The Australian Workers' Union v BlueScope Steel Limited
[2017] FWC 336
•14 FEBRUARY 2017
| [2017] FWC 336 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
BlueScope Steel Limited
(C2016/4266)
COMMISSIONER RIORDAN | WOLLONGONG, 14 FEBRUARY 2017 |
s.739 Application to deal with a dispute.
[1] This decision is in relation to an application by the Australian Workers’ Union, NSW Branch (AWU) on behalf of its member Mr Shane Buckman against BlueScope Steel (AIS) Pty Ltd (BlueScope).
[2] The AWU was represented by its Legal Officer, Ms Jamila Gherjestani. Leave was granted for BlueScope to be represented by Mr Michael Seck of Counsel and Ms Sonia Chandra from Hall and Wilcox.
[3] On 27 May 2016, BlueScope issued Mr Buckman with a final warning letter and a 4 shift suspension as a disciplinary measure for his alleged misconduct. The AWU is challenging this disciplinary outcome.
[4] BlueScope submitted that the disciplinary action was appropriate due to the severity of Mr Buckman’s misconduct. BlueScope split the disciplinary action into two outcomes, namely;
(a) a final written warning; and
(b) a 4 day suspension.
[5] BlueScope argued that the Fair Work Commission (FWC) does not have the jurisdiction to order BlueScope to remove Mr Buckman’s final written warning on the basis that the disciplinary policy is an internal BlueScope document and not a provision of the BlueScope Steel Port Kembla Steelworks Agreement 2015 1(the Agreement). BlueScope accepted that the FWC does have jurisdiction to deal with Mr Buckman’s 4 day suspension.
Background
[6] Mr Buckman is employed as a refractory bricklayer. Mr Buckman commenced employment with BlueScope on 9 September 1996. Mr Buckman has been a delegate for the AWU for 20 years.
[7] In early April 2016, Mr Buckman purchased some “seconds” bricks for his personal use from a Wollongong company called Shinagawa Refractory (Shinagawa). BlueScope also sources bricks from Shinagawa.
[8] In the week commencing 9 May 2016, Mr Mark Lawless, a BlueScope employee who deals regularly with Shinagawa, advised Mr Chris Kollias, Team Leader Refractory Services at BlueScope and Mr Buckman’s immediate Supervisor, that if Mr Buckman does not pick up his bricks from Shinagawa soon then they will be thrown out.
[9] Mr Kollias conducted a regular toolbox meeting at normal start time on Friday, 13 May 2016 in the Refractory Services Department. At the conclusion of this meeting, a discussion occurred between Mr Buckman and a few members of the group as to the best route to travel from BlueScope to Shinagawa, which is located at Unanderra, New South Wales.
[10] Mr Buckman claims that during this discussion he asked permission from Mr Kollias to use BlueScope’s truck at lunchtime to travel to Shinagawa and collect his bricks. Mr Buckman claims that Mr Kollias gave him permission to use the truck and that Mr Kollias was an active participant in the discussion on the best route to Shinagawa. Mr Kollias denies that he was involved in the discussion or that he gave express permission for Mr Buckman to use the truck to collect his bricks.
[11] At lunchtime, an employee delivered the truck to where Mr Buckman was working. Mr Kollias saw Mr Buckman get into the truck and advised him to “take care”.
[12] Mr Buckman collected his bricks from Shinagawa. They were spread over two pallets. Mr Buckman placed one pallet on top of the other to transport the bricks back to BlueScope. Mr Buckman claims that he used bricks from the bottom pallet to build up the top pallet in order to adequately secure the load using two straps. This left a number of loose bricks on the bottom pallet. BlueScope claim that the load was not secured in accordance with their procedures and that this scenario created an unacceptable safety hazard for BlueScope employees and the general public. Mr Buckman claimed that he was very safety conscious and the pallet was very secure. Mr Buckman stressed that the only loose bricks were facing down the tray of the truck and that if they dislodged from the pallet then they would simply fall into the back of the truck. The truck has sides which are approximately 20cm high.
[13] When Mr Buckman returned to BlueScope, he used BlueScope’s forklift to remove the bricks from the truck and stored the bricks in the shed adjacent to where he worked. BlueScope claim that Mr Buckman did not seek authorisation to use the BlueScope forklift, nor did they give permission for Mr Buckman to store his bricks on site at BlueScope.
[14] On Monday 16 May 2016, a substantial oil leak was discovered leaking from BlueScope’s forklift. This leak could allegedly be traced back to Mr Buckman’s pallet of bricks. Mr Buckman was confronted by Mr Cugaly, the Refractory Manager, and three other Managers in relation to Mr Buckman’s bricks that had been stored in the shed. Later that day, Mr Cugaly commenced an investigation into the matter. Mr Buckman was invited to a meeting with Mr Cugaly. Mr Greg Wall accompanied Mr Buckman as his support person. At the conclusion of the meeting, Mr Buckman was stood down with pay to allow BlueScope to further investigate and consider the matter.
[15] On 18 May 2016, Mr Buckman again met with Mr Cugaly along with Mr Wayne Phillips, an Assistant Secretary of the AWU. Mr Buckman was issued with a final written warning and a 4 day suspension in the following terms;
“27/05/16
Employee’s name: Shane Buckman
Final Written Warning and Suspension
Misconduct: - Unauthorised Use of Company Equipment/Premises.
Misconduct: - Failure to Follow Safe Working Procedures.
Dear Shane
Further to our recent discussion on May 18th 2016 regarding an incident, of a report where you had carried out several unauthorised practices, my investigation has revealed the following:-
- You used a company truck to transport a part pallet of bricks on the 13th of May 2016, intended for your personal use, from an offsite Refractory material supplier to the onsite form work shed located outside the Refractory casting shop. This occurred in work time during your crib break. You did not ask for authorisation from your team leader to use the company truck.
- You then used a company forklift on the 13th of May 2016, intended for your personal use, to unload the part pallet of bricks off the company truck outside the casting shop. This occurred in work time during your crib break. You did not ask for authorisation from your team leader to use the company forklift.
- You then used company premises that being our form work shed on the 13th of May 2016 to store the part pallet of bricks, intended for your personal use. You did not ask for authorisation from your team leader to use the form work shed for storage of items that you had intended for personal use.
- During the initial investigation on the 16th of May 2016 you had stated that your team leader was aware of the above listed actions being undertaken by you. Subsequent investigation, and then admission from you, has revealed that you did not have the authorisation from your team leader to undertake any of the above actions and that your team leader was therefore not aware of the above listed actions undertaken by you.
Furthermore, the investigation has revealed the failure by you to follow safe working procedures for:-
- Effective load restraint of the part pallet of bricks while using a company truck. It is recognised that you had strapped the part pallet. However several of the bricks were not restrained by the strap and therefore the pallet was transported on public and private roads without all the bricks being fully load restrained.
These breaches by you have identified a failure to follow:-
- The requirement to seek authorisation before the use of any company equipment and property where the intent of these actions was for your personal benefit.
- The requirement to ensure that all loads are adequately load restrained.
As a result of your unacceptable actions you are issued with this Final Written Warning. You have also been suspended for a period of four ten hour shift without pay commencing Thursday 19/5/2016.
Shane, you are accountable for your actions where you must ensure that all the code of conduct requirements and safe working requirements are always followed by you.
On your return to work on Friday 27/5/16, before resuming work, you will be retrained in several company procedures to ensure that you clearly understand the code of conduct requirements and safe working procedures. Training will include:
- Company Cardinal Rules
- Load Restraint Guidelines for Refractory Materials
Failure to meet company requirements including further misconduct or failure to follow
safe working practices as outlined above may, after review, lead to further disciplinary
action up to and including dismissal.
Regards
Paul Cugaly
Refractory Manager” 2
Brief Summary of the Evidence
[16] Mr Buckman stated that he is very safety conscious. Mr Buckman testified that the way that he secured the load was the safest and most appropriate way of bonding the load. Mr Buckman refuted the suggestion from BlueScope that the load was not secured in accordance with BlueScope’s guidelines and procedures. Mr Buckman identified that the training that he had received (and which had been identified by management in this scenario) was for a table top truck, ie, a truck without sides. Relevantly, the BlueScope truck did have sides which were approximately 20cm high.
“PN366
Were there loose items there?---What you would deem loose - perhaps you could call loose but in my 20 years of experience of strapping loads for the company I would not call this unsafe at all.” 3
“PN417
So I know it's also in the evidence but could you explain to me, looking at that diagram, how you secured the load?---Okay: the reason for a couple of those bricks missing on that bottom pallet is that I had removed them so I could secure the top pallet. If you see that top pallet, you see how the bricks have bonded and staggered over the top of each of the joins?
PN418
Yes?---That is for the bundle tied in. So the strap would go over them two top bricks on that pallet, putting downward force and pressure on the rest of the bricks. That is - that restrains them. That stops any movement. That puts downward pressure on to the pallet which is putting downward pressure to the initial bottom pallet.
PN419
Right, so the bricks on the bottom pallet couldn't move?---No, there's significant force using those two straps on that top pallet, coming down bearing the load on to the body, stopping those bricks from dislodging in any way. I needed those couple of bricks that you see missing to insure that that top pallet was going to be bonded. I needed those bricks so I was conscious of the fact that I needed to tie this load properly, Commissioner.
PN420
Okay. All right?---So, yes, I thought that would be the safest method and the method we've been taught and we have used as a department and as tradesmen for, you know, for forever and a day, so…” 4
[17] Mr Buckman testified that he knew that the protocol in using the truck at lunchtime is based on employee request and management approval. Mr Buckman claimed that he followed this protocol by asking Mr Kollias to use the vehicle in the toolbox discussion on 13 May 2016. Mr Buckman accepted that he had not sought permission to use the forklift but stated that it was common practice for this to occur. Mr Buckman claimed that Mr Kollias told him to take care as he went to drive away in the truck.
[18] Mr Buckman testified that the forklift was not leaking oil after he had used it at lunchtime on 13 May 2016. Mr Buckman claimed that the forklift had been used on both Friday afternoon and Monday morning by BlueScope personnel and that the forklift would have undergone an inspection before it was used on both occasions. Further, Mr Buckman stated that the oil leak trail that was seen by Mr Cugaly on 16 May 2016 was a fresh oil leak that was discovered on the Monday. This evidence was not contradicted by any other witness.
[19] Mr David Dellapina is a very experienced level 4 refractory bricklayer having worked at BlueScope for over 33 years. Mr Dellapina regularly acts as the team leader of the department when the appointed team leader is not at work.
[20] Mr Dellapina confirmed that a new procedure to secure loads has been introduced at BlueScope since the incident involving Mr Buckman. Further, Mr Dellapina testified that the way Mr Buckman had tied down his load of bricks on 13 May 2016 was appropriate.
[21] Mr Dellapina provided uncontested evidence in relation to a department meeting that was held whilst Mr Buckman was serving his suspension;
“5. My response to paragraph [14] and [15] of the Cugaly Statement are as follows:
…(iii) Sometime during mid May 2016 when Shane Buckman was stood down, a meeting was held.
(iv) Present at the meeting were all employees working at the site on this day (approximately 15 employees), Mr Cugaly and Mr Kollias. (Mr Holland may have also been present).
(v) In the meeting, we were informed that Mr Buckman had been stood down and one of the reasons for him being stood down was for allegedly using the work truck without first seeking authorisation from Mr Kollias. We were also informed that Mr Cugaly had commenced and investigation into the incident.
(vi) During the meeting, I said words to the effect,
“Paul (Cugaly)I believe what has happened to Shane is wrong. To tell you the truth nearly all the people in this room both wages and those in the office (staff) have used the work truck, sometimes with permission and sometimes witout for personal using during work time. I think you should have told Shane to get rid of the bricks and then drawn a line in the sand to say that what’s happened in the past is not going to happen from now on.”
(vii) No one present, staff and employees including Mr Cugaly questioned or denied my statement.” 5
[22] Mr Wall is a level 4 bricklayer at BlueScope with more than 20 years’ experience. Mr Wall testified that Mr Buckman and Mr Kollias were involved in a discussion at the end of the toolbox meeting. Mr Wall was sitting a few metres from them and claimed that the discussion between Mr Buckman and Mr Kollias was about Mr Buckman collecting his bricks from Shinagawa in the work truck.
[23] Mr Wall advised that he could not confirm or deny the veracity of Mr Cugaly’s notes from the meeting that occurred on 13 May 2016 where he was the support person of Mr Buckman. Mr Wall advised that Mr Buckman was getting worked up during this meeting. Mr Wall claimed that Mr Buckman was stressed. After the meeting, Mr Buckman told Mr Wall that he thought the whole investigation was a witch hunt.
[24] Relevantly, Mr Wall regarded Mr Buckman’s efforts in securing the load of bricks as being appropriate.
“PN669
Would you regard the way that he secured the load as being appropriate?---I would. Yes. I definitely would. Because there was two tie downs on the truck, and he tied the load over and secured it. I thought it was quite good. Yes.” 6
[25] Mr Bryan Sheil is also a leading hand level 4 bricklayer and has been employed at BlueScope for 25 years. Mr Sheil was working with Mr Buckman on the morning of 13 May 2016 and testified that another employee brought the work truck to Mr Buckman at lunchtime. Mr Sheil’s acknowledged that he did not hear Mr Buckman ask Mr Kollias for express permission to use the truck but heard the discussion between Mr Buckman and Mr Kollias on the best way to get to Shinagawa at the toolbox meeting earlier in the day.
[26] Mr Benjamin Croft has been employed by BlueScope as a refractory bricklayer for more than 9 years. Mr Croft advised that he participated in the discussion with Mr Buckman and Mr Kollias on the best route to Shinagawa. Relevantly, Mr Croft confirmed that Mr Kollias had given permission to Mr Buckman to use the work vehicle during the discussion to pick up his bricks on that day from Shinagawa.
[27] Mr Cugaly has been the Refractory Manager since September 2015. He was the Refractory Installations Manager from April 2013 – September 2015 and has been employed by BlueScope since 1986.
[28] Mr Cugaly conducted the investigation into Mr Buckman’s incident. Mr Cugaly took notes during the meeting with Mr Buckman and Mr Wall on 13 May 2016 and then supplemented these notes after the meeting. Mr Cugaly’s notes are, relevantly, very concise.
[29] Mr Cugaly claims that Mr Buckman advised him during this meeting that he had not explicitly asked Mr Kollias for permission to use the company truck to pick up his bricks from Shinagawa.
“1:15pm
12 …SB had said the was going to use the ruck in his time and said that CK was Ok with this and that CK said to take care. PC asked SB whether CK was aware that the truck was being used to drive out to Shinagawa in Unanderra and return a part pallet of bricks to our BSL site for later personal use. SB said he would not have said to CK that he was using the truck to pick up bricks from Shinagawa but said that CK was aware that he had bricks waiting from Shinagawa.
PC asked SB what he had meant by his comment and he said that CK was aware that SB was going to source bricks from Shinagawa. PC asked whether CK would have known if he was going to use the works truck in his lunch to return to work with a pallet of bricks on the 13/5. SB said he had not said this to CK when requesting the truck on the 13/5, rather just asking to use the truck…” 7
(my emphasis)
[30] Mr Buckman did not recall making this comment. Mr Wall could not recall whether or not this comment had been made. When questions why he would possibly make such a comment, Mr Buckman replied that Mr Kollias was a good friend of his and that he may have been trying to help him.
[31] At the conclusion of this meeting, Mr Cugaly decided to stand Mr Buckman down, with pay, whilst he conducted his investigation.
[32] Mr Cugaly advised that there were four aspects of Mr Buckman’s misconduct, namely;
a) the unauthorised use of the truck;
b) the unauthorised use of the forklift;
c) the unauthorised storing of the bricks on BlueScope’s premises; and
d) the unsafe manner in which Mr Buckman restrained the load.
[33] Mr Cugaly advised that he took his disciplinary action recommendation to an internal peer review who agreed with his recommendation.
[34] Mr Cugaly testified that he took into account Mr Buckman’s workplace history, accepting that his previous final warning was way back in 2003 and that there had been no documented issues since 2007.
[35] Mr Kollias is the Team Leader of Refractory Services at BlueScope. Mr Kollias has been employed by BlueScope for approximately 11 years.
[36] Mr Kollias conducts a toolbox meeting every morning that he is at work.
[37] Mr Kollias claims that whilst he heard a number of employees discussing the best route to Shinagawa, he was not personally involved in the discussion.
[38] Mr Kollias agreed that he saw Mr Buckman get into the truck during lunchtime on 13 May 2016 but assumed that he was going off site to buy his lunch. Mr Kollias testified that he was approximately 2 – 3 metres away from Mr Buckman when he got into the truck. Mr Kollias acknowledged that he told Mr Buckman to “take care” but that is a comment that he regularly makes to employees going out onto a public road.
[39] Mr Kollias advised that he had no problem with Mr Buckman or any other employee taking the truck out to buy his lunch. Mr Kollias witness statement states;
“11…Employees do not contact me to use the Company truck to get food during their lunch breaks. It is presumed that when they are using the Company truck during their break it is to get food.” 8
[40] In response to questions from the FWC as presently constituted, Mr Kollias made the following replies;
“PN969
So the window was down, and you just said, waved him off and said, "Take care". There was no issue about him using the truck to go outside, was there?---No, not at all.
PN974
So the issue for you with Mr Buckman was that he - you didn't know he was going out to pick up bricks?---That is correct.” 9
[41] Mr Kollias did not want to give an opinion on the way that Mr Buckman had secured the load of bricks because he had not seen how the load had been secured. When pushed for a comment, Mr Kollias made the following comment;
“PN988
And that there are four bricks that are loose at one end of the pallet. That end faces the back tray of the truck, and that the sides are solid, and it's secured the way that it has been secured, with the ties over the top. Is that an unsafe way to secure the load?---If you're going by procedure, no. Visually, it looks solid, apart from the bricks in the centre, which were loose. From what I can recall, there were leaves and stuff in that as well. I don't know what sort of state it was at the time of the incident.” 10
[42] Mr Kollias accepted that there would be times when employees have had to transport bricks back from a job that have been loose in the back of the truck.
[43] Mr Holland has been employed as the Iron Making Refractory Co-Ordinator at BlueScope since 2010. He started at the Company in 1979 and has worked in Refractory Services since 1992.
[44] Mr Holland assumes the role of Team Leader every Monday because Mr Kollias does not work on Mondays.
[45] Mr Holland testified that employees were required to seek permission to use the company truck for personal reasons, including buying their lunch off site.
[46] Mr Holland was part of the conversation that took place in the shed with Mr Buckman and Mr Cugaly on the morning of May 16. Mr Holland claims that the following comments were made as part of that conversation;
“14 Mr Cuglay asked Mr Buckman whether his team leader was aware that Mr Buckman had used the Company truck to bring the bricks back. Mr Buckman replied with words to the effect of:
“Yes I told Chris [Kollias] that I was using the truck to pick up my bricks.” 11
Submissions
[47] The AWU submitted that its evidence has proven that Mr Buckman had authorisation to use BlueScope’s truck and that the load of bricks that he transported had been restrained adequately.
[48] Further, the AWU argued that it had been practice for employees to cart half pallets of bricks in the manner undertaken by Mr Buckman and that this work practice has only changed since Mr Buckman’s incident. (Employees are now required to apply two layers of plastic wrap around the load).
[49] The AWU submitted that a number of Mr Buckman’s work colleagues heard the conversation and/or participated in the conversation with Mr Kollias in relation to the collection of his bricks in the BlueScope vehicle from Shinagawa.
[50] The AWU also raised concerns about the procedural fairness aspects of Mr Cugaly’s investigation. The AWU referred me to clause 35.3.1(a) of the Agreement, which states;
“35.3 Stand Down of Employees and Summary Dismissal
35.3.1 Stand Down
The Company has the right to stand an employee down for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee.
The Company may deduct payment for any day or portion of a day during which the
employee is stood down, subject to the following:
(a) Investigation - No employee may be stood down before an adequate investigation of the circumstances of the alleged offence has been made or before the employee has had an opportunity to state his or her case and present witnesses to the facts. This does not apply in the case of a group standing down.”
[51] The AWU argued that Mr Cugaly had not concluded his investigation when Mr Buckman was initially stood down with pay. Also, Mr Buckman was not given an opportunity to respond to any written allegations.
[52] In relation to BlueScope’s jurisdictional objection, the AWU referred me to Vice President Hatcher’s decision 12 on this application where His Honour held;
“[8] The AWU’s second submission has more substance. In Hay Point Services Pty Ltd v CFMEUthe Full Bench considered a submission that a dispute which raised a number of issues was, in respect of some but not all of those issues, not a “dispute related to a matter arising under the Agreement”. 13 The Full Bench said:
“[10] Mr Wood submitted that Fair Work Australia has jurisdiction to deal with the relating matters but not the non-relating matters.
[11] We do not accept that submission. The dispute is a dispute about the introduction of the new Policy. HPS concedes that the dispute as to some of its aspects relates to a matter arising under the Agreement. That is clearly so and the concession is properly made.
[12] To seek to dissect the dispute into several components is highly artificial and, in our view, untenable. Given that the dispute, or at least part of it, relates to a matter arising under the Agreement, the disputes resolution process in clause 22 is enlivened. That process allows the parties to refer the dispute to Fair Work Australia if the parties have been unable to resolve their differences. The process requires Fair Work Australia, as a first stage, to attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation. It is only if the dispute is unable to be resolved in the first stage that Fair Work Australia is able to arbitrate and make a binding determination.
[13] It is trite to say that during the first stage no binding determination can be made by Fair Work Australia.
[14] We see no jurisdictional impediment to the matter progressing to the first stage. During that stage the nature of the dispute might change as agreement is reached on some aspects or other aspects are clarified or restated, as is typically what occurs during conciliation or mediation. As was said, albeit in relation to different legislation, ‘[i]f the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies’ [R v Bain; Ex parte Cadbury Schweppes Australia Ltd [1984] HCA 9; (1984) 159 CLR 163 per Brennan & Deane JJ].”
[9] Specific aspects of a “dispute” the subject of an application under s.739 which concerns issues so disparate and disconnected that it is, in fact, an aggregate of a number of discrete disputes some of which are about matters arising under the Agreement and some of which are not might properly be the subject of a jurisdictional challenge at the outset before conciliation has commenced. However that is not the case here. The dispute essentially concerns whether Mr Buckman misconducted himself in a way which justified the disciplinary action taken by BlueScope against him. The issues of the stand-down and the final warning letter cannot readily be dissected into separate components (to borrow the language of Hay Point Services) because they both arose from a single substratum of facts - that is, they both arose from Mr Buckman’s alleged unauthorised use of BlueScope’s truck for personal purposes.
[10] The first sentence of clause 35.3.1 of the Agreement specifies the circumstances in which BlueScope may stand down an employee as follows:
“The Company has the right to stand an employee down for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee.”
[11] The clause goes on to provide that an employee may only be stood down without pay subject to there being, among other things, a proper investigation, an opportunity for the employee to be heard, and an entitlement to an internal appeal.
[12] A conclusion on BlueScope’s part that Mr Buckman misconducted himself was a (relevantly) pre-requisite for the exercise of the power in clause 35.3.1 to stand him down. A dispute which centrally questions whether BlueScope had a proper basis to conclude that Mr Buckman did in fact engage in any misconduct in his use of the BlueScope truck is therefore necessarily one about a matter which arises under clause 35.3.1. That is the case irrespective of the fact that same conclusion founded the final warning letter which was issued to Mr Buckman. In that context it would be entirely artificial to treat the final warning letter as a matter severable from the identified dispute to which clause 35.1 applies, since it is simply a manifestation of that dispute.
[13] If the dispute is ultimately the subject of arbitration, and the AWU is able to satisfy the Commission that Mr Buckman did not engage in any misconduct in his use of the BlueScope truck, a question may then arise as to whether the Commission has the power to require the final warning letter to be withdrawn. However that does not provide any proper basis to attempt to sever the issue of the final warning letter from the dispute the subject of the application at this early stage before conciliation has even occurred.”
[53] Finally, the AWU submitted that Mr Buckman was not guilty of misconduct and that, as a result, Mr Buckman’s final warning should be revoked and Mr Buckman should be paid for the four days that he was stood down.
[54] BlueScope submitted that Mr Buckman had been the subject of a thorough investigation by Mr Cugaly and that the penalty that had been handed down was appropriate on the basis that Mr Buckman had not sought express permission to use the Company vehicle and because he has breached BlueScope’s load restraint guidelines.
[55] BlueScope argued that the first issue is simply a question of whether Mr Buckman or Mr Kollias should be believed. BlueScope pointed to the unreliability of Mr Buckman’s memory as a relevant consideration in these proceedings. BlueScope submitted that the meeting notes of Mr Cugaly, a meeting which occurred just a few days after the incident, are the most accurate description of the incident.
[56] BlueScope’s Counsel, Mr Seck, provided his analysis of what may have actually transpired;
“PN1125
Those circumstances, in my submission, demonstrate what's more than likely to have happened is this, Mr Buckman told Mr Kollias that he had to go and pick up bricks from Shinagawa. Then there was discussion at the toolbox meeting about going to pick up the bricks from Shinagawa, and the best route to get there. He assumed that from that, Mr Kollias knew he must be using it to go in the company truck to get the bricks. Mr Kollias hadn't joined those particular dots, because nothing had been put to him expressly by Mr Buckman about using the company truck during lunch hours.
PN1126
Mr Buckman then used the company truck at lunch time on 13 May, thinking he had authorisation to do so, when Mr Kollias believed no express authorisation had been given, and the evidence demonstrates that the witnesses who are present there don't remember such a discussion either. Not in those express terms. The fact that subsequently in the meeting of the 16th, that version of what occurred was more or less recited by Mr Buckman to the company, confirms that's more likely to be the story. In my submission, that evidence makes it more than likely that Mr Buckman did not seek express authorisation from Mr Kollias to use the company truck.
Can I then deal with the question of the load guidelines, Commissioner. Or can I just deal with the question about giving authorisation based on custom and practice. It appears that's not a point that's pressed any longer. The two reasons for that is this, that Mr Buckman himself admitted that the procedure which applied for using the company truck for personal purposes was to obtain express authorisation from the company.” 14
[57] BlueScope submitted that it was irrelevant what Mr Buckman’s colleagues thought about how Mr Buckman had secured the bricks, the only question was whether they were secured in accordance with BlueScope’s procedure.
[58] BlueScope argued that the bricks were not secured properly and therefore the transportation of the bricks in this manner created a safety issue for BlueScope, its employees and the general public. BlueScope argued that Mr Buckman should have restacked the bricks and then placed the empty pallet on top of the bricks and strapped it down.
[59] BlueScope also raised, albeit very briefly, that Mr Buckman had used the forklift without authorisation and stored the bricks onsite without authorisation.
[60] Finally, BlueScope addressed the issue of the FWC’s jurisdiction. BlueScope accepts that the FWC has jurisdiction to deal with the issue of the stand down.
“PN1163
If, Commissioner, you find that the stand down was invalid, because there wasn't misconduct which took place to justify a stand down, then it would just simply be an invalid decision and the employee would be entitled to his wages. That would be the very simple answer to it. But the Commission could equally come to the view that stand down was justified, but four days was too long. That's a matter for the Commission ultimately to determine.” 15
[61] BlueScope submitted that the 4 day suspension was a fair and proportionate response to Mr Buckman’s misconduct.
[62] In relation to the FWC’s power to revoke the final warning that was given to Mr Buckman, BlueScope posited;
“Our submission is that the power to grant the warning must be under the agreement for the permission to actually revoke the warning. The fact that it forms part of the matter doesn't mean the Commission can't consider it. We accept that, and that's what Hatcher VP says. If it's intricately bound together, we can give you (indistinct) of it, and you can make determinations on the issue. But the specific power to give a warning isn't sourced in the enterprise agreement itself. It's sourced in the company's right as an employer to take appropriate steps, as it considers suitable, to deal with misconduct and poor performance in the workplace.” 16
[63] BlueScope argued that on the basis that the disciplinary procedure is not contained in the Agreement, the FWC does not have the jurisdiction to deal with Mr Buckman’s final warning.
Consideration
[64] I have taken into account all of the evidence and submissions that have been presented during these proceedings. The fact that some issues do not appear in this written decision does not mean that they have not been considered or taken into account when reaching my decision.
[65] I have taken into account that the investigation by BlueScope into Mr Buckman’s actions concluded that Mr Buckman was guilty of misconduct.
[66] The Concise Oxford Dictionary defines “misconduct” to mean: “Unacceptable or improper behaviour.” The Collins Dictionary defines “misconduct” to mean: “behaviour, such as adultery or professional negligence, that is regarded as immoral or unethical.” I have taken these definitions into account.
[67] I note that Mr Dellapina put an alternative outcome to Mr Cugaly at a meeting of employees after Mr Buckman had been stood down. I note that Mr Cugaly did not respond to Mr Dellapina’s suggestion. I have taken this into account.
[68] I have taken into account the overwhelming evidence that Mr Kollias actively participated in a discussion with Mr Buckman in relation to the best route for Ms Buckman to take to get to Shinagawa on the morning of 13 May 2016.
[69] I have taken into account the evidence of Mr Croft and Mr Wall who overheard Mr Buckman comment to Mr Kollias about the need to use the work truck to pick up his bricks from Shinagawa.
[70] Mr Buckman was not working with the truck on the morning of 13 May 2016. The truck was delivered to where Mr Buckman was working at approximately 12noon by one of his colleagues. Obviously Mr Buckman’s work colleagues knew that he needed to use the truck at lunchtime on that day. I have taken this into account.
[71] I have taken into account that Mr Kollias advised Mr Buckman to “take care” as he drove off in the truck. I note that he did not ask where he was going.
[72] I have taken into account the obvious conflict and confusion amongst all employees in relation to the policy/protocol surrounding the use of the Company truck. Mr Buckman claims that an employee needs express permission to use the truck. Mr Holland agrees. Mr Kollias claims that an employee only needs permission if using the truck for a purpose apart from buying lunch. Both Mr Dellapina and Mr Buckman testified that the truck has been used by both wages and staff employees in the past without permission.
[73] I have taken into account that Mr Buckman was trained on BlueScope’s load restraint guidelines. I note that this training was based on securing a load on a table top truck. It is not in dispute that the BlueScope truck in this incident had sides approximately 20cm in height.
[74] I have taken into account that very little mention was made in the proceedings in relation to Mr Buckman’s alleged unauthorised use of the forklift and the unauthorised storage of the bricks at BlueScope.
[75] I have taken into account that a number of Mr Buckman’s experienced colleagues believe that Mr Buckman had secured the load of bricks appropriately. I note that Mr Kollias did not want to be definitive on the issue.
[76] I have taken into account that Mr Cugaly has no personal practical experience in securing loads.
[77] I have taken into account the conflicting answers that were given by Mr Buckman in his two discussions with Mr Cugaly on 16 May 2016. When first asked by Mr Cugaly whether he had express permission to use the truck to collect his bricks he said yes but a few hours later he stated that he did not have express permission. I acknowledge that Mr Buckman was suffering from stress when questioned by Mr Cugaly at the second meeting.
[78] I have taken into account that Mr Buckman and Mr Kollias are good friends outside of work.
[79] I have taken into account that Mr Buckman is very proud of his history and service at BlueScope and that he is the first and only adult apprentice to be indentured from the shop floor.
[80] I have taken into account that Mr Buckman has not received a formal warning of any description for the last 13 years. I note that he received a final written warning for fighting in the workplace in 2003. Mr Buckman provided undisputed evidence that he had been attacked by a fellow employee who was under the influence of drugs and that he had simply defended himself.
Conclusion
[81] I find that a conversation did occur at the conclusion of the toolbox meeting on 13 May 2016 in relation to Mr Buckman’s bricks at Shinagawa. I accept the evidence of Mr Croft and Mr Wall that Mr Buckman advised Mr Kollias that he needed to use the truck to go and pick up his bricks from Shinagawa on 13 May 2016.
[82] I accept the evidence of Mr Dellapina, whom I regard as a very credible witness, that the vehicle has been used in the past by both wages and staff employees without the express permission of management.
[83] It is apparent that no strict policy exists at the Refractory Department in relation to the use of the Company vehicle. No written policy is in existence. The application of this policy clearly varies from Mr Kollias, Mr Holland and Mr Dellapina.
[84] I accept the plausibility of the majority of the summary espoused by Mr Seck. I am in no doubt that Mr Buckman believed that he had permission to use the truck to pick up his bricks. I do not accept the evidence of Mr Kollias in relation to his non-participation in the discussion at the conclusion of the toolbox meeting. I find that Mr Kollias was consulted and did not object to Mr Buckman using the truck but accept that he may not have given expressed permission for Mr Buckman to travel to Shinagawa in BlueScope’s truck.
[85] I am not convinced that Mr Buckman received expressed permission to use the BlueScope forklift or to store his bricks at BlueScope. However, it is obvious that Mr Buckman thought he had approval, whether that approval was real or implied. Logic would dictate that if Mr Buckman was picking up his bricks during lunchtime, that the only way to get them out of the truck during his lunch break would be to use the forklift.
[86] It is also logical for the assumption that Mr Buckman would store the bricks on-site, at least for the rest of the day. I note that the area where Mr Buckman stored the bricks appears to be very dirty and is littered with old, but operational washing machines, old furniture and old equipment.
[87] Whilst concerned about the manner in which Mr Buckman sought permission to use the truck, I find that the interaction between Mr Buckamn and Mr Kollias was nothing more than a misunderstanding – not misconduct. I do not regard the actions of Mr Buckman in using the BlueScope vehicle to pick up the bricks from Shinagawa, using the BlueScope forklift to remove the bricks from the truck and storing the bricks in an area where there is an abundance of room and old furniture as unacceptable, improper, immoral or unethical behaviour. The evidence shows that this type of conduct has been undertaken and condoned in the Refractory Department in the past. If BlueScope wish to change this behaviour, then they should adopt the suggestion of Mr Dellapina and advise all employees of the change in protocol and expectation.
[88] However, I agree that Mr Buckman should have sought permission to store the bricks on-site if they were going to be there for longer than the afternoon of 13 May 2016. To do otherwise was discourteous.
[89] In relation to whether Mr Buckman secured the load appropriately, I am prepared to accept the expert evidence supplied by his BlueScope colleagues.
[90] Unlike Mr Cugaly, these employees have practical experience and expertise. I acknowledge that Mr Buckman’s load of bricks may not have maintained its integrity and shape in a high impact, side-on collision, but I doubt that Mr Cugaly’s proposed solution would have survived such a scenario either. From my experience, the important consideration is to lower the angle of the tie down strap from the top of the load to the anchor point. The BlueScope truck having sides created a complication in this regard which is why Mr Buckman built up the sides of the top pallet with bricks from the bottom pallet. I find that Mr Buckman secured the load appropriately and in the safest manner possible. I find that Mr Buckman did not engage in misconduct in securing his load of bricks.
[91] Having found that Mr Buckman did not engage in misconduct I find that the decision to stand Mr Buckman down for 4 shifts to be invalid. Mr Buckman is entitled to be paid for those 4 shifts.
[92] Clause 35.1.1 of the Agreement definitively states:
“35. Procedure for Resolving Claims, Issues and Disputes
3 5.1 Dispute Resolution Procedure
35.1.1 This procedure applies with respect to disputes about matters arising under this Agreement and in relation to the National Employment Standards.
35.1.2 At all stages of the procedure, a party to the dispute may appoint another person, organisation or association, which may include a Union, to accompany or represent them in relation to the dispute.
35.1.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors. The relevant supervisor will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.
35.1.4 If the matter is not resolved according to clause 35.1.3 above, the matter will be referred to the appropriate line manager who will attempt to resolve the matter. The relevant line manager will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.
35.1.5 If still unresolved, the matter will be referred to the appropriate Departmental Manager for review. The Departmental Manager will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.
35.1.6 If the matter remains unresolved following the review, then the matter will be referred to Human Resources.
35.1.7 If still unresolved, the matter will be referred to the Fair Work Commission (FWC) by either party for resolution, which will include conciliation and, if necessary, arbitration. The parties will abide by the outcome of such proceedings, subject to any right of appeal from any such decision of FWC.
35.1.8 If the matter goes to arbitration before FWC, FWC may exercise its procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective. The matter shall be dealt with by a Member of the FWC jointly nominated by the parties to the dispute if available or otherwise a Member of FWC nominated by the President of FWC.
35.1.9 From the time a dispute first starts to when it is resolved, work shall continue as directed by the Company.
35.1.10 This clause 35 does not apply to an issue that would genuinely place at risk the health and/or safety of the employee(s) concerned. In such cases the Company may direct employees to perform alternative work.”
[93] BlueScope appropriately relies on this provision in relation to their jurisdictional objection of the FWC dealing with Mr Buckman’s final warning.
[94] It is not in contention that the BlueScope warning/disciplinary procedure is not contained in the Agreement.
[95] VP Hatcher’s decision, outlined above, allowed the FWC to deal with both issues during the conciliation processes of section 35.1.7 of the Agreement but left open the capacity of the FWC to deliver an arbitrated outcome in relation to the final warning letter. Similarly, the Full Bench in Hay Point only dealt with the jurisdictional issue in relation to conciliation;
“[14] We see no jurisdictional impediment to the matter progressing to the first stage.”
[96] The FWC can only operate within the jurisdiction contained in the Fair Work Act, 2009, an Award or an Enterprise Agreement. In interpreting Enterprise Agreements, a Full Bench of the FWC in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 17 held that the FWC must give the words contained in an Agreement their “plain meaning”;
“Summary
[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[97] In this circumstance, the Agreement is quite specific in relation to the role and capacity of the FWC, ie, it can conciliate and arbitrate in respect to matters arising under this Agreement and in relation to the NES.
[98] I find that the FWC does not have jurisdiction to deal with Mr Buckman’s final warning.
[99] As a result, Mr Buckman is left with the industrially unsatisfactory situation of having a final warning on his file for no reason. I agree with BlueScope’s representative that, if the final warning is not retracted, then the FWC can treat this final warning as irrelevant in any future proceedings.
[100] I so order.
COMMISSIONER
1 [2015] FWCA 7954
2 Exhibit A1 – Witness Statement Shane Buckman Annexure 1
3 PN366 Transcript 15 December 2016
4 PN417 – PN420 Transcript 15 December 2016
5 Exhibit A4- Witness Statement David Dellapina at [5]
6 PN669 Transcript 15 December 2016
7 Exhibit B1 – Annexure PC1 PN12
8 Exhibit B2 – Witness Statement Chris Kollias at [11]
9 PN969 & PN974 Transcript 15 December 2016
10 PN988 Transcript 15 December 2016
11 Exhibit B3 – Witness Statement Daryal Holland at [14]
12 [2016] FWC 6303
13 Ibid at [7]
14 PN1125-1126 Transcript 15 December 2016
15 PN1163 Transcript 15 December 2016
16 PN1166 Transcript 1166
17 [2014] FWCFB 7447
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