattern of unacceptable conduct in relation to safety at the workplace.

Tension on the chains

[61] One of the allegations made against Mr Marshall during OneSteel’s investigation into what happened on 11 December 2015 was that he had left a load of product on a table under tension, in that there was tension in the chains connecting the product and the overhead crane. Mr Marshall denies that allegation.

[62] The allegation about the load being left under tension was included in the letter provided to Mr Marshall on 16 December 2015. 34 However, there is no mention of that allegation in the letter of termination dated 18 December 2015. In addition, it is clear from the discussion that took place between Mr Marshall and members of the OneSteel management team on Friday, 18 December 2015 that the primary focus of their concern, at that time, in relation to Mr Marshall’s breach of the SOP was his failure to remove the crane from the product.35 Indeed, Mr Upenieks, the person who signed the termination letter and contributed to the decision to dismiss, gave evidence that the investigation moved on after the allegations were put to Mr Marshall in writing on 16 December 2015 and by the time the decision was taken to dismiss Mr Marshall on 18 December 2015 no part of the reason for dismissal, so far as Mr Upenieks was concerned, related to any allegation that the load had been left under tension.36 Ms Hamilton, the Human Resources Manager advising on the matter, did not suggest to the persons making the decision that Mr Marshall should be dismissed because he left a load under tension.37 Ms Hamilton said the reason for Mr Marshall’s dismissal was that he breached the SOP by leaving the product attached to the crane and the crane not being parked in a safe position.38 Mr Upenieks gave evidence to the same effect. Mr Resevsky, who was involved in the decision to terminate Mr Marshall’s employment, believed that Mr Marshall had left the load under tension and Mr Resevsky was concerned about that from a safety point of view.

[63] OneSteel did not assert in these proceedings that Mr Marshall breached the SOP by leaving a load of product on the table under tension, nor did it contend in these proceedings that it had a valid reason to terminate his employment on the basis of product being left on the table under tension by Mr Marshall. Accordingly, it is not necessary for me to make a finding as to whether Mr Marshall did leave the product on the table under tension. Had I been required to make such a finding, I would have concluded that the load of product was not left on the table under tension. Evidence given by two of the employees who were at the site on the Friday night shortly after Mr Marshall left the workplace, Mr Rob Hanly and Mr John Yates, together with the photographs they took at the time, and evidence given by Mr Goodshaw, support that conclusion.

Options other than dismissal

[64] Mr Marshall was warned in his final written warning letter dated 13 October 2014 that, “in the event that you do not improve your performance to the standard required of a Storeman further disciplinary action, including termination of your employment may be undertaken”. 39

[65] OneSteel considered the information provided by Mr Marshall in the meeting on 18 December 2015, together with the options it had available to deal with Mr Marshall’s misconduct, before making the decision to terminate his employment. 40

Inconsistent treatment

[66] Mr Marshall asserts that he was unfairly afforded inconsistent treatment by OneSteel at two different points in time:

(a) First, in connection with the final written warning issued to Mr Marshall on 13 October 2014 in relation to his breach of the SOP in September 2014; and

(b) Secondly, in connection with the decision to dismiss Mr Marshall in December 2015.

[67] In Darvell v Australian Postal Corporation[2010] FWAFB 4082, the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." [Footnotes omitted]

[24] We respectfully concur with their Honours.”

[68] As a consequence of the September 2014 incident, Mr Marshall was given a final written warning; Mr Upenieks, the Operations Manager who was found by OneSteel to be responsible for some of the organisational and environmental factors which contributed to the incident, was given an oral warning and was subjected to a 4-5 hour discussion in the OneSteel Boardroom by senior management as to how he would ensure improvements in safety at the site; Mr Obre, the Location Manager who was found by OneSteel to be responsible for some of the organisational and environmental factors which contributed to the incident, was taken out of his operational role and given a different role; Mr Myers, the casual employee who was injured in the incident, was removed from further casual work on the site; and recommendations were made to amend the SOP because it did not address particular matters.

[69] I find that the different treatment of Mr Marshall to other employees involved in the September 2014 incident was not unfair for the following reasons:

(a) First, Mr Marshall was operating the overhead crane at the time of the incident. Mr Marshall breached the SOP in a substantial manner when operating the overhead crane. No other employee engaged in such conduct, or conduct of a similar level of seriousness; and

(b) Secondly, Mr Marshall was responsible for his inexperienced offsider, Mr Myers, at the time of the incident. Mr Myers was seriously injured and could have been killed when he was struck in the head by a chain attached to the overhead crane being operated by Mr Marshall.

[70] As a consequence of the December 2015 incident, Mr Marshall was dismissed and the other three employees were given final written warnings. 41 I find that the different treatment of Mr Marshall to the other employees involved in the December 2015 incident was not unfair for the following reasons:

(a) First, and most significantly, Mr Marshall had received a final written warning for his prior substantial breach of the SOP. No other employee involved in the events of Friday, 11 December 2015 had engaged in such conduct, or received such a warning, in the past; and

(b) Secondly, Mr Marshall was the person who was operating the overhead crane on 11 December 2015. He was the person responsible for leaving the overhead crane attached to the RHS and not parked away safely. None of other employees working on that evening engaged in that conduct, or any other conduct of the same level of seriousness. Mr Goodshaw, who was working with Mr Marshall when he was operating the overhead crane, did not think to tell Mr Marshall to remove the crane from the product or attend to that himself. His failure in that regard is not as serious as Mr Marshall’s failure, because Mr Marshall was operating the overhead crane and was responsible for making the decision to leave it as it was left on 11 December 2015. Further, the other employees who departed the site on Friday, 11 December 2015 and left a truck trailer loaded without partial load restraint or an exclusion zone established committed a breach of the safety requirements at the site, but that conduct was not, in my view, as serious as Mr Marshall’s conduct. The risk of serious injury or death arising from Mr Marshall’s breach of the SOP was greater than the risks associated with leaving the load on the trailer partially unrestrained and not protected by an exclusion zone.

Procedural fairness

[71] Mr Marshall contends that he was not afforded procedural fairness. He says the allegations were not put to him in the first meeting on Monday, 14 December 2015. Instead, he says that he was asked open-ended questions. Further, Mr Marshall complains that the written allegation of leaving a load on the tables under tension was not ultimately the reason for his dismissal.

[72] In my view, the procedure adopted by OneSteel to investigate what happened on Friday, 11 December 2015 and decide on the appropriate disciplinary action for those involved was appropriate and fair. The initial meetings on Monday, 14 December 2015 formed part of OneSteel’s investigation into why Mr Marshall and his colleagues had left the site early on the previous Friday and why the overhead crane had been left in the position that it was. Mr Marshall and his colleagues had the opportunity to have a support person present with them during the discussions. The open nature of some of the questions asked in those meetings was appropriate for that investigatory stage of the process.

[73] The NUW insisted on written allegations being put to Mr Marshall and his colleagues. OneSteel acceded to that request and provided the written allegations on Wednesday, 16 December 2015.

[74] The meetings on Friday, 18 December 2015 involved specific concerns and allegations being put to Mr Marshall for his response. Mr Marshall was given the opportunity to, and did, respond to those allegations. He had a support person with him in those meetings. OneSteel considered Mr Marshall’s responses before making a decision about what disciplinary action should be taken against him.

Conclusion

[75] Having considered each of the matters specified in section 387 of the Act, I am satisfied that OneSteel’s dismissal of Mr Marshall was not harsh, unjust or unreasonable. The Application is therefore dismissed.

COMMISSIONER

Appearances:

Mr S Mueller, Senior Industrial Officer, National Union of Workers, on behalf of the applicant;

Mr D Murray, Principal Adviser Workplace Relations, Australian Industry Group, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

April, 20, 21, 22.

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 7   Ibid

 8   [2013] FWCFB 6191

 9   In the ways set out in paragraph [10] above

 10   “Picked” means the product is out on the tables and ready to be loaded in the truck

 11   PN843, PN849

 12   PN3128

 13   PN3132-3

 14   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 16   Previsic v Australian Quarantine Inspection Services Print Q3730

 17   RMIT v Asher (2010) 194 IR 1 at 14-15

 18   Witness statement of Mr Marshall (exhibit A1 at [18]); witness statement of Michelle Hamilton (exhibit R1 at [60])

 19   Witness statement of Mr Marshall (exhibit A1 at [18])

 20   Ibid

21 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

 22   [2013] FWCFB 6191

 23 (1995) 185 CLR 410 at 465

 24   Mr Marshall commenced employment with OneSteel in late 1994 as a casual. He became a permanent employee on 27 February 1995.

 25   [2010] FWAFB 10089

 26   PN120-1

 27   PN142

 28   SOP step 4, third last bullet point

 29   Toll Holdings Ltd t/a Toll Transport v Johnpulle[2016] FWCFB 108 at [15]

 30   Ibid

 31   Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [35]

 32   Exhibit R8

 33   Exhibit R9

 34   Exhibit A1 (attachment 1)

 35   Witness statement of Mr Marshall (exhibit A1 at [18]); witness statement of Michelle Hamilton (exhibit R1 at [60])

 36   PN3110

 37   PN1198

 38   PN1209-1215

 39   Exhibit A1 (attachment 3)

 40   Witness Statement of Michelle Hamilton (Ex R1 at [61]); Witness statement of Martin Upenieks (Ex R10) at [74]-[75]

 41   Mr Forrest, Mr Goodshaw and Mr Latimore

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579461>