AWU, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304

Industrial Relations Commission of New South Wales

CITATION : AWU, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304 PARTIES : The Australian Workers' Union, New South Wales (on behalf of Vince Stojanovski) BlueScope Steel (AIS) Pty Ltd (formerly called BHP Steel (AIS) Pty Ltd) FILE NUMBER: IRC 4305 of 2004 CORAM: Walton J Vice-President; Grayson DP; Murphy C CATCHWORDS : Unfair dismissal - appeal - leave to appeal - verbally abusive and threatening conduct by employee - refusal to take drug and alcohol test - alcohol and other drugs management procedure - significant importance for industrial relations and occupational health and safety at steelworks - proper operation of procedure - distinction between first refusal and further refusals - inappropriateness of pursuing an employee with repeated requests after a refusal to test - consequences of refusal to test - abusive and threatening conduct by employee deserving of disciplinary sanction - requirement/failure to consider harshness of dismissal - lengthy service of dismissed employee - summary dismissal disproportionate to gravity of misconduct - harshness of decision to dismiss - leave to appeal granted - appeal upheld - reinstatement ordered without back pay and on conditions LEGISLATION CITED : Industrial Relations Act 1996 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Mitchforce v Starkey (2002) 117 IR 122 Al-Shennag v Bankstown City Council Civic Services Group (2002) 188 IR 138 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Weisser v Spur Group Pty Ltd (2003) 121 IR 89 Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Ltd [2003] NSWIRComm 461 Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003) CASES CITED : Federated Ironworkers Association of Australia, NSW Division v Australian Iron and Steel Pty Ltd, McClelland J, No 285 of 1979, 2 May 1999 Abboud v NSW Department of Education (1999) 92 IR 32 Byrne & Ors v Australian Airlines (1995) 61 IR 32 Electricity Commission of NSW t/as Pacific Power v Crump (1993) 48 IR 296 at 302 Little v Commissioner of Police [2001] NSWIRComm 9 Transport Workers' Union of Australia, NSW Branch on behalf of Joseph Vallis v TNT Australia Pty. Limited [2002] NSWIRComm 46 Federated and Municipal and Shire Council Employees Union of Australia NSW Division on behalf of Gregory Bowman v City of Sydney Council [2001] NSWIRComm 91 Police Association of NSW on behalf of Adam Tregonning v NSW Police Service [2000] NSWIRComm 14