Robert Mayer v Transfield Services (Australia) Pty Limited

[2013] FWC 5340

[2013] FWC 5340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Mayer
v
Transfield Services (Australia) Pty Limited
(U2013/1117)

COMMISSIONER MACDONALD SYDNEY, 25 SEPTEMBER 2013

Application for relief from unfair dismissal - Applicant’s breach of Mandatory Safety Rule - investigation - summary dismissal - Hearing - preliminary issue of legal representation - valid reason for dismissal - dismissal harsh - reinstatement ordered - no order for lost wages.

[1] This decision arises from an application by Mr Robert Mayer (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Transfield Services (Australia) Pty Limited (the Employer/the Respondent).

[2] The unfair dismissal application was filed on 9 April 2013.

[3] The Employer’s response to the unfair dismissal application was filed on 29 April 2013.

[4] The unfair dismissal application was listed for conciliation before a Fair Work Commission (FWC) Conciliator on 9 May 2013 but did not resolve.

[5] The unfair dismissal application was set down for a one day Hearing in Wollongong before the Fair Work Commission (FWC) on 7 August 2013.

[6] The Applicant was represented by Ms Lucy Saunders of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Ms Saunders called the following witness:

Robert Mayer - the Applicant

[7] The Respondent was represented by Ms Katherine Peterson, solicitor, who sought permission to appear. Ms Peterson also gave an appearance for Mr D Dal Bon, Executive Manager Industrial Relations, of the Respondent.

[8] The AMWU advised from the bar table that it had no objection to the Respondent being legally represented. I then asked if the Act provided that if one party consents to the other party being legally represented, then can that other party be legally represented ? Ms Peterson answered that the Act did not so provide.

[9] Ms Peterson addressed me on the requirements for legal representation as set out in section 596 of the Act. Ms Peterson advised that Mr Dal Bon (Executive Manager, Industrial Relations of the Respondent), was not in a position to run the case for the Respondent. Thus, Mr Dal Bon was not based at the site (a BlueScope site) where the incident occurred. Further, the case before the FWC would run more efficiently through legal representation given the extended factual background as to procedures on site and safety matters and the application of the grounds for dismissal as against the criteria set out in section 387 of the Act.

[10] I sought a response to the foregoing from the AMWU. Ms Saunders, “Legal Officer” of the AMWU, advised: “... I have no particular objection to them being represented but, as you’ve (myself, Macdonald C) said, that’s not the relevant test and, by saying that, I’m not saying I support their specific submissions. I have no comment to make on legal representation.”(PN 27).

[11] I referred to section 596(2) and that it sets out that the FWC may allow representation by a lawyer or paid agent if one of the three criteria laid down in section 596(2) is met by the party seeking legal representation. I then went on to point out that even if one of the criteria was met, that was not the end of the matter. Section 596(2) has a preamble (“may grant permission”) which makes it clear that even if one of the three criteria is met, the FWC has an obligation to then decide whether to in fact grant the permission for legal representation. That decision is a discretionary decision (“may grant permission”).

[12] I decided, having heard the submissions of Ms Peterson, to exercise my discretion to grant representation.

[13] Ms Katherine Peterson, solicitor, called the following witnesses:

Darren Fletcher - Mechanical Team Leader, BlueScope Steel

Gary Masters - Operations Manager, the Respondent

BACKGROUND

[14] The Applicant was engaged as a Mechanical Fitter on 4 April 2011.

[15] The Respondent provides plant and facilities maintenance services to BlueScope Steel (BlueScope) under an arrangement known as the Alliance Service Contract. The Applicant performed work under this Alliance Service Contract.

[16] The incident for which the Applicant was dismissed occurred on Friday 15 March 2013.

[17] The termination letter of 27 March sets out the reasoning for the dismissal. (Ex. 1, Annx. C) Thus, the Applicant and a Mechanical Fitter Apprentice were undertaking on-site routine maintenance tasks which tasks carried with them a mandatory prerequisite for absolute compliance with all safety rules and regulations relating to work performed on-site at BlueScope.

[18] The termination letter went on to say that whilst performing the work, the Applicant had not implemented or verified proper isolation controls or undertaken documented risk assessment and hazard identification, in line with established Company (the Employer) and client safe-work policy and process. (An isolation means that energy sources are turned off for the plant or equipment being worked on.) Non-compliance with the minimum standards applying to PPE (Personal Protective Equipment) was also identified.

[19] The termination letter also advised that the Applicant had been counselled the week before (7 March 2013) for PPE non-compliance and poor safety behaviours.

[20] The Applicant was summarily dismissed, following his suspension/investigation. It said:

“In accordance with the Company’s Policy and Procedures relating to health and safety compliance and breaches of the Mandatory Safety Rules, management has concluded that the incident on 15 March 2013 was a Reckless Violation of the Mandatory Safety Rule relating to ‘Always verify and tag or lock all energy isolations’ in addition to other health and safety non-compliance. As a consequence, the combined breaches have been categorised as serious misconduct, as your actions were considered to be conduct that is inconsistent with a continuation of the contract of employment; and conduct that causes serious and imminent risk to the health and safety of a person.”

[21] The Apprentice is employed by Illawarra Group Training and he was given a first and final warning in relation to his conduct, according to Mr Darren Fletcher of BlueScope Steel. (Ex. 3, paras 21 to 23)

FINAL SUBMISSIONS

For the Applicant

[22] The AMWU filed written submissions pursuant to Directions issued by the FWC. Oral submissions supplemented the written submissions. A summary of those submissions is as follows:

(a) The Applicant was dismissed for breaching safety requirements in that he failed to implement isolation controls (locking out a valve), failed to complete a written risk assessment (JSEA); and failed to comply with PPE standards.

(b) The Applicant admitted to breaching these procedures on the day of the breaches.

(c) Despite admitting to those breaches, there is no valid reason to support the Applicant’s dismissal, having regard to the Applicant’s conduct and the surrounding circumstances: Section 387(a). For example, the Applicant’s failure to lock out the valve arose in part due to finding that valve already in a closed but not padlocked position. An unknown employee had previously been working in the area and had not padlocked the handle that closed off the air valve. The Applicant had simply forgotten to apply a padlock to the orange coloured handle that he had found in the upright, closed position. In the upright position, the handle shut off the air valve from working. The Applicant rejected the Employer’s claim that he deliberately decided not to apply a padlock to the upright handle. The Applicant’s conduct in not applying a padlock was negligent (unintentional) and not reckless (intentional breach) as claimed by the Employer. And the Applicant disputes that his actions compromised his safety or the safety of the Apprentice. Accordingly, the FWC should find that there was not a valid reason to support the Applicant’s dismissal.

(d) If the FWC finds that there was a valid reason for the dismissal, then the Tribunal needs to consider whether the dismissal was harsh, unjust or unreasonable pursuant to the factors set out in Section 387(a) to (h) inclusive. Those other factors gave rise to the FWC needing to consider the following: differential treatment experienced by the Applicant; length of service and work record; the sanction of dismissal being disproportionate to the conduct of the Applicant; and the impact of the dismissal on the personal and economic circumstances of the Applicant. Having regard to the foregoing, the Applicant’s dismissal was harsh, unjust and unreasonable.

(e) The Applicant sought reinstatement along with the associated orders of back-pay and the maintenance of his continuity of employment.

(f) The onus is on the Respondent to prove the allegations of serious misconduct.

For the Respondent

[23] The Respondent filed written submissions pursuant to Directions issued by the FWC. Oral submissions supplemented the written submissions. A summary of those submissions is as follows:

(a) The Applicant was dismissed without notice for serious misconduct.

(b) The Applicant was dismissed for a valid reason given that the Applicant performed work on 15 March 2013 -

(i) without implementing mandatory isolation lock out procedures for which the Applicant was trained and which constituted a mandatory safety rule breach on site;

(ii) without complying with minimum Personal Protective Equipment (PPE) requirements for the work undertaken; and

(iii) without applying documentary risk assessment or hazard identification processes to a satisfactory level.

(c) Forming part of the valid reason for dismissal was that the Applicant’s conduct on 15 March 2013 showed reckless disregard for established site rules, regulations and the personal safety of the work team because he deliberately decided not to apply a padlock to the orange coloured handle which in the upright, closed position shut the air valve. The Applicant had been trained in relevant procedures and those procedures were enforced on site in accordance with the zero harm commitment of both BlueScope and Transfield (the Employer) in respect of the Basic Oxygen Steelmaking (BOS) operations. Relevantly, the statutory work health and safety obligations of the Applicant and Respondent are absolute.

(d) As well, the Applicant’s conduct compromised the immediate safety and welfare of the Apprentice working with the Applicant at the time.

(e) The modelling behaviour of the Applicant towards the Apprentice was inconsistent with safe work systems.

(f) The Applicant breached the PPE requirements and failed to make out a written risk analysis (JSEA) for the job about to be undertaken.

(g) The combined breaches represented serious misconduct.

(h) The Applicant had been accredited as an isolation co-ordinator and this should be taken into account when assessing the gravity of his failure to comply with mandatory procedures.

(i) The terms of the Applicant’s employment included an express notice that a breach of the Respondent’s Mandatory Safety Rules (MSR) could lead to instant dismissal.

(j) The BlueScope working environment is an inherently hazardous working environment and the Respondent has statutory obligations to ensure the health and safety of its employees.

(k) In response to the AMWU’s written submission, the Respondent, inter alia, rejected that there was no valid reason for the dismissal.

(l) The Respondent was opposed to the Applicant’s case. If, however, the Tribunal found the dismissal unfair, then reinstatement was not appropriate. The Applicant’s conduct in breaching safety procedures resulted in a loss of trust and confidence between the Applicant and the Respondent. If reinstatement was granted, then no order for back pay should be made given the seriousness of the Applicant’s conduct.

CONSIDERATION

[24] Robert Mayer filed an unfair dismissal application on 9 April 2013 against his summary dismissal. (There are dates for the chronology of events in the witness statements of the Applicant and Mr Masters, being dates in June 2013. As these June dates are subsequent to the filing date then I have presumed that the month of June should read the month of March.)

[25] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

a) whether the application was made within the period required in subsection 394(2);

b) whether the person was protected from unfair dismissal;

c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

d) whether the dismissal was a case of genuine redundancy.”

[26] The unfair dismissal application was made thirteen (13) days after termination and was therefore made within the 21 day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.

[27] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised section 382 as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.

[28] Paragraph (c) and (d) of section 396 have no relevance in this case.

[29] The Applicant claimed that he had been unfairly dismissed and sought reinstatement to the job being performed at Bluescope, continuity of service and money for lost remuneration. In the alternate, then reinstatement was sought to an equivalent position within the Respondent’s business operations.

[30] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:

a) “the person has been dismissed; and

b) the dismissal was harsh, unjust or unreasonable; and

c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

d) the dismissal was not a case of genuine redundancy.”

[31] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh, unjust or unreasonable.

[32] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:

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 matter that FWA considers relevant.”

(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);

[33] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.

The 15 March Incident

[34] The Applicant had been engaged as a Mechanical Fitter by the Respondent and carried out maintenance work at the BlueScope site under the Alliance Service Contract between the Respondent and BlueScope.

[35] On 15 March 2013, the Applicant was given a job to work on leaking air valves in the No. 2 Baghouse. The Baghouses are associated with the working of the Basic Oxygen Steelmaking plant. The No 2 Baghouse is a three storey building containing twelve (12) Cells that process dirty gas and air from the BOS furnace and, in doing so, filters and cleans the air. Part of the equipment involved in that Baghouse filtering process are air valves.

[36] The maintenance work is carried out in accordance with established work methods and procedures.

[37] On 15 March 2013, the Applicant was given a job task by Matt Tait (Mechanical Technician) to fix leaking valves in the Number 2 Baghouse. The work order given to him did not match the oral instruction given to the Applicant who raised that at the time with Matt Tait.

[38] The Applicant was given a work mate, being an Apprentice (Jonno MacKillop)

[39] At the Baghouse, the Applicant and the Apprentice attended firstly a work area called Cell 6 to check for air leaks. The two workers fixed this problem by tightening up bolts on a clamp. The Apprentice stayed at Cell 6 whilst the Applicant checked for air leaks at Cell 10. Whilst working on Cell 10, the Apprentice approached and asked the Applicant: “The main isolation dampers are down and the pulse air valve is closed on Cell 6, it’s not locked. Do you know why?” The Applicant responded “No”. (Ex. 1, para 39) The Applicant instructed the Apprentice not to work on Cell 6 until the Applicant had finished working on Cell 10.

[40] The two workers went to Cell 6. The Applicant could not see any lock or tag on the orange coloured handle that worked the pump air valve for Cell 6. (Both BlueScope and the Respondent have safe work methods and procedures, part of which is the application of locks - padlocks - by workers to equipment being worked upon.) In this case, an unknown worker had failed to apply a padlock to the orange coloured handle that worked the pump air valve in order that work could be carried out safely. That is, a padlock kept the handle in the closed, shut off position, and as such acted as an isolator lock to prevent Cell 6 from being started up and allegedly possibly causing risk to an employee(s) working on Cell 6.

[41] The Applicant did not place a lock on the closed orange handle valve before deciding to conduct some tests on Cell 6. This testing involved opening an air supply valve and by that method, a major air leak was indicated. The Applicant asked the Apprentice if Matt Tait had said anything about Cell 6 being closed and the Apprentice answered in the negative. As it was near morning tea, the Applicant decided they would take the matter up with Tait during the break.

[42] The Apprentice spoke to Tait during the break and advised the Applicant that Tait did not know why Cell 6 was shut off but the two workers were to work on Cell 6.

[43] The two returned to the Baghouse and, according to the Applicant, he discussed with the Apprentice the work to be done and the safety issues involved being trip hazards on the floor, the bad lighting and the heat. (Ex. 1, paras 52 to 55) (The significance of this assertion by the Applicant is that he is saying he carried out a verbal risk assessment with his co-worker. However, the Respondent’s and BlueScope’s safe work methods and procedures require a written risk assessment.)

[44] The workers began the process of checking equipment to find the major air leak. But the Applicant failed to apply a lock at all to the orange coloured handle whilst carrying out the checking process. He deposed that: “Because it was already isolated, the thought of putting a lock on didn’t occur to me.” (Ex. 1, para 56)

[45] Whilst looking down to check bolts, the Applicant’s helmet kept falling off. He removed his helmet and placed it on the other side of the room so he would not trip over his helmet. (Ex. 1, para 60) (The helmet is part of his Personal Protective Equipment.)

[46] With further work, he was sweating and became very overheated. He took his shirt off and hung it near the door to dry. (para 61) (His shirt is a high visibility shirt and is part of his Personal Protective Equipment.) The Applicant deposed that he did not think his shirt removal was unsafe, as this is what others sometimes do in the Baghouse in these conditions. (para 62)

[47] The Applicant continued working on the air valves. He said that it had become very humid in the Baghouse, “which meant my safety goggles were fogging up”. (para 64)

[48] He said that the lighting in the Baghouse “is not very good, which has been raised with the Company before”. (para 65)

[49] “With poor lighting and foggy glasses, I was finding it very difficult to see. I took my safety glasses off to address this.” (para 66) He placed his safety glasses in his helmet. (The safety glasses are part of his Personal Protective Equipment.)

[50] Whilst using his reading glasses to examine equipment, the BlueScope Audit Team (three members) came on the scene as part of their safety audit function. The Applicant was questioned about the lack of PPE, his work order for the job, the whereabouts of an isolation lock (there was not one), and the whereabouts of the written risk assessment (there was not one). The Audit Team told him to lock the valve by applying a padlock to the upright orange coloured handle and carry out the written risk assessment known as a JSEA, or JSA or JA.

[51] Following an investigation into the 15 March incident, the Applicant was summarily dismissed on 27 March 2013.

Reasons for Dismissal

[52] The dismissal letter set out three grounds for summary dismissal:

(a) The Applicant failed to lock out a valve by applying a lock in order to prevent the valve from being activated. That failure represented a breach of the Employer’s Mandatory Safety Rule relating to “Always verify and tag or lock all energy isolations”. This failure to isolate an energy source (an air valve) was considered by the Employer to be a “Reckless Violation” of the Mandatory Safety Rules. Ms Peterson described this breach of the Mandatory Safety Rule to be the “principal reason for dismissal.” (PN 529)

(b) The Applicant engaged in another safety breach by removing his PPE.

(c) The Applicant engaged in another safety breach by failing to carry out a job safety analysis by way of the document called the JSEA (otherwise called JA or JSA).

[53] The dismissal letter said that these breaches combined represented serious misconduct because the Applicant’s above actions were considered to be conduct inconsistent with a continuation of the contract of employment. Further, the Applicant’s conduct caused serious and imminent risk to the health and safety of a person.

[54] Ms Peterson submitted that there were other factors aggravating the above reasons for summary dismissal: the Applicant on the day was acting as a mentor (modelling behaviour) to an apprentice and the Applicant was working in an inherently hazardous environment.

[55] At the heart of the principal reason for summary dismissal was a finding by the Employer that the Applicant had deliberately decided not to apply a lock (padlock) to the upright, orange coloured handle that operated the air valve to Cell 6.

[56] The Employer’s finding (per Mr Masters) as to a deliberate decision was based on what the Applicant “said” as to the 15 March incident and did not say. The evidence showed that “said” had two meanings: first hand accounts by the Applicant and a third hand account that arose from an investigator transcribing the Applicant’s account into a report written in the third person. As to what the Applicant did not say meant that the Employer relied upon an absence of explanation by the Applicant for his failure to apply a lock. (Ex. 5, para 30)

[57] The AMWU submitted that the Applicant’s conduct was not deliberate and his failure to apply a padlock to the upright orange handle was because he forgot to do so. This “forgot” could be due to the Applicant being distracted from applying the padlock by assisting the Apprentice with a task or due to outside work personal circumstances about which the Employer had knowledge.

[58] The first account given by the Applicant, as to the failure to apply a padlock, was given to the BlueScope Audit Team on the day of the incident, Friday 15 March. The Applicant deposed he said: “The valve was closed. We didn’t put a lock on it - there’s only two people here, it can’t be accidentally activated. I should have put a lock on.” (Ex. 1, para 76) Mr Masters construes this account to be a deliberate decision not to apply a lock because the Applicant said, in part, “... there’s only two people here, it can’t be accidentally activated...” (Ex. 5, para 30(a))

[59] Under cross-examination, the Applicant agreed that the above quote did not include the response: “I forgot”. He added: “When you’re in shock, you don’t - you say things that - ...”. The Applicant went on to say that although he had not said “I forgot”, it was not to be implied that he had not forgotten. (PN 468 - 471)

[60] That same day, around 12.30 pm, a Mr Kevin Ginnane (an employee of BlueScope) interviewed the Applicant and the Apprentice. Mr Ginnane took notes which are attached to Mr Darren Fletcher’s witness statement. (Ex. 3, DF2) Mr Fletcher is employed by BlueScope Steel. His notes are a third hand account of the incident. The Applicant is not recorded as stating that he deliberately did not apply his padlock.

[61] Mr Masters, in relying upon this Ginnane interview as evidence of the Applicant’s “deliberate” decision not to use a lock, said that the Applicant “had not offered a reason (to Mr Ginnane) for not locking the isolation. This was reflected in the notes provided by Kevin Ginnane (found on page 10 of my Investigation Report) and I also spoke with Kevin about the incident prior to meeting with Mr Mayer (the Applicant) on 18 March 2013”. (Ex. 5, para 30(b))

[62] Mr Ginnane’s notes relevantly state: “At no time during the interview process did RM (the Applicant) offer a reason for not locking out. He acknowledged that he should have done so.”

[63] In my view, no weight can be placed on the foregoing extract to support Mr Master’s “deliberate” conclusion, for the reasoning set out below.

[64] As the AMWU pointed out, Mr Ginnane’s notes of the interview is a third hand account of that interview. It is not a transcript of an interview.

[65] Did Mr Ginnane ask the question: “Why did you not apply a lock?” The interview notes are silent on that question. Mr Ginnane did not appear as a witness. Where the notes say that the Applicant “acknowledged that he should have done so” (apply a lock), then this may have been a volunteered statement by the Applicant, rather than an answer to a question.

[66] The Applicant was cross-examined on the foregoing relevant extract from the interview notes but in a different context going to what was discussed between the Applicant and the Apprentice as to applying a lock. (PN 483 - 491) Thus, there was no questioning of the Applicant as to whether he was asked by Ginnane: “Why did you not apply a lock?”

[67] At the end of the shift of 15 March, (and subsequent to the Ginnane interview), Mr Gary Masters, Operations Manager for the Employer, spoke to the Applicant. The two had not previously met. Mr Masters recorded their conversation as follows:

Masters: “What’s happened today?”

Applicant: “I just fucked up; I don’t know why I did it. (Ex. 5, para 26)

[68] Clearly there is no acknowledgement by the Applicant in his response that he deliberately decided not to apply a lock. To the contrary, his response suggests he has no reason to offer for his failure to apply a lock.

[69] Mr Masters does not refer to this exchange in his conclusion that the Applicant deliberately decided not to apply a lock. (Ex. 5, para 30)

[70] On Monday 18 March, the Applicant was interviewed by Mr Masters who was accompanied by Mr Fletcher. The Applicant was accompanied by Mr Brian Carlon, Consultative Committee Representative. The interview was based on the diary note taken by Mr Kevin Ginnane from 15 March. Mr Masters deposed that the Applicant “did not identify any explanation for his conduct.” (Ex. 5, para 30(c)) Mr Masters relies upon this lack of an explanation to support his positive finding that the Applicant “deliberately” decided not to apply a lock.

[71] But there is an alternate finding available. The lack of an explanation is entirely consistent with the Applicant’s response to Mr Master’s question when they first met on Friday, 15 March: “I just fucked up; I don’t know why I did it”.

[72] Following this meeting, a separate meeting took place between Mr Fletcher and the Applicant and Mr Fletcher prepared a typed statement, in relation to the incident, that set out the Applicant’s recollection. The Applicant signed the statement. (Ex. 3, paras 17 to 20)

[73] The signed statement is included on page 9 of the Employer’s Integrity Investigation Report. (Ex. 1, Annex. A) It is written in the third person by Mr Fletcher. It does not record the Applicant stating that he deliberately did not apply a padlock to the orange coloured handle that operated the air valve.

[74] As to this signed statement, of 18 March, Mr Masters deposed it recorded that the Applicant “had a discussion with Jonathan (the Apprentice) about not needing a personal lock. This is not consistent with forgetting to put one on.” (Ex. 5, para 30(d))

[75] That part of the written record typed up by Mr Fletcher and relied upon by Mr Masters for his conclusion about “deliberate” decision, is confined to one sentence. Thus: “On an oversight, Rob (the Applicant) did not install a multi-lock device, equipment lock or personal lock on the isolator but Rob had a discussion (verbal JSEA) with Jonathan about the isolation and that they were in control of the valve due to its close proximity and not needing a personal lock.” (Ex. 1, Annex. A, page 9 of 18; Ex. 5, GM12, page 9 of 18)

[76] Mr Masters was challenged under cross-examination about this sentence and his conclusion that it represented a “deliberate” decision not to apply a lock. (PN 910 - 933) The challenge was based on the opening words to the sentence: “On an oversight ...” It was put to Mr Masters that his reliance on the second half of the sentence for his “deliberate” conclusion as to not applying a lock was inconsistent with the first half of the same sentence which said a lock was not applied by the Applicant because of “an oversight”. Mr Masters concurred that he had not clarified with the Applicant this internal one sentence inconsistency.

[77] I find that this one sentence is internally inconsistent and by itself, a conclusion cannot be drawn that the Applicant decided not to apply a lock to the valve handle.

[78] I also note that at this point in time (18 March), Mr Masters advised, under cross-examination, that he had not raised with the Applicant that the Applicant had deliberately decided not to apply a lock.

[79] Mr Masters interviewed the Applicant again two days later on Wednesday, 20 March. Arising out of that meeting of 20 March, the Applicant hand wrote a report of the incident and his personal circumstances. (Ex. 1, Annex. B) The Applicant proffers explanations for his failure to apply a lock to the upright orange handle of Cell 6. He stated his mind may have been distracted and “stupidly I forgot to put the lock on.” (page 9 of his report)

[80] I have set out above the four particular matters relied upon by Mr Masters to conclude that the Applicant “deliberately” decided not to apply a lock to the valve handle. These four matters are set out in Mr Masters’ statement. (Ex. 5, para 30)

[81] Having considered those four particular matters and having considered the evidence overall, I am not persuaded that the evidence leads to the conclusion drawn by Mr Masters. The evidence relied upon by Mr Masters contains, in part, third hand accounts and one of those accounts contained a sentence that was internally inconsistent. The first half of that sentence suggests that the Applicant’s explanation is one of “I forgot” to apply a lock and that is consistent with the explanation given by the Applicant on the day of the incident to Mr Masters: “I just fucked up; I don’t know why I did it”.

[82] Having found that the Applicant’s conduct of not applying a lock was not deliberate, I turn to a consideration of the other grounds for dismissal.

[83] The Applicant does not deny the second ground of dismissal: not complying with the minimum Personal Protective Equivalent requirements for the work undertaken. That is, he removed his high visibility vest and his goggles (because of the very hot conditions he was uncomfortable and sweaty) and removed his safety helmet which was falling off his head when he bent over to work on the leaking air valves.

[84] The third ground for dismissal is that he failed to carry out a written mandatory JSEA (Job Safety and Environmental Analysis) before commencing work. The Applicant does not deny breaching the carrying out of a written JSEA but gave evidence that he and the Apprentice carried out a verbal JSEA. (Ex. 1, para 52) A JSEA is carried out by two or more workers in order “to assess the job steps and associated hazards and to determine control measures necessary to prevent workplace incident or injury”. (Ex 5, para 2.2(d))

[85] Under cross-examination, Mr Masters agreed that he had no evidence to disprove the Applicant’s claim that he had carried out a verbal JSEA. (PN 628 - 636)

[86] Not mentioned in the dismissal letter but raised in proceedings was that the Applicant’s failures constituted modelling behaviour towards the Apprentice where such behaviour was inconsistent with safe work procedures.

[87] The Employer submitted that it had a valid reason for dismissal given the foregoing breaches of its policies. The AMWU submitted that the significant breach of failing to apply an isolation lock was not deliberate but was negligent. The Applicant had carried out a verbal JSEA and provided reasoning (very hot working conditions) to explain his PPE removal. Accordingly, the AMWU submitted that there was not a valid reason for dismissal.

[88] Based on the findings I have made about the incident of 15 March 2013, I am satisfied that the Employer had a valid reason to dismiss the Applicant. Although his conduct in not isolating the air valve by applying a lock to the handle was not deliberate, that conduct was still a breach of Employer’s Policies and Procedures. The Employer has “House Rules” whose preamble warns of the possibility of instant dismissal for their breach. The relevant House Rule relied upon to support that it had a valid reason for dismissal is (q) which states: “Failing to comply with safety regulations, safety signs, equipment isolation and Plant entry procedures.” (Ex. 5, GM2)

[89] There is case law that a failure to comply with a lawful and reasonable policy may constitute a valid reason for dismissal, as discussed by the Full Bench majority in B, C and D v Australian Postal Corporation t/as Australia Post[2013] FWCFB 6191:

“[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.”

[90] Although the Full Bench referred to the criterion of a “wilful” breach of a policy, I have found (as considered above) that the Applicant did not engage in a deliberate breach of procedures. Despite finding it was not a deliberate breach, that negligent conduct, combined with the breaches of PPE requirements, represent arguably a substantial breach of Policies and Procedures. The Employer was entitled to find that such breaches constituted a valid reason for dismissal from its perspective.

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

[91] The Applicant does not take issue that he was not notified of the reason for dismissal.

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

[92] The Applicant did not raise this matter as an issue.

(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;

[93] The Applicant did not raise this issue as he had union representation.

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

[94] The reason for termination was not based on the Applicant’s performance.

(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;

[95] The AMWU submitted that the Employer should be held to a high standard by the FWC in determining whether the Applicant’s dismissal was unfair. The high standard was due to the Employer having a dedicated and experienced human resources department. I regret that submission as there was no evidence to support this submission.

(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;

[96] This was not an issue.

(h) any other matters that FWC considers relevant;

[97] The Applicant’s Outline of Submissions (Ex 6) and Reply Submissions (Ex. 7) raised issues for FWC’s consideration that it was submitted supported a finding that the dismissal was harsh, unjust or unreasonable. Issues raised concerning section 387(h) are set out below:

(i) Firstly, my attention was drawn to the Full Bench decision in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 and that its factual scenario is similar to the scenario now before me. The Full Bench found the dismissal of Lawrence to be unfair.

(ii) Secondly, there was differential treatment experienced by the Applicant who was dismissed but other employees who committed similar breaches were not dismissed. I reject this differential submission as no evidence was presented of another employee’s disciplinary outcome for comparative purposes.

(iii) Thirdly, length of service and work record: two years service and a good work record.

(iv) Fourthly, the sanction of termination was disproportionate to the conduct of the Applicant. Further, the Employer’s Policies and Procedures do not state that termination is an automatic result for this specific type of conduct.

(v) Fifthly, the impact of the termination on the personal and economic circumstances of the Applicant: emotional and financial stress.

[98] The Submissions On Behalf of the Respondent (Ex. 8) addressed the matters raised by the AMWU in respect of the relevant factors under consideration: s.387(b) and (c); and (h).

[99] As to (b) and (c), the Respondent stated that the Applicant had been afforded procedural fairness.

[100] As to section 387(h), the Respondent submitted:

(i) Differential Treatment:

There is insufficient evidence to conclude that there has been differential treatment. I concur.

(ii) Length of service and work record:

The Applicant’s slightly less than two years service is not a consideration that overrides the valid reason for dismissal. The Applicant was not subject to other disciplinary action but the seriousness of his conduct means that the dismissal was not unfair.

(iii) Personal Circumstances:

The Applicant’s disclosure of personal matters was considered by the Respondent. His personal and economic circumstances are not relevant to determining if the dismissal was unfair.

Was the Dismissal Unfair ?

[101] I have found that the dismissal of the Applicant was for a valid reason: section 387(a). But was the dismissal unfair having regard to the evidence pertaining to the matters set out in section 387(b) to (h) inclusive? The term “unfair” has three elements as in “harsh”, “unjust” or “unreasonable” dismissal and each of these elements has its own meaning: Byrne v Australian Airlines Ltd [1995] 185 CLR 410.

[102] Even though an employer can have a valid reason for dismissal, it remains a bedrock principle in unfair dismissal jurisprudence that a dismissal may be “harsh, unjust or unreasonable”, even in cases involving breach of an employer’s policy as explained by the majority Full Bench decision in B, C and D v Australian Postal Corporation t/as Australia Post:

“[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].”

[103] In consideration of the “relevant matters” that bear upon whether the dismissal of the Applicant was “harsh, unjust or unreasonable”, I find that his dismissal was harsh, despite the finding that the Employer had a valid reason for the dismissal. The basis for finding that the dismissal was harsh is that the gravity of the Applicant’s conduct did not warrant the ultimate penalty of dismissal.

[104] The Applicant admitted to the conduct raised by his Employer: failure to lock out a valve; failure to complete a written JSEA; and failing to comply with PPE requirements. The letter of dismissal also cast these three reasons as “conduct that causes serious and imminent risk to the health and safety of a person.” (Ex. 1, Annex. C) (underlining added)

Failure to Lock Out A Valve

[105] What was the consequences of failing to apply a lock to the valve handle in the context of risk to the health and safety of an employee in a hazardous environment?

[106] The Applicant’s evidence, under cross-examination, was that “there was no danger to anyone of getting hurt ... (because if the valve was opened up by turning the unlocked orange handle to the open position) ... the air supply (to Cell 6) drained away as well. (PN 339)

[107] He was then asked if there was any risk in that environment of the air being accidentally reactivated. He responded: “No” and added, “because even if you opened the valve, the air drained. It drained every single cell so it was - the system would’ve died.” The consequence, he said, was that the air pressure could never build up. (PN 338 - 345)

[108] Under questioning from myself about the risk of injury, the Applicant reiterated that there was no risk of injury because there was no air pressure as Cell 6 “had a major air leak and for the pressure to build up that had to be corrected.” (PN 417 - 420)

[109] Mr Fletcher of BlueScope Steel was asked by Ms Peterson (for the Respondent) if he agreed with the Applicant’s view that there was no risk/no hazard to anyone at anytime by not applying a lock. He answered: “No”. He was asked to explain his “No” response but that response only went to the mandatory requirement to apply a lock. He did not explain why there would be risk of injury. (PN 690 - 691)

[110] The Employer’s letter of dismissal stated this breach of not applying a lock was “conduct that causes serious and imminent risk to the health and safety of a person”. (underlining added). The Employer did not provide evidence of this alleged serious and imminent risk.

[111] The Applicant asserted that there was no risk and gave an explanation in support. That explanation was not rebutted by the Employer.

[112] Accordingly, I find that the Employer’s reasoning of causes serious and imminent risk of injury for supporting the dismissal of the Applicant for not applying a lock, has not been made out.

[113] That finding further impacts on the disproportionate penalty of dismissal, given that this particular breach was “the principal reason for dismissal ...”, as submitted by Ms Peterson for the Respondent. (PN 529)

Failure to Complete Written JSEA

[114] The Applicant had failed to complete a written JSEA and that is a mandatory requirement. Again this breach was couched as “conduct that causes serious and imminent risk to the health and safety of a person”. (underlining added)

[115] The Applicant conceded he did not make out a written JSEA but he gave evidence that he carried out a verbal JSEA with his co-worker, the Apprentice. That evidence was not rebutted by the Employer by having the Apprentice give evidence to the contrary. The Apprentice was not called to give evidence.

[116] Although the Applicant breached the mandatory rule by not carrying out a written JSEA, I find that he carried out a verbal JSEA with the Apprentice.

[117] There was no evidence that the carrying out of a verbal JSEA caused serious and imminent risk to health and safety of a person.

[118] Accordingly, I find that his breach is not as serious as the Employer contends and that finding impacts on the disproportionate penalty of dismissal.

Failure to Comply With PPE Requirements

[119] The Applicant conceded that he failed to comply with PPE requirements by removing his high visibility vest, his helmet and safety goggles. Again this breach was couched as “conduct that causes serious and imminent risk to health and safety of a person”. (underlining added)

[120] The Applicant removed his helmet because it kept falling off given that he was bent over checking for bolts that needed tightening. (Ex. 1, paras. 59-60) The Applicant also removed his high visibility vest because he was sweating and had become overheated. (paras. 61-62) He then removed his goggles because they had fogged up due to the Baghouse being very humid. He was not able to see because of the foggy glasses and the poor lighting in the Baghouse. (paras. 64-66)

[121] The Applicant gave evidence (not contradicted) in the proceedings that in the Baghouse, the temperature is 15 to 20 degrees higher than outside and the incident occurred on the edge of summer. (PN 161)

[122] Mr Fletcher of BlueScope gave evidence that it would be acceptable to remove PPE, if in doing so, an employee was reducing the risk on the job but such removal of PPE would have to be documented in the JSEA report.

[123] The Applicant and the Apprentice swept the dust from the general area where they were working to reduce the effect of kicking dust particles in the air and have them enter their eyes. (This evidence dealt with the Applicant’s removal of his safety goggles.) Mr Fletcher said that a person could bump their head in the Baghouse but it was not likely - in response to a question that there were no low hanging beams. (This evidence went to the Applicant removing his helmet.) (PN462 - 666)

[124] The Applicant’s evidence that he minimised the risk of dust particles interfering with his eyes (and that of the Apprentice) and that his removal of his PPE requirements was due to the very hot conditions, showed all up that he did not remove his PPE by way of an unreasoned decision. However, he was still required to record his actions in a written JSEA and he did not do so.

Modelling Behaviour

[125] The Respondent also raised against the Applicant that his breaches of the mandatory safety rules in front of the Apprentice was a negative modelling behaviour by the Applicant as a mentor to the Apprentice.

[126] The Applicant gave evidence as to the events of the day including that he carried out a verbal JSEA with the Apprentice as opposed to a written JSEA. However, the failure to apply a lock to the orange coloured handle that controlled the air valve sends the wrong message to the Apprentice as to the observance of safety procedures and, as such, is the wrong modelling behaviour.

SUMMARY

[127] The AMWU submitted that there was no valid reason for the dismissal of the Applicant’s services.

[128] Having considered all of the evidence, I rejected that submission and found that there was a valid reason for the dismissal. The Respondent’s case for a valid dismissal was based on the combined breaches of the mandatory safety rules.

[129] Although I held that there was a valid reason for the dismissal, I found that the dismissal was harsh. I found that way having considered all of the evidence as to the combined breaches and the failure of the Applicant as a mentor to the Apprentice.

[130] The three reasons contained in the letter of dismissal were couched in terms of “causes serious risk and imminent risk to the health and safety of a person”. The three reasons listed were: failure to apply a lock; failure to write up a JSEA and removal of PPE. The Applicant admitted he had breached the mandatory safety rules.

[131] There was no evidence of serious risk and imminent risk presented to myself. This failure to produce evidence to support the claim of any risk (serious or imminent), impacted on my conclusion as to the disproportionate penalty of dismissal.

[132] Further to that finding as to harshness, is the fact that the Employer labelled this breach as the principal reason for dismissal.

[133] The dismissal was also harsh given that the second reason for dismissal was the failure to carry out a written JSEA but the Applicant did carry out a verbal JSEA with the Apprentice as to the work procedures and safety required - before performing the work in the Baghouse. There was no evidence brought by the Employer that the carrying out of a verbal JSEA caused serious and imminent risk to the Applicant and/or the Apprentice.

[134] The third breach was the removal of PPE but such removal was not shown to cause serious and imminent risk.

[135] The additional reasoning for dismissal of inappropriate modelling behaviour was not disputed by the Applicant. But this self admitted wrong by the Applicant does not overturn my view, based on a consideration of all of the evidence, that the dismissal was harsh.

[136] In coming to the view that the dismissal was harsh, I have not taken into account other issues raised by the AMWU such as the Applicant’s length of service, work record and personal/economic circumstances.

Remedy

[137] Given my finding that the dismissal of the Applicant was harsh, it is necessary to consider what remedy should be granted.

[138] The Applicant sought reinstatement, continuity of employment and payment for lost wages.

[139] The Respondent submitted that reinstatement was inappropriate if I found the dismissal unfair. Reinstatement was inappropriate because the Applicant’s conduct of breaching the mandatory safety rules was inconsistent with the responsibility and trust placed in him in respect of his work, including his responsibilities as an authorised “person in charge” and as an “isolation co-ordinator”. This in turn raised the issue of loss of trust and confidence. (Ex. 8, paras. 26-28)

[140] As well, if the FWC decided to order reinstatement, then there should be no order for lost remuneration having regard to the seriousness of the conduct and reasons for dismissal. The Respondent submitted that the circumstances warranted a material sanction being imposed on the Applicant. (para 29)

[141] I reject the Respondent’s submission as to loss of trust and confidence. I observed the demeanour of Mr Fletcher of BlueScope Steel and that of Mr Masters of the Respondent, whilst they gave evidence in the witness box. Neither witness portrayed a demeanour supportive of this particular submission. The Applicant’s demeanour in the witness box was one of contriteness. He acknowledged that he had breached the safety rules. He was not argumentative in his defence.

[142] I find that the appropriate remedy is an order for reinstatement pursuant to section 391.

[143] There was a discussion amongst the advocates and myself about whether I could order reinstatement into his “former position” working in the Baghouse which was at BlueScope Steel. That discussion drew my attention to the Applicant’s “Offer of Full Time (Weekly Hire) Employment”. (Ex. 5, Annex. GM1) This document set out, inter alia, the Applicant’s place of work and I use that information for determining the place of work content of my reinstatement order.

[144] I order that the Applicant’s continuity of employment be maintained, pursuant to section 391(2)(a).

[145] I decline to make an order for payment of lost wages given the Applicant’s conduct of several breaches of the mandatory rules and his inappropriate modelling behaviour. In declining to make an order for lost remuneration, I adopt the reasoning on this issue of the majority Full Bench in: Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at paragraph 44. The majority made an order only for part restitution of lost wages in order to reflect a material sanction for Mr Lawrence’s misconduct after finding that his dismissal was harsh. (Mr Lawrence had removed a lock from an energy source on a mine site and in doing so breached the Company’s Golden Rules and Isolation Policy for safe working procedures.) The majority’s reasoning for the monetary material sanction observed that “the importance of the respondent’s policies (safe working procedures) will be vindicated and no other employee ought be able [to] take any comfort from this decision that breaches of the Isolation Policy will do other than expose them to serious consequences.”

COMMISSIONER

Appearances:

Ms Lucy Saunders, Legal Officer for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

Ms Katherine Peterson, Solicitor, for Transfield Services (Australia) Pty Limited

Hearing details:

2013

Wollongong

August, 7

Printed by authority of the Commonwealth Government Printer

<Price code {C}, PR539752>