Industrial Relations Commission of New South Wales CITATION: Brown v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1021 APPLICANT Australian Workers' Union, New South Wales PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 6429 of 2004 CORAM: Connor C dismissal - consistent breach of safety procedure - CATCHWORDS: equality of treatment at dismissal Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Brown v. BHP Steel (unreported) Hutchinson v. BHP Steelworks (unreported) CASES CITED: Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74 HEARING DATES: 02/15/2005 DATE OF JUDGMENT: 03/04/2005 APPLICANT Darryl Anderson Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Aaron Dearden Blake Dawson Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 4 March, 2005 Matter No IRC 6429 of 2004 David Peter Brown and BlueScope Steel (AIS) Pty Limited Application by the Australian Workers' Union under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1021 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act the Australian Workers' Union has lodged an application concerning the termination of the services of Mr David Brown, a member employed by BlueScope Steel (AIS) Pty Limited - formerly BHP Steel (AIS) Pty Limited - as a crane chaser in the plate mill. Mr Brown has over 35 years of service with BlueScope Steel (or BHP Steel which preceded it). He was dismissed on Thursday, 21 October, 2004 for a breach of the "cardinal rules" policy of BlueScope Steel, ie the rail isolation procedure. 2 The matter was allocated to me and I listed it for a preliminary hearing on Monday, 29 November, 2004 in the Commission's premises at 90 Crown Street, Wollongong. Conciliation failed to settle the matter. I programmed it for arbitration on Tuesday, 15 February, 2005. Mr Anderson represented Mr Brown and the AWU, calling Mr Brown to give evidence in the hearing. Mr Dearden represented BlueScope Steel. He called two witnesses: Mr Steven Guy, the plate despatch manager, and Mr Brian Maxwell, a shift supervisor. 3 In the afternoon shift on Thursday, 14 October, 2004 Mr Ted Speirings, a leading hand, requested Mr Brown to strap up a rail wagon which had been shunted outside the mill onto a branch line because it had a broken hose. The process of strapping a wagon occurs when it is at or close to its maximum weight of plates and involves securing nylon straps across the top of the wagon, feeding it into slots and using a large ratchet to tighten the straps. It is rare that a wagon will be strapped outside the mill. For work on rail lines outside the plant it is necessary to isolate the work and Mr Speirings decided correctly that would need to be done. He instructed Mr Brown to isolate the rail line. 4 That isolation procedure involves placing a steel sleeve over the switch point lever for the rail line and thereby directing any locomotive away from that particular branch line. There is a chain connected to the steel sleeve which is locked onto a lug located on the bottom of the switch point box. The chain is locked onto the lug by placing a multi-lock device onto the chain and lug and applying an equipment lock (yellow) to the multi-lock device. Each operator working on the line when it is isolated is required by the "cardinal rules" policy to also place his own personal lock (red) to the multi-lock device before commencing work on the isolated line. 5 Mr Speirings tied off the rail point with a yellow flag and applied his own red lock to the chain for the switch points. He did not remain at the site as he apparently had work to attend elsewhere. According to Mr Brown in his evidence, neither the multi-lock device nor the yellow equipment lock were applied to the points and he did not apply his red personal lock. Mr Brown claimed in his evidence that he had gone to his locker to get his personal red lock but when he returned to the points there was no multi-lock device on which to attach it and Mr Speirings' personal red lock was attached directly to the chain. Consequently, there was no room for him to add his personal red lock to it. Mr Brown completed the work of strapping the wagon alone without placing his personal red lock on the points. 6 There must remain some doubt that Mr Brown's evidence is altogether accurate. It seems to me that at least some of his evidence, ie that there was no multi-lock on the points and that he had gone to his locker to get his red lock but simply could not put it on the points, was his invention which he thought up later to provide him with some excuse for his conduct. Neither Mr Maxwell nor Mr Guy observed the points when they had been isolated but when Mr Maxwell and Mr Guy confronted him later in his shift on Thursday, 14 October, 2004, he made no mention of the missing multi-lock device. Mr Brown's current version of the incident only came to light almost as an afterthought. 7 Originally, Mr Brown had simply indicated to both Mr Maxwell and Mr Guy that he had been content to rely on Mr Speirings' personal red lock. Mr Maxwell had asked him if he had isolated the rail line before he strapped the wagon and Mr Brown replied unhelpfully: "Sort of." Mr Maxwell asked him for a further explanation and Mr Brown informed him that he had apparently been relying on Mr Speirings' red lock. Mr Brown and Mr Speirings were directed to the ambulance station for drug and alcohol testing. Mr Maxwell accompanied them. He also telephoned Mr Guy and brought the breach of isolation procedure to his attention. 8 Mr Guy then interviewed Mr Speirings, Mr Brown and Mr Maxwell separately. Mr Speirings confirmed that he had applied the multi-lock and his red personal lock but not the yellow equipment lock and Mr Brown supported that version of events at that time, viz: "Yeah, that's about right." Mr Guy claimed in his evidence that Mr Speirings conceded that he was in breach of his safety obligations by not applying the yellow equipment lock and that he should not have let Mr Brown work on the wagon without applying his personal red lock. He was suspended on pay following a further investigation of the incident (and ultimately received a two day unpaid suspension). Mr Guy then met Mr Brown who admitted not having applied his red isolation lock to the rail points when he worked on the wagon. 9 There is some history involving Mr Brown in safety breaches which reveals to me a far too casual approach to workplace safety. In the middle of 1995 he was suspended for one shift for his failure to isolate properly. One year later he was suspended for three shifts for again failing to isolate properly. In early 1999 he received a warning for failing to wear the required personal protection equipment [PPE] and several months later he received another warning. That second warning was described as a final warning - inaccurately it would appear since he was again warned for failing to wear the correct PPE later that year. He also received a commendation at that time for correctly isolating the equipment he had been working on. Mr Guy claimed in the written statement which formed the basis of his evidence in this hearing that: "...the commendation was given to Mr Brown as an encouragement to improve his attitude towards safety and was not reflective of a higher level of compliance with the safety standards set by the company..." But, if that was the intention of BHP Steel management at that time, it did not work. Later in 1999 Mr Brown received a further final warning for overloading lifting gear. 10 On Wednesday, 29 August, 2003 he was summarily dismissed for crossing over a rail wagon while a shunt was in progress and the AWU lodged a Part 6 application on his behalf which came before me. In my unreported decision of Tuesday, 23 December, 2004 in Brown v. BHP Steel [Matter No.IRC 4984 of 2003] I ordered his reinstatement. I was influenced in my decision to reinstate Mr Brown on that occasion by the submissions made by Mr Anderson, who represented Mr Brown and the AWU in the proceedings. Mr Anderson emphasised Mr Brown's length of service at the Port Kembla steelworks. But I commented on the seriousness of the incident in my decision and concluded (at p.7) that: "…Mr Brown must appreciate that a casual approach to workplace safety by him will no longer be tolerated by BlueScope Steel. His continued employment with it will depend upon his adopting a new approach to such workplace safety. I direct Mr Anderson to bring that to his attention in clear terms. I would expect his employment record to be clean on safety issues for the remainder of his working life. He must appreciate that his safety record at work is such that he has used up eight of his nine lives already..." 11 On Wednesday, 29 December, 2004 Mr Brown received a letter from BlueScope Steel management, confirming a final warning as part of the programme for his resumption of work. The letter concluded: "...The plate mill management team regard your failure to work safely as a serious breach of your conditions of employment. The 'cardinal rules' are about the life threatening principles that ensure we will always comply with our duty of care to work safely in the workplace. In particular, life threatening principles ensure that we never deliberately endanger the life of anybody, including ourselves. You have given a commitment to ensure your safety performance improves. This warning is to ensure you are clear that any further issues around poor performance regarding your employment, including safety, will result in your dismissal..." 12 The latest incident on Thursday, 14 October, 2004 which has come before me in this hearing, in which Mr Brown failed to apply his red lock to isolate the railway line while he strapped the rail wagon, must therefore be considered in the context of his employment record. I believe I may be forgiven for having formed the view that Mr Brown is an accident waiting to happen. His reinstatement flowing from my decision of Tuesday, 23 December, 2003 was clearly his last chance and he has not taken it in the spirit it was meant. 13 Mr Guy recalled Mr Brown saying at his interview with him on Thursday, 14 October, 2004: "I am on my last life, aren't I." No doubt those comments are with reference to what I said in Brown v. BHP Steel to which I have already alluded in this decision - "...he has used up eight of his nine lives already...". Mr Brown was also suspended on pay and on Tuesday, 19 October, 2004 Mr Guy telephoned Mr Brown and informed him that he wished to meet him on Wednesday, 20 October, 2004. 14 Mr Guy asked Mr Brown if there was anything further he wished to say concerning the incident on Thursday, 14 October, 2004 and Mr Brown commented: "The only thing I want to add is that I tried to add my lock to the multi-lock. When (Mr Speirings) went to complete the destination cards I went and got a ratchet and my red lock. I went to the multi-lock but could not add it to the multi-lock because there was no yellow lock on it." Mr Guy responded: "If you couldn't put your lock on the multi-lock why did you complete strapping the wagon. You would have known that the line was not properly isolated but by your own admission you went ahead and completed strapping the wagon anyway." And Mr Brown then indicated: "Because I couldn't put my red lock on I went ahead and did the job." 15 Clearly, if Mr Brown did not place his red lock, or could not do so, the last thing he should have done is work on the wagon. It was clearly not safe for him to do so. For all he knew when he was working on the wagon Mr Speirings may have already removed his red personal lock. Each employee should ensure that he locks off work when it is to be isolated. He should not rely on anyone else's red lock. I am satisfied from my interpretation of the evidence that the multi-lock was, in fact, in place on the points and Mr Brown simply decided to strap the wagon without going to his locker and getting his personal red lock and placing it on the points. 16 It should be obvious to all employees that a steelworks is a hazardous working environment and it should not necessarily require me to remind any employees working in that environment that there is a need, in their own interests and those of their fellow employees, to abide by all safety requirements. As Mr Maxwell indicated in the written statement which formed the basis of his evidence in this hearing: "...an isolation breach is a serious matter as it places the safety of the employees working on the road or rail line at risk. Accordingly, when an isolation breach occurs on a shift, the breach needs to be dealt with and investigated before the end of the shift..." 17 On Friday, 22 October, 2004 Mr Guy again met with Mr Brown, Mr Anderson and two AWU delegates in the plate mill - Mr Mark Kuczwal and Mr Noel Eaton. In the light of Mr Brown's previous unsatisfactory record with workplace safety, the meeting concluded with Mr Guy terminating Mr Brown, paying him four weeks' wage in lieu of notice. Mr Guy indicated in a written statement he provided as a basis for his evidence in this hearing that: "...I am not convinced that Mr Brown has changed his attitude towards safety. Mr Brown has never been prepared to give any assurances that he would work safely in the future and, given his history, I believe that I had no other choice but to dismiss Mr Brown. The requirement to isolate the points was a matter of commonsense and it was in Mr Brown's own interests to follow the correct isolating procedure. In this case he chose not to protect himself..." Regrettably, I share Mr Guy's view. 18 As I pointed out in Brown v. BHP Steel (p.3), employees have a responsibility to obey any reasonable directions they receive from their employer over occupational health and safety issues. For instance, S.20(2) of the 2000 Occupational Health and Safety Act provides as follows: "An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person." A penalty is imposed against an employee under S.20(2). An employee who fails, wilfully or negligently, to follow safe work practices leaves himself open to dismissal by his employer and, in such, a case the Commission would usually be reluctant to intervene in support of that employee [ Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74]. The "cardinal rules" of BlueScope Steel must be considered in that light. Mr Anderson asserted that the "cardinal rules" do not necessarily follow from the policy of WorkCover. That does not matter, in my opinion. The "cardinal rules" remain important safety requirements in the steelworks. 19 In its Part 6 application the AWU has again sought Mr Brown's reinstatement, arguing that his dismissal was harsh, having particular regard to Mr Brown's length of service, and that a period of suspension would have been sufficient for him. That submission worked for Mr Anderson on the last occasion when I handed down my decision of Tuesday, 23 December, 2004 in Brown v. BHP Steel: it is not something I am prepared to act on again. I appreciate that Mr Brown has a lengthy period of employment at the steelworks but he should have appreciated by now that he worked in a hazardous place. In everybody's interests, the "cardinal rules" on occupational health and safety laid down by BlueScope Steel management should not be compromised. 20 Mr Brown seems to believe that he is under constant surveillance which Mr Anderson suggests represented harassment. Mr Brown claimed that there were "...eyes on him all the time..." and he believes that Mr Guy has "nightmares" over him. When Mr Maxwell spoke about the incident to Mr Guy on Thursday, 14 October, 2004, Mr Guy admitted that his first thought was that Mr Brown had been killed. I am sure that Mr Guy had Mr Brown's best interests at heart and has simply formed the view, correctly in my opinion, that on grounds of safety he could no longer be trusted to work in the steelworks any longer. It is Mr Brown's casual approach to workplace safety that has finally caught up with him. He alone is responsible for his dismissal. In his evidence, Mr Brown conceded that his safety record was bad. 21 Mr Anderson also suggested in his submissions that there was an inequality in the treatment of BlueScope Steel employees guilty of safety breaches, highlighted by the fact that Mr Speirings received a two day suspension without pay whilst Mr Brown's services were terminated. Mr Guy also conceded that he had also been suspended for one day over a safety concern - entering an unauthorised area. But it would be wrong for BlueScope Steel management to treat all safety breaches in the same way. For instance, with respect to arguments that two employees guilty of the same offence (fighting) should be treated the same in disciplinary action, I indicated in my unreported decision of Friday, 25 May, 2000 in Hutchinson v. BHP Steelworks [Matter No.IRC 5910 of 2000 at p.17] that: "…in my view, it would have been unfair for (BlueScope Steel management) to have made a blanket decision, applying the same penalty - dismissal - to both employees, regardless of the individual circumstances..." Mr Speirings and Mr Guy have otherwise clean employment records. Mr Brown's employment record, as far as safety is concerned, is far from clean. According to Mr Guy, Mr Speiring's safety breach - not applying the yellow equipment lock to the points - was less serious than Mr Brown not applying his personal red lock to the points. 22 I therefore propose to dismiss the Part 6 application the AWU has lodged on Mr Brown's behalf. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.