Walter Troiano v BlueScope Steel (AIS) Pty Ltd

[2018] FWC 439

[2018] FWC 439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Walter Troiano

v

BlueScope Steel (AIS) Pty Ltd

(U2017/7729)

COMMISSIONER RIORDAN SYDNEY, 8 February 2018

Application for an unfair dismissal remedy.

1. Mr Walter Troiano was employed by BlueScope Steel (AIS) Pty Ltd (and its predecessors) between 26 October 1992 and 28 June 2017.

1. Mr Troiano was summarily dismissed due to “inappropriate and socially unacceptable behaviour and unacceptable timekeeping”.[1]

1. The AWU, NSW Branch, lodged an unfair dismissal application on behalf of Mr Troiano on 18 July 2017.  

1. The matter was listed for hearing on 10 November 2017 in Wollongong. Mr Troiano represented himself during the proceedings. BlueScope was represented by its Senior HR Advisor, Mr Martin Aicken. Mr Troiano attested to a witness statement. BlueScope relied on a witness statement of Ms Victoria Collins, Operations Manager of Coal Plant 1. Mr Wayne Phillips, an Assistant Secretary of the AWU, was summonsed to attend the proceedings by Mr Troiano.

1. At the conclusion of Mr Troiano’s evidence, it became apparent that Mr Troiano had not seen the witness statement or the written submissions from BlueScope, even though BlueScope had served this material by email to Mr Troiano’s email address. With the consent of BlueScope, the matter was adjourned until 24 November 2017 to allow Mr Troiano to put on any additional evidence or submissions. Mr Troiano filed further material on 20 November 2017.

Background

1. Mr Troiano worked for BlueScope for nearly 25 years. At the time of his termination, Mr Troiano was a Level 5 Operator (Gas Regulator) in the Coke Plant at the Port Kembla Steelworks. For the purposes of explanation, BlueScope described that Mr Troiano’s role could be split into two functions, namely:

a)Mr Troiano provided annual leave relief for the Regulators. The Regulators work 12 hour shifts on a 24 x 7 roster. Relevantly, Regulators do a hand over with their replacement at the end of every shift.

b)Mr Troiano also worked in the Gallery undertaking operational maintenance activities in a restricted space beneath the battery areas. This area is remote from the operations team. The Gallery Operator works 12 hour day shifts on a 7 day roster and is often the only employee in that particular work area.

1. It is not in dispute that the Coke Plant is a hot and dirty place to work.

1. On 23 May 2017, Mr Troiano along with his union representative, met with Ms Victoria Collins and Ms Rhea Zaulich, a HR Officer from BlueScope. During this discussion, in order to prove an allegation that he had previously made, Mr Troiano invited Ms Collins to review his gate logs. Gate logs are the records kept by the external security controller which identify the time and gate location that every employee utilises to enter and leave the Steelworks by using their individual swipe cards. As a matter of policy, BlueScope do not normally look at the gate logs of employees.

1. Ms Collins’ review of Mr Troiano’s gate logs between 1 January 2017 and 7 June 2017 identified a pattern of attendance that raised serious concerns. In summary, Mr Troiano worked 45 shifts during this period. 13 of those shifts were in Regulating. There were no issues in relation to Mr Troiano’s time keeping whilst performing this work on the basis of the work pattern and procedures adopted by the Regulators i.e. the Regulators are required to remain at work until they are relieved by the next shift. There was incomplete data on another 8 shifts that were worked.

1. The other 24 shifts were worked by Mr Troiano in the Gallery. On 6 occasions, Mr Troiano worked more than his allocated 12 hours at an average of an extra 29 minutes. There were 17 occasions when Mr Troiano was on shift for less than his allocated 12 hours at an average absence of 1 hour and 52 minutes. Of these 17 shifts, Mr Troiano left mid shift and returned on 6 occasions. Mr Troiano’s absence averaged 1 hour and 16 minutes on these mid shift absences. A further analysis of the 17 shifts shows that Mr Troiano was absent for less than 30 minutes on 3 occasions, absent between 31 minutes and 1 hour on 4 occasions, absent between 1 hour and 6 hours on 8 occasions and absent greater than 6 hours on 2 occasions. Whilst disputing some of the timeframes, Mr Troiano claims that he had been given permission to leave site on each occasion or that he had notified the relevant or appropriate BlueScope personnel when he was leaving the site. BlueScope claims that Mr Troiano only had approval to leave the Steelworks for 3 of these occasions and that the remainder were all unauthorised absences.

1. Mr Troiano submitted that the culture of the Coke Plant was for employees timekeeping to be treated in a flexible manner due to the type of work that they perform – that there were “swings and roundabouts” in relation to workload on the basis that some days you could leave early whilst on other occasions you would be required to work back.

1. Mr Troiano’s alleged “inappropriate and socially unacceptable behaviour” refers to an allegation that Mr Troiano defecated in the BlueScope shower on the afternoon of Monday, 5 June 2017. It is not in dispute that Mr Troiano entered the shower block after working overtime with 3 colleagues. The shower was clean at this point in time. There are 8 showers in the shower block and four drains, i.e. 2 showers share a single drain. Mr Troiano always uses the second shower on the right. Its drain does not have a drain cover but simply the exposed rim of the PVC pipe. In a meeting with Ms Collins on 7 June 2017, Mr Troiano claims that whilst he was showering he noticed that the drain was blocked and that “floaty stuff” started coming out of the drain. Mr Troiano claims that he tried to push the floating material back down the drain with his hands and used his feet to act like a plunger. I note that Mr Troiano wears rubber thongs when he showers. Mr Troiano allegedly stated in this meeting that it looked like faeces.  When leaving the shower block with his colleague, Mr Troiano is claimed to have said to his colleagues “look at this shit”.

Legislation

1. The relevant provisions of the Fair Work Act 2009 (the Act) in relation to an unfair dismissal application have been reproduced for convenience below.

“381     Object of this Part

The object of this Part is:

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

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

(ii)       the needs of employees; and

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

(i)        are quick, flexible and informal; and

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

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

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

Note:         The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.”

“382      When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a)       the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)       one or more of the following apply:

(i)        a modern award covers the person;

(ii)       an enterprise agreement applies to the person in relation to the employment;

(iii)       the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

“385      What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(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.

Note:    For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“386      Meaning of dismissed

(1)        A person has been dismissed if:

(a)       the person's employment with his or her employer has been terminated              on the employer's initiative; or

(b)       the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)        However, a person has not been dismissed if:

(a)       the person was employed under a contract of employment for a   specified period of time, for a specified task, or for the duration of a specified                 season, and the employment has terminated at the end of the period, on   completion of the task, or at the end of the season; or

(b)       the person was an employee:

(i)           to whom a training arrangement applied; and

(ii)          whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(c)       the person was demoted in employment but:

(i)           the demotion does not involve significant reduction in his or her remuneration or duties; and

(ii)          he or she remains employed with the employer that effected the demotion.

(3)       Subsection (2) does not apply to a person employed under a contract of a kind            referred to in paragraph (2)(a) if a substantial purpose of the employment of the person         under a contract of that kind is, or was at the time of the person's employment, to            avoid the employer's obligations under this Part.”

“387      Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

“FAIR WORK REGULATIONS 2009 - REG 1.07

Meaning of serious misconduct

(1)  For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2)  For subregulation (1), conduct that is serious misconduct includes both of the following:

(a)  wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b)  conduct that causes serious and imminent risk to:

(i)  the health or safety of a person; or

(ii)  the reputation, viability or profitability of the employer's business.

(3)  For subregulation (1), conduct that is serious misconduct includes each of the following:

(a)  the employee, in the course of the employee's employment, engaging in:

(i)  theft; or

(ii)  fraud; or

(iii)  assault;

(b)  the employee being intoxicated at work;

(c)  the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4)  Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5)  For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.

Submissions and Evidence

1. Mr Troiano submitted and testified that he did not defecate in the shower, that the shower drain was actually blocked before he started his shower and that he had simply tried to clear the blockage. Mr Troiano was critical of BlueScope for not having installed an appropriate grill over this drain similar to the other 3 drains. Mr Troiano claimed that, had this grill been installed, then foreign substances would not have been able to flow out of the blocked drain. Mr Troiano claims that he has never used the word faeces and that he described the substances as crap.

1. Mr Troiano submitted that he had never left the Steelworks without seeking the permission of his Supervisor or advising the relevant Operator of his Department. Mr Troiano agreed that, on occasion, he had been away a little longer than he had anticipated but that the length of these absences had been due to unforeseen circumstances that were beyond his control.

1. Mr Troiano denied that he had ever been away from work for more than 6 hours, however, he could recall that on a number of occasions that he had swapped cars whilst he had been off the plant and had left his swipe card in his other car. Mr Troiano claimed that he was able to gain re-entry by contacting security and advising them of his predicament.

1. Mr Troiano claims that his timekeeping was “above average” compared to his colleagues. Further, that the department worked under a “flexible approach” to timekeeping on the understanding of the rigours of the role and the need to sometimes work back to complete tasks where overtime was not claimed. Mr Troiano argued that this practice was the accepted culture of the department.

1. BlueScope submitted that Mr Troiano’s timekeeping was not above average but quite poor. Ms Collins testified that she undertook an analysis of a number of Mr Troiano’s colleagues for the month of May and found that the “culture” as described by Mr Troiano was not evident.

1. Ms Collins testified that Mr Troiano did not follow BlueScope’s guidelines when leaving work early and referred to a specific BlueScope staff notice[2] on the issue:

Communication to Coke Plant 1 Heating

Leaving Work Early
December 2014

Context

·    Over recent times there has been an increase in reports of Heating employees leaving work early without permission from their Team Leader (or the Shift Supervisor outside of weekday D/S hours).

Purpose

·    The purpose of this KMB is to communicate and reiterate the Company’s expectations with regards to working hours and leaving work early.

Key Points

·    Heating personnel are employed as 12 hour shift workers. It is the expectation from the Company that employees will work the full 12hour shift, unless arrangements have been made with their Team Leader or Shift Supervisor outside of weekday D/S hours. The Shift Supervisors have been requested to communicate to the Heating Team Leaders via email on all occasions that a change of work hours has been requested.

• If you need to leave work early, you are required to gain permission from your Team Leader. Under no other circumstances is it acceptable to leave the work site, for any period of time without notifying the Team Leader. The Team Leader will assist in resolving any immediate issue.
• Leaving site without notifying the Team Leader does not comply with the intent of the WHS legislation where we are required to comply with the Company’s safe systems of work which includes the DEC accounting for all personnel on their site.
• The nominal start and finish time is 6 o’clock.  Thus it is expected that employees are present ready to start work at this time and also work their 12 hour shift until this time or until relieved by their replacement.
• The Heating Access control procedure must be complied with when working within the gallery / waste heat level.
• The Heating Team leader must be informed of gallery man swap shifts as this may affect scheduled work.

Consequences

·    Failure to comply with these requirements may result in disciplinary action being taken and employees will not be paid for the period of non attendance.

More Information/Questions

·    For any questions regarding this communication please speak to your Team Leader.

(my emphasis)

1. In response to a question from myself, Ms Collins agreed that not knowing whether an employee is at work or off site could lead to a serious safety issue and that Mr Troiano’s timekeeping record has identified a problem with the supervision of the plant.

1. Ms Collins advised that there had been only 3 recorded requests from Mr Troiano to leave site mid shift but no requests to leave the Steelworks prior to the conclusion of his rostered shift.  

1. Ms Collins testified that she formed the view that Mr Troiano had defecated in the shower on the basis that Mr Troiano had advised her that the shower was clean when he had entered the area and that he had used his hands and feet to try to unblock the drain when he saw that it was blocked. When he failed to unblock the drain he continued his shower even after he had discovered the faeces in the water. Further, that Mr Troiano did not report the incident but simply went home. Ms Collins stated that she formed the view that the actions of Mr Troiano were not the normal behaviour of someone who had to shower in these conditions. Mr Troiano could have moved showers but chose to stay in the polluted shower. Mr Troiano stated that he was wearing his rubber thongs whilst he showered and felt safe as a result.

1. Mr Phillips testimony, in response to questions from myself, said:   

“PN155
…Mr Phillips, Mr Troiano's testified that there was a bit of give and take in this department, in relation to working back and leaving early, is that your understanding as well?‑‑‑I'm aware that generally in the coke ovens area it's a fairly relaxed, the word is probably the wrong terminology, but it's understood.  It's probably one of the worse environments in the works and management are not as strict as they are in some of the other departments, for the work that they do.”[3]

“PN213
Would you regard Mr Troiano has been dealt with in a manner which is consistent with the recent positions that BlueScope has adopted in management - - -?‑‑‑Yes.

PN214
Are you aware of the issues that Mr Troiano has been terminated for?‑‑‑Yes.

PN215
You understand there are two significant issues, one is in relation to timekeeping, the other one is in relation to an incident in the shower?‑‑‑Yes.

PN216
Do you regard the incident in the shower to be, if found to be correct, to be a significant occupational health and safety issue?‑‑‑If it was found to be correct, yes.

PN217
Do you believe that would warrant termination?‑‑‑I would say any employee proved to do that needs to be sacked.  I have other members who also work in that industry and they have a right to a health and safe workplace and environment so I think that if a person did that sort of stuff my main concern will be about the rest of the workforce.

PN218
So you think it's a sackable offence?‑‑‑Yes.

PN219
In relation to the other issue, in relation to timekeeping, your evidence is that there was not a strict policy in relation to timekeeping in the coke oven area, do you have a view about the accusations against Mr Troiano and Mr Troiano's timekeeping?‑‑‑I do.  I think, as Mr Troiano has said, I think there would be a number of occasions that the supervisor would have acknowledged or given him permission to duck out (indistinct).  I don't find that unreasonable, I think that would be a fair assumption from me that that that would have happened.”[4]

“PN247
…are you aware of any other employee from coke making who's been terminated for their timekeeping?‑‑‑For timekeeping, yes.”[5]

Consideration

1. In Byrne v Australia Airlines[6], the High Court held:

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

1. The Full Bench of the AIRC in Australia Meat Holdings Pty Ltd cited this decision in definitive terms:

“The above extract is authority for the proposition that a termination of employment may be:

·   unjust, because the employee was not guilty of the misconduct on which the employer acted;

·   unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

·   harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.”

1. To determine whether Mr Troiano’s summary dismissal was harsh, unjust or unreasonable, it is necessary to consider the criteria of section 387 of the Act.

Section 387(a) Valid Reason

1. In Selvachandran v Peterson Plastics Pty Ltd[7] Northrop J held:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”

1. I have undertaken a detailed review of Annexure 1 of Ex B1, which is Mr Troiano’s timesheets for 1 January 2017 – 7 June 2017. Whilst the material is not 100% complete, it clearly shows a trend that Mr Troiano would basically either leave the Steelworks mid shift or leave early whenever he was not working as a Regulator. For example, on 10 July 2017, Mr Troiano entered at 4:30am, left at 8:26am, returned at 9:05am and left at 3:30pm - some 2 hours before his shift was due to finish. The next day, Mr Troiano entered at 4:53am, left at 8:17am, returned at 9:01am and left at 3:25am – approximately 1 ½ hours before his shift concluded. On 28 January 2017, Mr Troiano entered at 5:57am and left at 12:49 pm. The next day, Mr Troiano entered at 4:26am and left at 10:15am. On 2 February 2017, Mr Troiano entered at 3:58pm, left at 7:32am, re-entered at 11:11am and left at 4:03pm. The next day, Mr Troiano entered at 3:58am, left at 8:41am, re-entered at 10:00am and left at 2:26pm. On 11 April, Mr Troiano entered at 5:02am, left at 7:23am, re-entered at 11:32am and left again at 11:44am.

1. I have taken into account that Mr Troiano did not attempt to explain the specifics of all of these absences during the hearing, however, the show cause letter issued to Mr Troiano on 21 June 2017 provided commentary of a meeting that Mr Troiano attended the previous day. In reference to the timekeeping allegations, Mr Troiano’s responses to the allegations were minuted in the following manner:

“…

·   That you have had to leave site on a number of occasions to assist with the renovations of your home by picking up materials, delivering them to your home and checking on tradesmen’s work. That you can prove that you asked your Team Leaders permission to leave site on the occasions between Monday and Friday.

·   That you have left work 20 to 30 minutes early during summer as your work is hot and working for 12 consecutive hours would result in you overheating and collapsing, that it was better for you to have a shower and go home.

·   That on the days that you have left work hours prior to the end of your shift, that you have actually attended to your renovations and to allow the unloading of your vehicle, you have aimed to minimise your time offsite by returning in a different vehicle, without your proxy card.” [8]

1. I have taken into account that BlueScope have accepted that Mr Troiano had been given approval for 3 occasions when he left the Steelworks mid shift but that approval had never been given for Mr Troiano to leave work prior to the end of his scheduled shift.

1. I have taken into account the evidence of Mr Troiano that as a Level 5 Operator he is a senior employee on the basis that he is only one level below management. Also, in his role, Mr Troiano is basically self-supervised, such is the trust that BlueScope places in employees of his experience and classification.

1. I have taken into account the evidence of Mr Troiano when he said:

“PN83
So what would happen at the gallery, you're accused of leaving the gallery, I think, 23 times early.  How would you know when to go home in the gallery, would it be a case of when you've finished the work for the day, or it would be - - -?‑‑‑Because our base is still the control room.  We have our crib breaks in the control room.  Basically we spend more time with our - being a gallery person you spend more time with your fellow regulator.  So if there's any movement, if you have to duck out for five minutes or 10 minutes, you always - because it's a high risk facility, you always tell the regulator on duty.  If he's not around you tell the air shift supervisor.  So normally when I go home I always say goodbye to the regulator so he knows I'm going home, because if he's got an emergency five minutes after I leave he needs to know who's in the gallery or wow's in the plant because if they have an evacuation they have to virtually account for everyone before they can make the plant safe.  So we always communicate with the regulator.  We work together, yes.”[9]

(my emphasis)

1. I have taken into account that Mr Troiano has not followed BlueScope’s directive in relation to leaving work early. It would appear that Mr Troiano adopted a “carefree attitude” to both his timekeeping and his obligation, for very important safety reasons, to notify the designated people of his whereabouts. By adopting this blasé attitude, Mr Troiano put at risk his fellow employees’ safety. If there was an evacuation due to an emergency and Mr Troiano could not be found, then his fellow workmates would have placed themselves in danger to go and look for him, at the same time that Mr Troiano had either gone home early or was off-site dealing with a personal issue. When working in a hazardous location such as Coke Plant 1, the failure to follow important procedures which have a direct link to safety is, in my view, reprehensible. This conduct provides BlueScope with a valid reason to terminate Mr Troiano.

1. I do not accept that leaving site, on what could almost be described as a regular or systematic basis, to attend to matters that could not be considered as either work related or urgent personal matters, could be condoned or regarded as being reasonable. It would appear that on every day Mr Troiano was not working as a Regulator, he either left site during the day or left the Steelworks before the completion of his shift. On some days, he did both. As a self-described, self-supervised senior employee, BlueScope was entitled to believe that Mr Troiano would “do the right thing”. I cannot find a single occurrence where Mr Troiano ducked out for, as he described, “5 or 10 minutes”. All but 2 of his absences are for lengthy periods of time. I am satisfied that the conduct described above occurred. I find that Mr Troiano’s poor timekeeping provides BlueScope with a valid reason to terminate Mr Troiano’s employment.

1. I have taken into account the investigation undertaken by Ms Collins following the complaint from a concerned employee in relation to Mr Troiano’s conduct in the showers. I acknowledge the reasoning that was adopted by Ms Collins in reaching her conclusions. An accusation or finding on a behavioural issue such as defecating in a shower has widespread and ongoing ramifications for the accused individual. It is fair to say that any positive finding would stamp Mr Troiano with an unwelcomed level of public notoriety.

1. It is not in dispute that the shower that Mr Troiano used on 5 June 2017 was blocked.  Whilst the investigation conducted by Ms Collins was that the substance that was floating in the water was human faeces, there is no proof that this material did not float out of the uncovered drain. It may have been that the employee who used this shower on the shift before Mr Troiano was the perpetrator of this act. I note that none of the other 3 workers who were in the showers with Mr Troiano were called as witnesses in the proceedings.

1. I accept that the standard of proof in matters such as an unfair dismissal case is one which is based on “the balance of probabilities”. Whilst the offending material may have in fact belonged to Mr Troiano, I do not accept that Mr Troiano possesses the human qualities, or lack thereof, to deliberately defecate in the shower. It is also possible that the material floated out of the drain as described above. As a result, I am not satisfied that the shower incident provided BlueScope with a valid reason to terminate Mr Troiano’s employment.

Section 387(b) Notified of reason of dismissal

1. I have taken into account that Mr Troiano was notified of the reasons why he was dismissed. Mr Troiano was provided with a show cause letter on 21 June 2017, following a meeting with his AWU representative and BlueScope management the previous day.

Section 387(c) Opportunity to Respond

1. I have taken into account that BluesScope only gave Mr Troiano 2 days to respond to the show cause letter. Such a timeframe is unnecessarily short, however, I accept that the issues had been traversed between the parties over a number of meetings. I acknowledge that an AWU official had been present at all of the meetings leading up to Mr Troiano’s termination. Mr Troiano has not complained about this timeframe, but I fail to see why BlueScope did not extend the timeframe for Mr Troiano’s response until the following Monday morning. I note that BlueScope did not terminate Mr Troiano until 28 June 2017 following a peer review process.

Section 387(d) Refusal of support person

1. I have taken into account that BlueScope would not allow one of Mr Troiano’s colleagues to act as his support person at one stage during the process. Mr Troiano claims that this was a breach of procedural fairness. I note that an AWU Official was present at all meetings. Based on Mr Troiano’s conduct during these proceedings, I am of the view that BlueScope had every reason to not allow Mr Troiano his support person of choice – primarily on the basis that if such a scenario occurred then that employee could not be interviewed by BlueScope as part of its investigation without that employee being conflicted. Also, based on the seriousness of the allegations. I am of the view that Mr Troiano was better served by the presence of an experienced full time union official rather than a work colleague.

Section 387(e) Unsatisfactory Performance

1. Whilst Mr Troiano had been provided with a number of warnings in relation to his performance, Mr Troiano was dismissed for serious misconduct not unsatisfactory performance. As a result, this issue is not a relevant consideration.

Section 387(f) Size of the employer enterprise

1. BlueScope is a large employer who follows a set and well established procedure in relation to a workplace investigation. BlueScope followed this procedure in this circumstance. I have taken this into account.

Section 387(g) Dedicated HR Management

1. BlueScope has a dedicated HR team who were actively involved and present throughout the investigation and termination process. I have taken this into account.

Section 387(h) Any other relevant matters

1. I have taken into account that Mr Troiano has 25 years’ service at BlueScope and that he is over 50 years of age. I have also taken into account the unemployment in the Illawarra.

1. I have taken into account the financial consequences of BlueScope’s decision upon Mr Troiano.

1. I have taken into account that Mr Troiano purchased a mini excavator in January 2017 in order to supplement his income from BlueScope.

1. I have taken into account that during the investigation a number of Mr Troiano’s responses to Ms Collins questions were simply nonsense, e.g. “I have had to swap cars, I have more than one car and you have to drive them”.[10] To suggest that it is appropriate for an employee, who has a considerable amount of leisure time away from the workplace, to take paid time away from the workplace to give his “second car a run” is not a credible explanation or justification for his actions.

1. I have taken into account that other BlueScope employees, including from the Coke Plant, have been terminated for poor timekeeping.

1. I have taken into account all of the submissions and evidence that has been provided by the parties.

Conclusion

1. I have previously found that BlueScope had a valid reason to summarily dismiss Mr Troiano. For a senior and experienced wages employee, Mr Troiano’s timekeeping was appalling. Mr Troiano deliberately and systematically left the Steelworks, without authorisation on the overwhelming majority of occasions, to conduct his own personal affairs.

1. Not only is such behaviour fraudulent, but it creates serious safety issues for Mr Troiano’s work colleagues who were unaware of his non-attendance. In a hazardous work location like the Coke Plant, I find Mr Troiano’s actions in deliberately contravening the “Leaving Work Early Policy” falls within the boundaries of serious misconduct.

1. I am satisfied that Mr Troiano’s summary dismissal was an appropriate and proportionate penalty for his conduct. Mr Troiano’s termination was not harsh, unjust or unreasonable.

1. The application is dismissed.

COMMISSIONER

[1] WT1-F2.

[2] Witness Statement Victoria Collins Appendix 6

[3] PN155 Transcript 24 November 2018

[4] PN213-219 Transcript 24 November 2018

[5] PN247 Transcript 24 November 2018

[6] (1995) 185 CLR 410

[7] (1995) 62 IR 371

[8] Witness Statement Victoria Collins Appendix 5

[9] PN83 Transcript 10 November 2018

[10] EX B1, PN 27, Pg13.

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