Industrial Relations Commission of New South Wales CITATION: Lightowler & BHP Steel Pty Ltd [2004] NSWIRComm 1104 APPLICANT Andrew Lightowler PARTIES: RESPONDENT BHP Steel Pty Ltd FILE NUMBER: IRC 4893 of 2003 CORAM: O'Neill C CATCHWORDS: Termintion of Employment - unfair dismissal - employed over 20 years - unblemished employment record - Job Safety Analysis - TAKE 2 - Custom & Practice LEGISLATION CITED: Industrial Relations Regulations 1996 Occupational Health and Safety Act 1983 Metropolitan Meat Industry Board v AMIEU [1973] AR (NSW) 231 CASES CITED: Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hasting (1977-78) 16 ALR 363 The Australian Manufacturing Worker Union (on behalf of Mark Harrison and Keith Donaldson) v Australian Co-Operative Foods Limited [2000] NSWIRComm 199 Zippara v K-Mart Auto and Parker and K-Mart Auto (No.s IRC2225 and 2226 of 1992, unreported HEARING DATES: 03/04/2004; 03/11/2004; 03/22/2004; 07/23/2004; 12/01/2004 DECISION DATE: 12/01/2004 APPLICANT Maguire & McInerney Solicitors (Mark McDonald) REPRESENTATIVES: RESPONDENT Blake Dawson Waldron DECISION: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: O'NEILL C 1 December 2004 Matter No IRC 4983 of 2003 The Australia Workers Union NSW Branch on behalf of Andrew Lightowler and BHP Steel Application by The Australia Workers Union NSW Branch on behalf of Andrew Lightowler re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 1104 1 This is a decision in matter number 4983 of 2003. This is an application by The Australia Workers Union NSW Branch on of Andrew Lightowler and BHP Steel (BlueScope Steel Pty Limited). 2 As agreed between the parties the final submissions in writing have now been received by the Commission and the Commission now publishes its Decision in respect to this matter. 3 Throughout the proceedings, the Applicant Mr Lightowler was represented by Mr Moore of counsel instructed by Mr McDonald and the Respondent was represented by Ms Lyndall Dean of Blake Dawson & Waldron. 4 The Applicant in these proceedings Mr Andrew Lightowler at the time of his employment was employed as a Level 2 Operator in the Sinter Plant. On the 29th of August 2003 the Applicant in these proceedings accessed the belt tracking roller limit switch. To do this the Applicant opened the mesh gate to gain access to the switch. At the time that this happened the belt was running. Whilst the Applicant indicates this has been a usual practice the Company had disapproved of this and in fact have accused the Applicant of breeching Cardinal Rules of the Company in respect to safety procedures. As a consequence of the allegation of that breech of cardial rules the Applicant's position with the Company was terminated. Termination came subsequent to an Appeal by the Applicant as part of the normal appeal process. Evidence of Andrew Lightowler 5 Attachment A, to the Applicant's Statement of Evidence, headed "Iron Making Department" sets out the termination process which took place with respect to the Applicant. 6 Exhibit 1 in these proceedings is the Deposition of Mr Lightowler. The Applicant deposed that he began work in February 1981 with BHP Steel as an apprentice fitter and turner. He indicated that he completed his apprenticeship in 1984 and then worked within the No. 1 Machine Shop until June 2000. At that time his classification was Mechanical Graded Tradesperson Level 3. 7 The Applicant deposed that in June 2000 he began work as a Sinter Plan Ore Operator and continued at this employment until 29 August 2003. He said that at the time of his termination by BHP Steel he was classed as a Level 2 Operator. 8 The Applicant stated that as a Level 2 Operator he was required to work part of his duties in respect to 4 designated work stations commonly called; the Ground Floor, Coke Crusher, Assistant and Thickener. The Applicant deposed that he worked as part of a six person crew and in addition to the workstations described by him there was a control room manned by a level three operator. The Applicant said that the difference between Level 1 and Level 2 Operators is that the Level 2 Operators can work in all areas save the control room and Level 1 Operators can not work in the thickener. He said that in summary there are five designated work stations and a spare man at times. The spare man may work as a trainer. To work as a trainer the employee must be an Operator Level 3, that is competent in working at all work stations including the control room. The Applicant indicated that he is also undertaking various courses in respect to general plant safety and. 9 The Applicant indicated that on 29 August 2003 he was rostered on the day shift and working at the thickener. The Applicant indicated that the thickener is that part of the process within the plant that removes the heavy metals from VOS and Blast Furnace Water. He said that dirty water is processed though what is known as a belt press system. This system draws away the slurry which contains all of the impurities for disposal. The water is first settled in a Thickener Pond and then is further settled in another pond called the Jord. The Jord is located above ground. From the Jord it travels to the belt press system. 10 The Applicant said that on the 29th of August he was the operator on the Thickener and when he arrived at work the rake arm within the Thickener Pond was broken and the pond had been emptied. He said the function of the rake arm is to operate like a plough to move the slurry to from the bottom of the pond. In short, to move the slurry to the centre or middle of the pond such as to allow for its pumping from the pond to the Jord. Due to this breakdown the Thickener Pond could not be used. 11 He said that from the belt pressers the Thickener Pond usually receives the excess filtrated water, which is collected in the filtration tanks. Due to the emptying of the Thickener Pond this excess water could not be pumped from the filtration tanks and was overflowing from those tanks. He said that the Company had brought in a large pump to try to pump this water to the Jord however, this was having mixed success. 12 As a consequence of the various failures there was a risk that the pH level in the Iron Making East drains could be such as to exceed the environmental limits and result in BHP Steel's prosecution should a breech be detected. 13 The Applicant indicated that the plant failures had a number of effects. The engineers were becoming concerned, as the situation was potentially dangerous. The Foreman had observed that the "SG levels" (specific gravity levels) within the Jord were high and in order to overcome this difficulty he was organising for a pump truck to come and pump the Jord out. He said other employees were trying to stop leeks from pipes and organising "Whizer" pumps to try and suck the water away from the patio area and the sumps. He said that maintenance employees were working to repair the Thickener Pond and eventually a second pump truck was requested to increase the rate of pump out from the Jord. 14 He said that his Foreman, Mr Whittaker instructed him to have more slurry sent across from BOS. He was then told to get No. 1 and No. 2 belts working. 15 The Applicant said that he went down to No. 1 belt and when he went down to the belt he found that there had been an electrical fault with a water spray pump and three electricians working to over come that problem. He said he then went to No. 2 belt and a maintenance crew was replacing the top cloth of the belt. When the maintenance crew performed this task, he said they do not isolate the belt and work inside the guards. 16 He said that No. 1 and No. 2 belts handle the slurry from the Thickener to the Jord. The Applicant also said there is a third belt, No. 3 belt which works independently of the other belts by taking slurry directly from No. 6 Blast Furnace. He said that the SG level in the Jord was about 1.40 at this time and it was essential that the belt process continue to operate. 17 The Applicant indicated that the belts are fitted with what are called belt tracking roller limit switches. He said that when the belt tracks off the rollers the belt hits the limit switch and the belt stops. Given the state of the plant it was essential that the belt not stop and in order to ensure the continued operation of the belt it was important that the limit switch not activate. The Applicant said that to do this he had to ensure that the belt would run locally. He said that before the belt can be run locally the limit switch has to be adjusted such as to allow the belt to move on a wider track and to do this the switch can be held in an "On" position with a piece of wire. 18 The Applicant said that to do this he accessed the belt tracking roller limit switch, he opened the mesh gate to gain access to the switch. He said that at the time he opened the gate the belt was running and this is the usual practice. He has witnessed both operations and maintenance employees perform this task in the same way with the belt running. He said indeed when the Level 3 Operator trained him he was shown how to do this. 19 The Applicant also said that the Company do not have a written procedure relating to the fixing of the limit switches. When he accessed the limit switch he was acting in accordance to what he understood to be normal operations procedure. The Applicant said that if he had considered his actions to be dangerous he would not have performed them. 20 The Applicant said that during the course of placing the limit switch in the "On" position he was approached by Mr Whittaker who said that he should come to the control room as he had to report what the witness was doing to Glenn Shephard, and he accompanied Mr Whittaker to the control room and was then suspended from duty. 21 The Applicant said that he has received no documents from the Company advising that his employment had been terminated though he had been advised that he had been dismissed because he had broken "The Cardinal Rules". This information was conveyed to him by Mr Shephard. He said subsequently he obtained access to a document headed "Serious Safety Incident Working Inside and Opened Guard Without Performing Isolation On Friday 29th August", and that he had received this document from Mr Thomas at the Industrial Relations Commission before coming into the court room. This is the document shown as Exhibit A and attached to the Applicant's Statement. 22 He was not interviewed concerning the incident as a part of any investigation. Was not asked to comment on the correctness or otherwise of the document prior to his termination from BHP Steel. 23 The Applicant also said that the gate is not secured in any way. It is not locked and is frequently blows open if there is a breeze or a wind. The Applicant said that he had never received any instruction from any person, either a trainer, foreman or other supervisory manager that the belt press had to be isolated. He said that at all times he had observed others, the bel press had not been isolated. He also said that for the belt press to operate the conveyer must also operate and he had been instructed to ensure that the belt kept operating and had not been instructed by the operating conveyer had to be isolated. 24 He said that at the time of his actions the Company had not put in place any written procedures regarding access or adjustment of the cloth tracking device actuator arm. He said that it is stated that he did not conduct a Job Safety Analysis. He said that such analysis is only required when an operation or procedure is to be done outside of the normal or usual practice. He said that to the best of his knowledge and training on the day he was following the usual normal practice and an analysis therefore would not be required under such circumstances. 25 He also denies that he performed the actions immediately after being instructed not to by his supervisor. The Applicant said that he had worked for BHP Steel for 22 years an in this time he had never been disciplined by BHP Steel. He said he had an unblemished record and he considered that he had a good work history. The Applicant also said that he attempted to find work following his termination but had been at the time of swearing this affidavit had been unsuccessful in finding other employment. 26 The Applicant indicated that the matter originally came before Commissioner Bishop and the Union also filed an unfair dismissal application on the 5th of September 2003. He said that Commissioner Bishop on the 15th of October 2003 made a recommendation that he should be re-instated employment from that date however the recommendation was not accepted by BHP Steel. He said that Commissioner Bishop in the recommendation referred to his lengthy unblemished service. The Applicant said that he had devoted his working life to BHP Steel and at the time of his termination he was earning some $1384.00 gross per week. 27 The Applicant indicates the termination has had a serious impact on the financial security of his wife and himself. The Applicant said that he would not have done anything wilfully to jeopardise his employment and he believed he was acting in a proper was on 29 August 2003. 28 He also understood that other operators had admitted to acting in a similar way he acted in the past. The Applicant said that he wanted his position back at BHP Steel and could see no reason other then the events that occurred on the 29th of August 2003, as would operate to preclude this. 29 Exhibit 2 in these proceedings are the responses of the Applicant in this case. The Applicant said that he had read the Witness Statement of William James Whittaker, sworn on 16 January 2004 and made the following comments; 30 He says that Mr Whittaker contends that the "normal response" to a belt tracking problem is to cal a TEMA. On the morning of 29 August the belt was not porus because it was clogged up with polymer slurry and he asked Mr Whittaker to call TEMA but he refused and told him simply to wash the belt down with a hose. 31 He said that when TEMA employees undertake maintenance work on the belt press it is always done with the belt operating and the TEMA employees remove the guards n the running belt and they work in and around the belt while it is moving. 32 He said that Mr Whittaker comments that the "guard was opened" And that up to 29 August the guard was never secured and would often easily be blow opened just by the wind. Mr Lightowler says its an unfair risk representation of the events by Mr Whittaker to say that he had climbed onto the conveyer belt. 33 He says that Mr Whittaker's contention that "Take Two" is not correct that he in fact had considered the situation from a safety perspective and had formed the view that in the absence of any prescribed procedures the best process was initially for him to manipulate the actuator arm from outside the guarded area. The Applicant said that once that process was unsuccessful in order to do what he thought was reasonable to prevent a potentially dangerous situation occurring such as "SG" levels not becoming excessively high and such that the water going into the ironmaking east trains would not cause pollution, he followed a course that had been shown to him on numerous occasions, namely to gain access to the guarded area so that he could manipulate the actuator arm. He also said he is not aware of any isolation features as referred to by Mr Whittaker. 34 The Applicant said that the "Just Culture" referred to by Mr Whittaker indicates that there was no conscious violation of safety operation procedure because there was no such operating procedure in existence in relation to that process. The Applicant said that he had never read the incident report at any time prior to the termination of employment and what in fact had happened was that Mr Shephard read the incident report to him. He could not see the contents of the document has he was reading it and has no knowledge as to whether he read out the complete document to him or not however, he does recall commenting during the meeting with Mr Whittaker and Mr Shephard that the effect of what had been read to him was correct subsequently when he viewed the incident report as provided to him by his solicitors he could say that the last four lines on the third page titled "Facts Resulting From the Investigation" were never read to him and if they were he would have disagreed with the following component; "The tasks that Andrew was doing had no specific written procedure. Andrew stated that he had devised the means of doing this task himself. When asked who had shown him how to do this task, Andrew said 'no one'…………" 35 The Applicant said that in respect thereof he is aware this task has no procedure what so ever let alone no specific written procedure. Further with respect to the above quote he indicated to Messrs Whittaker and Shephard he had been shown how to do the task in the manner as performed by him. 36 The Applicant also said that his actions in undertaking his duties on that day were deliberate, but there was never any deliberate attempt to act unsafely and he did not make the admission referred to in the second half of the last sentence in Mr Whittaker's Statement. 37 The Applicant also indicates that Mr Whittaker misleads by saying that the he was climbing onto the conveyor structure. He was not doing that. The Applicant says it is misleading for Mr Whittaker to contend that the Job Safety Analysis wad necessary because the problem involved damage to the belt cloth. He said it was not unusual for the belt to track off. It can track off for a number of different reasons. He indicated that the operator can not be aware the one belt cloth can be defective until the belt is stropped. He said it is not necessary to do a Job Safety Analysis for a belt problem and there for it was not incumbent on him to do a Job Safety Analysis at that time because he was aware that the belt had tracked-off. He said he could not possibly have been aware before stopping the belt that it was tracking-off the damaged belt cloth. He said Mr Whittaker's Statement is "being wise after the event." 38 He also said that he did indicate to Mr Shephard that during the course of the discussions that took place that he had witnessed another employee manipulate the actuator arm whilst standing outside the guarded area by using a piece of timber. 39 The Applicant indicates that it is also correct that prior to the 29th of August he had never climbed inside of the guarded area before. He said that he had never been confronted with a situation where the actuator arm was on top of the cloth, but having been shown the method to use when that happened he indicated he simply followed the steps that he had been shown. 40 The Applicant also said that to his understanding on the 30th of August, when suspended and not attending to his other duties, another operator Andrew Edney was directed to work as the Thickener Attendant and it was not until 4 hours after he commenced his shift that he was approached by his Foreman and was instructed as to the incorrect procedure that the Applicant had allegedly been following and that he should not undertake a similar tasks in that way. Evidence of Mr Stan Tribe 41 Evidence in support of the Applicant was given by Mr Stan Tribe. Mr Tribe said that he has been employed by BlueScope Steel Pty Limited at the Port Kembla Operations for a total period of 27 years and that he has been employed as an operator Level 3, at the Sinter Pant. He said there are generally five areas in the Sinter Plant in which they work known as Ground Floor, Machine Assistant, Machine Operator, Dewatering and Coke Crusher. He says he has worked in all five areas and regularly does so on a rotating basis. 42 The Witness said that part of the process in the area where they work involves operating the Filter Cake Conveyor 1 (FCC1) Conveyer Belt. He indicated that there are two belt Presses that feed onto FCC1 and they are a part of a process which effectively dewaters and cleans the by-product of the Basic Oxygen Steelmaking Plant plus the No. 5 Furnace. He said the dirty water is processed though a Belt Press system which takes away the slurry containing all the impurities which are then removed and disposed of. There is a big settling pond located in the ground which is called the Thickener Pond and water that leaves that Pond goes to the Jord which is another Pond which is located above ground. From there, the slurry is sent to the Belt Presses. 43 The Witness indicates that if the FCC1 Conveyor does not operate it can have severe adverse impacts back down the line including at the BOS and the No. 5 Furnace. He said their work does not involve any electric work, it is more operation of the process so if there is an electrical fault on the FCC1 they can't fix it they have to call a trades person to do that job however, if they notice that a problem with the belt is due to tracking-off, or slipping or build up of material they can usually fix that problem themselves and take it upon themselves to do that because of the flow and effect down the line if it is not fixed. The Witness said that if they need to call an electrician or fitter for example it is important that they undertake their work quickly because if that does not happen they had to let the be BOS and No. 5 know that they are not to send material over and that means that they have to recirculate it throughout their own systems and if the back-up gets bad enough they will have to call in tankers etc. to fill up with the material and then they have to dump it. 44 The Witness said that the Bel Presses also often track-off and in the past they have always fixed those themselves. He said the tracking of the Belt is monitored and regulated by a tracking limit. The tracking limit follows the Belt and when it gets to its extremity the tracking roller comes into plat and tracks the Belt back to its centre position. 45 The Witness said however, sometimes due to water and dirt and other reasons the tracking limit device does not work and accordingly the practice has always been in the past, that it is manually operated such as to get it working again so that the Belt re-tracks properly. The Witness also said that in some circumstances where it could not be activated again, the common practice was to get into the guarded area and to actually hold the actuator arm manually until the Belt tracks back into position. He said their was never any need to worry about isolation procedures at the Belt Press Filter because the guards were either permanently open or would swing open with a decent breeze. 46 The Witness acknowledged that there are isolation procedures in the Sinter Plant and that they are applicable in other places in the Sinter Plant, but he has never considered that these isolation procedures were applicable at the Belt Press Filter. He also does not consider that it would be a breech of cardinal rules not to follow isolation procedures at this place. 47 He said that a number of yeas ago, when the truck drivers would alter the direction of the Belt to fill up the second bin when one bin was already full they would operate a button to change the direction of the Belt and often the Belt would slip and that would register in the Control Room as "zero speed". He said that that would have the effect of stopping the Belt Presses and the conveyor and it was necessary for one of the operators to re-start the Belt by pushing the button in the Control Room downstairs and then going upstairs to the Conveyor to check the Conveyor to make sure that it was going ok and by the time they got up there the Conveyor had stopped again. They then would have to go back downstairs and try the process all over again and it would all became quite maddening because they would be going up and down stairs and pressing buttons and the Belt would stop before you could do anything about it. 48 On that basis the Witness said that management then installed a Belt Starter Button up on the No, 1 Belt Press Panel upstairs so they could hit the button while being adjacent to the belt and if the Belt did not work they could immediately hit it with a shovel or piece of wood, or if that didn't work, the common practice was to actually get onto the Belt and walk it with some pressure to get it started. This was done with everyone's knowledge and the blessing of the management. He said once the Belt was renewed a few years ago, the problem with it slipping and cutting out didn't happen and that practice just stopped for that reason however, up until the time Andrew Lightowler was sacked, the guards were always open and there was never any problems with Operators going inside the Belt Press guards and his practice was always to go into the guarded area and simply manipulate the actuator arm by hand. 49 The Witness said that since the termination, management has now bolted all guards upright and renewed all the guards around FCC1 and have also installed mechanical air operated tracking device for the tracking roller so that it is no longer necessary to go into the guarded area. This could have easily been done beforehand. 50 Also the Witness said that as long as he had been aware there was never any written procedure to be followed for resetting the actuator arm tracking device prior to Andrew Lightowler's dismissal. He is not sure in fact if there is a written procedure now in respect to that particular task, and if there is he has not seen it. He said in any event, nowadays a written procedure is not required because effectively one cannot access the guarded area to carry out this task. 51 The Witness also said that morale in the Sinter Plant is now at an all time low because it is generally regarded that the termination of Mr Lightowler is manifestly unjust. He indicates he has known Mr Lightowler since he commenced work at the Sinter Plant approximately 18 months to 2 years ago. Although they work on different shifts, he has run into him on numerous occasions when he may have relieved him in various sections and has always found him to be a most competent and reliable Employee and as far as his observations were concerned he was never aware of Mr Lightowler acting unsafely. He said Mr Lightowler had a very good reputation amongst the workforce as a safe dependable colleague. Evidence of Mr Allan Geoffrey Thomas 52 Mr Allan Geoffrey Thomas gave evidence in the case. This statement is shown as Exhibit 10 in these proceedings. Mr Thomas deposed that he was employed as an Operator - Level 3 at BlueScope Steel Pty Limited and has been employed by BlueScope Steel for the past 25 years. The Witness deposed that most of the period of his employment has been spent in the Ore Preparation area. He has also worked as a shift supervisor and for a period of about 3 years he worked in the Human Resources Department on a restructuring programme. 53 The Witness deposed that on 29 August 2003 he was away from the Plant on a 5 day block undergoing routine statutory obligation training. During that training week he was informed by one of the other Operators that Andrew Lightowler had been sacked from the Plant. He said his reaction was one of absolute shock and amazement. He regarded Andrew Lightowler to be a diligent competent and safety conscious employee. 54 The Witness said that it is a fairly common occurrence that the Belt in the Belt Press tracks "off centre". When this happens the Belt needs to be put back "on track". The tracking of that Belt is regulated by a tracking limit, which is a small actuator arm controlling tension on the tracking rollers. 55 He said that when the Belt tracks-off, the Belt will stop if it hits the track-off limit. If the Operator is downstairs in the Control Cabin he will get an alarm signal indicating "Belt-track off" and the Belt will display in red on the computer monitor screen. 56 He said the then has to put the Belt into "manual" in he substation and then will have to go upstairs into the Belt Press Filter area and investigate the reason for the Belt tracking-off. He said if the belt has stopped because it has tracked off limit and hit the actuator arm the Operator will then ascertain whether the Belt tracking limit needs to be re-set. If this is necessary then the operator will reset the actuator and then restart the Belt. 57 The Witness said that part of that process can involve the Operator manually adjusting the track-off actuator arm and it is done either by means of attempting to manipulate it with a stick or piece of pipe or by going into the guarded ara and manually adjusting the track-off arm. There is also occasions in which the Operator needs to go into the guarded area to reset the actual track-off limit arm. 58 The Witness indicated that there was never any problem with entering the guarded area to perform either of those tasks. In fact it was normal operating practice. 59 He sais that whilst he was aware that there are isolation procedures within the Sinter Plant, he did not consider these to apply in regards to the Belt tracking problems. The main reason for that, apart from common practice is the Belt needs to be running in order to be tracked on properly. 60 The Witness said that he did not consider it a breech of Carding Rules to enter into the guarded area. Up until the time of Andrew Lightowler's dismissal, the guards we unsecured and were regularly open or would blow open in a stiff breeze and access could easily be gained to the area within the guards. 61 The Witness said that in addition, with respect to isolation procedures in the Belt Press Filter area, in the past he and others had to restart the smaller Belt, the Filter Cake Conveyor 1 Belt by applying pressure in a way such as "peddling" the Belt with one foot. 62 He indicated that since the time of Andrew Lightowler's dismissal there have been substantial changes to the work requirements in the Belt Press Filter Area, these have included; i. Procedures have been written and documented for performing this task; ii. Instrument air has been introduced whereby it assists in re-tracking of the Belt such that the Operator does not need to manually operate the Belt limits; iii. The guards have been bolted shut. 63 The Witness said that maintenance on the Belts in this area are carried out by a company known as TEMA Pty Limited which is a company external to BlueScope Steel Pty Limited. 64 He said that prior to Andrew Lightowler's dismissal, when TEMA Employees would carry out maintenance on the Belts and the Belt Press Filter area, they would constantly work with the Belts running with the guards open, and would also work above the moving Belts without placing the plates over the running Belt. 65 The Witness indicates that he was aware that subsequently TEMA used plates that had been prefabricated in lighter materials. In fact, it was TEMA Employees who initially showed him how to re-track Belts, and always that has to be done while the Belts are running. Evidence of Mr Ian Stewart Ross 66 Mr Ian Stewart Ross testified that he was the manager of Ian Making at BlueScope Steel Pty Limited and that he had held that position since 1 August 2003. 67 The Witness said that in his current position he is responsible for the overall management of the Iron Making process. Mr Glenn Shephard, Operations Manager, reports to him. 68 On the 29th of August 2003 at around 6.30pm he received a telephone call from Mr Shephard who advised him there had been a serious safety incident arising from a breach of isolation procedures by an operator in the Sinter Plant named Andrew Lightowler. Mr Shephard advised him that that he was in Sydney and that Mr Phil Whittaker, Mr Lightowler's Team Leader, witnessed the incident and that an investigation was underway. 69 The Witness then phoned Mr Whittaker and asked him the details of the incident that had been reported. Mr Whittaker indicated to him that he had come across Mr Lightowler inside the guarded area of the No. 1 Belt Press Fitter, he said he was trying to move the belt press tracking device actuator arm whilst the belt press was moving. 70 The Witness then said that he asked Mr Whittaker a number of questions to confirm exactly where the incident had occurred and he said Mr Whittaker told him the conveyor is approximately 5 meters from the ground and with the belt running, Mr Lightowler could easily have slipped and been crushed by the belt or could have fallen to the ground. 71 Mr Whittaker had also indicated that Mr Lightowler had undergone a drug and alcohol test in accordance with the Company's policy. The Witness said he also spoke to Mr Shephard to discuss the process he should follow then next day in relation to the investigation of the incident. The told Mr Shephard it was a serious incident and that he would need to consider whether Mr Lightowler's behaviour constituted as 'unacceptable behaviour' under BlueScope's Employee Relations Guide. 72 On the 30th of August in the afternoon he received a call from Mr Shephard, and that Mr Shephard had said to him that they had concluded the investigation of the safety breach involving Andrew Lightowler. He said that Mr Shephard then detailed to him all of the contents of the incident and what had happened. He said Mr Shephard had advised him he had reviewed the BHP Steel (AIS) Pty Ltd Port Kembla Steelworks Employees Award 2000 and BlueScope 's Employee Relation Guide. He said he suggested to Mr Shephard that he re-visit the facts again and when he met with Mr Lightowler and ensure that Mr Lightowler had nothing to add. Mr Shephard said that, subject to his further discussions with Mr Lightowler, he intended to proceed to summarily terminate Mr Lightowler's employment. 73 The Witness said that later that day he received a phone call from Mr Shephard who advised him that he had summarily dismissed Mr Lightowler, and that Andrew Gorman of The Australia Workers Union had appealed Mr Shephard's decision. 74 The Witness said that he proceeded to make arrangements for the hearing of the appeal and that Mr Peter Fluder, Human Resource Advisor was chosen to hear the appeal. He said he did not attend the appeal conference but he was aware through the discussions of Mr Shephard and Mr Fluder that the appeal conference was heard on the 1st of September. He said that following the appeal conference he had a meeting with Mr Fluder to discuss what had occurred and that also in attendance at that meeting was Mr Howard Williams and Ms Elizabeth Webb, both human resource officers at BlueScope and Mr Shephard. 75 Mr Fluder had told him that Mr Lightowler was given the opportunity to provide any mitigating circumstances or new information that might be relevant to BlueScope's decision to dismiss him. Mr Fluder advised him of submissions that were put by Mr Lightowler and by Mr Gorman on Mr Lightowler's behalf including the fact that; · Mr Lightowler had a long and unblemished record of service with BlueScope Steel. · Mr Lightowler was very remorseful and was willing to take a more active role in highlighting safety issues within the workplace. · Mr Lightowler believed he was acting in accordance with custom and practice at the time that the incident happened. Peter Illioski , a Level 3 Operator, had claimed during the appeal conference that he had performed the task of fixing the Belt Press by working inside the guarded area without isolating and climbing onto the conveyor structure in the same way that Mr Lightowler had; and · What Mr Lightowler did was a mistake but it was not one that should be punishable by dismissal. 76 He said they discussed the submissions made and then incident generally and they formed the view that there were no circumstances or information that would justify overturning Mr Shepherd's decision to dismiss Mr Lightowler. However, as part of an internal peer review process, he discussed the situation with Mr Ross Murray, President of Iron and Slab, to see whether he agreed with his decision. 77 The Witness indicated he advised Mr Murray of the incident, the basis of Mr Shephard's original decision to terminate Mr Lightowler's employment, and submissions made on Mr Lightowler's behalf during the appeal conference. Mr Murray agreed with him that the decision to dismiss Mr Lightowler should stand. 78 He said that on 2 September 2003 he spoke with Mr Shephard and advised him that the decision to dismiss Mr Lightowler would stand. He asked Mr Shephard to communicate this decision to Mr Lightowler. 79 He said he strongly believes that it would be detrimental to BlueScope to have Mr Lightowler return to the Sinter Plant, or anywhere else in BlueScope's operations. As a manager, he has a responsibility to ensure the health, safety and welfare at work of the employees who he manages. 80 He went on then to explain the comprehensive training in place at the Sinter Plant to ensure that employees know how to perform their duties in a safe manner. 81 It should be pointed out that at a cross examination by the Commission several important aspects of this Witness's evident must also be reviewed. Reference was made within the Witness's Statement to the Applicant being a 'plodder' and under further examination should be mentioned that no reference anywhere any where within the employees work record has ever been made to the word 'plodder' other then the fact that the worker has an exemplary work record. Furthermore it was agreed by Mr Ross on review of the processes which were used that the appeal process in itself was flawed. Evidence of David Andrew Bell 82 David Andrew Bell testified that he was the Systems Controller at the Blast Furnace. He said he has had that role since August 2003. Prior to that he was a Sift Operations Manager in the Sinter Plant. 83 He said that he was the supervisor of Mr Lightowler then an Operator in the Sinter Plant from October 2002 to August 2003 and that between mid 2001 and October 2002 in circumstances their was a roster pattern of 8 and 12 hour shifts and that he supervised Mr Lightowler on an irregular basis. 84 The Witness described the Belt Press filters and how the Belt Press Filter operates by squeezing chemically treated slurry between two nylon filter cloths. He explained how tension is applied to the cloths by a roller which is moved by compressed air bellows. He also explained the problem with the belt tracking-off and being re-tracked. That how if an employee notices that the Belt on the Belt Press Filter is tracking off the conveyor structure, the normal and accepted practice is to take the following steps; a) determine which way the belt has tracked-off; b) determine which direction the tracking roller should be (which depends on whether the Belt Press is going in forward or reverse); c) start the Belt Press Filter up in "manual" mode; and d) Manipulate the actuator arm accordingly with a long tool such as a pole, shovel, piece of wood or the like, whilst standing outside the guarded area. 85 The Witness indicated that if this process is followed it is not necessary to isolate the Belt Press Filter. However, if for some reason it is necessary to go inside the guarded area the Belt Press should be isolated. 86 The Witness is aware of the need to re-track the belt on average about once a week. That to the best of his knowledge tracking is usually done with the system which he has described. That working inside the guards would create a hight possibility of injury given the slipperiness of the conveyor belt and the likelihood of being jammed by the Belt Press if the person were to slip. 87 He understood that Mr Lightowler had opened the guard to the Belt Press Filter, stepped inside without isolating the machine and climbing onto the conveyor structure. 88 He recalls that on September 28 2002 and 20 October 2002, along with other employees had had discussions with Mr Lightowler over the Cardinal Rules which apply to the plant. He said he had also on 20 October had discussions with Mr Lightowler in relation to Job Safety Analysis. Also on 28th of December 2002 conducted a job procedure check with Mr Lightowler with relation to isolation regulations. Evidence of Mr Peter Wolfgang Fluder 89 Mr Peter Wolfgang Fluder gave evidence in this regard. He said that he was a Human Resource Adviser with BlueScope Steel Pty Limited. He had been employed in that role since may 2003. 90 The Witness says that on or about the 30th of August 2003 he was asked to chair an appeal conference in relation to the dismissal of Mr Lightowler. He was informed that Mr Lightowler's employment had been terminated following an investigation into a safety incidence that occurred on 29 August 2003. the safety incident occurred in the Belt Press Filter Station of the dewatering unit in the Sinter Plant and involved Mr Lightowler climbing onto the conveyor structure of the No. 1 Belt Press. 91 He said that the ability to appeal the dismissal arrises under the BHP Steel (AIS) Pty Ltd Port Kembla Steelworks Employees Award 2000. He said that on the 1st of September 2003 Mr Lightowler's appeal was heard. He was accompanied by Mr Glen Sheppard. Mr Lightowler was accompanied by Mr Andrew Gorman and an employee named Mr Peter Illioski. 92 He said a number of points at the conference which took place including that; · Mr Lightowler had a long unblemished record of service with BlueScope; · Mr Lightowler was very remorseful and willing to take an active role in highlighting safety issues in his workplace; · Mr Lightowler had not been trained properly and that there was no procedure in place in relation to fixing the Belt Press; · Other employees fixed the Belt Press in the manner that Mr Lightowler had done on 29 August 2003, and therefore it was custom and practice to perform the task in this manner; · What Mr Lightowler did was a mistake but now one punishable by dismissal. 93 He said that during the appeal conference Mr Lightowler admitted that he should not have gone into the guarded area. He said also that during the course of the appeal conference Mr Illioski claimed that he had in the past attempted to fix the Belt Press by climbing onto the conveyor structure within the guarded area without first isolating the machine. He had further claimed that he had shown Mr Lightowler to perform the task in this way. When he asked Mr Illioski why he climbed in the area and who instructed him to carry out the task in that manner he responded saying words to the effect of; The conveyor is designed so that you can't turn the conveyor off to work on the job and most employees don't know that you cannot open the door to access the limit switch. 94 The Witness said that at the conclusion of the appeal he advised Mr Lightowler and Mr Gorman that BlueScope would consider the submissions put on behalf of Mr Lightowler and would advise them of the decision of the appeal in due course. 95 The Witness also testified that after the conclusion of the appeal he had asked Mr Shephard to take him to the Belt Press so that he could view the area. 96 He said he viewed the area and then Mr Shephard met with Mr Ian Ross, the manager of the Iron Making, Mr Howard Williams, Workplace Relations Specialist, and Ms Elizabeth Webb, Human Resource Manager for the Iron and Slab area. He indicated he informed those present of the points made on behalf of Mr Lightowler. Mr Ross advised him that he could consider the situation with other senior BlueScope Management. Exhibits in Proceedings · Exhibit 3, as shown is a copy of what is now BlueScope Steel Pty Limited but was BHP Steel Pty Ltd "Cardinal Rules" for the steel works · Exhibit 6, are the isolation regulations which is the RCP or Reference Critical Procedure · Exhibit 7, is a listing of people who have attended Critical Procedure Training, including the Applicant · Exhibit 8, photographs of the scene, which the Commission has seen · Exhibit 9, is a fax copy of an AMH Shift Ops CRW Focused Audit Submissions Applicant Submissions 97 In their Submissions the Applicant has contested that in the end it is very difficult to determine exactly what is alleged by the Respondent to have been the actual conduct engaged in by the Applicant Mr Lightowler, such as would justify his termination by way of a summary dismissal. 98 They say that it can not simply be a the question of entry into the guarded area as the Respondent and its servants and agents such as Mr Bell, were aware of and apparently accept that persons went behind the guard in order to access the actuator arm. This they say is clear as various objects such as coke bottles and welding rods, nuts or washers attached were positioned from time to time in the actuator arm in order to avoid the tripping of the Belt Press. 99 They argue that the evidence also establishes that in the re-setting or re-tracking of the Belt Press such re-setting was carried out live, and indeed whilst the equipment was live operators who were employed in the Sinter Plant adopted what is described at Paragraph 15 of the Respondent's Submissions as the Company's usual methodology to deal with the conveyor of the Belt Press tracking-off to one side. They argue that this usual methodology prior to engineered changes instituted in September 2003 involved the Operator finding a piece of stick or pipe and physically pushing it at the actuator arm or running belt to put the belt back on track. 100 They argue that with respect to the Respondent the Company's usual methodology can only be described as primitive in the extreme. They also argue that it can not be said that a company adopting such an approach, had applied itself in any appropriate way such as to ensure the Health, Safety and Welfare of employees in its place of work. They say that there are further deficiencies in the attitude of the Respondent to safety, readily ascertainable by the evidence given in the proceedings. 101 In terms of the isolation regulations for which the Respondent placed great reliance, especially provided for at 5.7 Planning Isolations; Best practice is to document all isolation procedures. Isolation procedures can be stand alone or can be included in job procedures, maintenance instructions or work orders etc. 102 They argue that the evidence in this matter clearly establishes no such procedure is ever documented in relation to isolation to be performed in the Belt Press within the Sinter Plant. It is therefore open to the Commission to find that the Respondent did not in this matter, did not in accordance with its own procedures establish and follow "Best Practice". They draw attention to Mr Whittaker's Statement where he says; "however in circumstances where there is something wrong with the Belt, such action would invariably be just a temporary solution. Ultimately the Belt itself may need replacing in which case TEMA would change the Belt. Replacement of the Belt is not required on a regular basis." 103 They argue that in the cross examination of the Respondent's witnesses, questions were asked concerning the occurrences of an incident where the Belt on the Belt Press suffers damage. They argue that it is open to the Commission to find that such an occurrence was not a regular. They say that it is further open to the Commission to find that the Respondent did not have in place any procedure or training where it was mandated that damage to the edge of the Belt or intrusion of the actuator arm or roller into the Belt were circumstances where no remedial action was to be undertaken by the operators, and that TEMA be called and the Belt Press shut down. 104 They argue that the Respondent submits that when the TEMA do perform work within the guarded area of the Belt Press without first isolating it, that they do so in accordance with TEMA's own work safe procedures for working on live equipment. They argue that at no stage of the proceedings did the Respondent call any evidence concerning the applied TEMA work practice. The issue was therefore left open as to how TEMA actually works in the area safely without first isolating both the Belt Press and the conveyor belt and how this isolation is achieved and by whom. 105 They say that the Respondent did not call any evidence identifying its own requirements for the protection of TEMA employees working within its operations in the Belt Press area, such as they would be exposed to risk whilst working in line with the equipment. 106 They say that therefore viewed in this manner the evidence or lack of evidence leaves open an issue as to whether employees of both the Respondent and TEMA both did work within the area at times with both the Belt Press and the conveyor belt running. So the evidence clearly establishes that no attempt was made by the Respondent to use the guard in the manner in which the guard was installed and maintained to exclude persons from the area. 107 They say that the Respondent at no time put into evidence any new procedures relating to the installation of the new system or equipment. Nor did it put into evidence any further written procedures as were described where the Belt was torn and stuck on the actuator arm that in such a situation is should be isolated or alternatively bought to the attention of the supervisor. 108 They said there is no evidence to demonstrate the Respondent after the incident on the 29th of August 2003 took any steps such as to ensure that employees were firstly aware of the nature of an equipment malfunction which could occur on the Belt Press and that where the Belt Press was torn no attempt should be made by an operator to move the actuator arm. 109 They say that it is fairly obvious from the evidence that equipment malfunction as was clearly known, was not irregular. The Respondent took no steps to obviate any risks to employees. They say had it have been done so there would have been no need to rely on the imperfect secondary safety procedures provided under the TAKE 2 and Job Safety Analysis safety techniques. 110 They argue that for a Respondent the size of this Respondent to rely on such secondary procedures in the absence of primary procedures such as an effective guard and the detailed work procedure coupled with appropriate training is inexcusable, and as such a situation provides strong litigation with respect to the misconduct of the Applicant. 111 They say it is open to the Commission to find, based on the submissions made that there were no proper steps taken by the Respondent in these matters. 112 They say the Respondent conveniently ignores paragraph 14 of exhibit 12. In particular the following Statement of the Applicant; " I didn't feel it was necessary as the Belt Press hat dripped out due to the belt being tracked off. I didn't feel like I was in any danger when I was doing the work. However, in hindsight and since speaking with Phil about the incident, I realise now that I could have been injured." 113 They say that in paragraph 14 of the Statement it is the first occasion on which the Applicant is asked to explain his conduct and he explains it in full and with complete candour. It is inappropriate on the part of the Respondent that only paragraph 18 of exhibit 12 is referred to. 114 They say that the Respondent in its Submissions places great credence upon its statutory responsibilities under the Occupational Health and Safety Act 2000. The Applicant argues that it is open to the Commission to find that the Respondent comprehensively failed in this regard. The Respondent can not as submitted at paragraph 56 and 57 of the submissions seek to transfer responsibility for the provision of a safe system of work. Indeed they argue that if the Respondent clearly demonstrates that there was misconduct by the Applicant. It must be shown that it discharged its statutory duties to the Applicant in respect to the Occupational Health and Safety Act 2000. 115 It is argued that when it is considered that for an employee to commit conduct that is in wilful disobedience of a lawful and reasonable order, one must first find the lawful and reasonable order. In this case it is difficult to find, given the manifest failures of the Respondent in addressing its obligations as to safety towards employees employed as operators within the Sinter Plant and required to work in the Belt Press. 116 They say that viewed very simply this case reduces to one where the employee, in the absence of a proper safe system of work, quite simply "fell through the cracks". The defences within the "Swiss Cheese Model" failed at all levels. 117 It is also argued that the Respondent conveniently ignores in its submissions the evidence of both Mr Ross and Mr Bell. This is understandable in that Mr Ross did not emerge as a witness of credit particularly in the respect of the evidence he gave to his concerns about the re-employment of the Applicant. They say that in contrast Mr Bell expressed clearly a view that if the Applicant had been made aware of or is now fully aware of the appropriate procedures to follow that given past conduct, save for this incident, he would have considerable confidence in the Applicant carrying out his tasks as directed. There is no basis therefore for upon which one could deny the Applicant reinstatement in employment. 118 It is also argued that given the work history of the Applicant over a period in excess of 20 years the Commission must be reasonably confident that if reinstatement in the employment the Applicant would not similarly be involved in an incident such as that which occurred in August 2003. Indeed if the Commission was to find that the Applicant did engage in misconduct on the 29th of August 2003 it is a long standing principal within the Commission that a termination even if lawful may be so unjust as to warrant intervention where termination has been shown to be "to harsh a consequence". 119 The Commission is referred to the Gartrell White (No.3) (1990) 35 Industrial Relations 70 (at 98) where reference is expressly made to the decision in Metropolitan Meat Industry Board v AMIEU [1973] AR (NSW) 231 at 233 and in particular to the following passage: "But even if there are grounds for a termination the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, Commissioners and Committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be to harsh a consequence". 120 And they argue that this is precisely the case here. 121 It is argued that the Commission should act with industrial justice. 122 They argue the Applicant has been treated in a most capricious and perfunctory way. He has not been accorded a "fair go all round". 123 It is argued the only appropriate remedy is for the Applicant in this case to be reinstated in employment. It is a matter for the Commission as to any ancillary order. However, the appropriate orders would be for full continuity and payment of the full remuneration as lost in the period between termination and reinstatement. 124 They also argue that no cogent evidence has been put forward by the Respondent as would lead the Commission to consider that it would be impractical to make an order for reinstatement or re-employment. Any evidence as put primarily by Mr Ross is contrived and ought to be found so. Respondent Submissions 125 The Company have argued that BlueScope Steel Pty Limited terminated the employment of the Applicant on 30 August 2003 on the grounds of serious misconduct. The serious misconduct they claim arose from a safety incident on 29 August 2003, whereby the Applicant failed to follow defined critical procedures. Specifically the Applicant failed to isolate and lock prior to entering the guarded area and climbed up onto the conveyor structure No. 1 Belt Press Filter (the belt press). 126 They argue the actions of the Applicant were dangerous, exposed him to risk of serious injury and demonstrated disregard for workplace safety. Such actions justified summary dismissal. 127 They argued in the cases concerning summary dismissal for misconduct the employer must establish to the reasonable satisfaction of the Commission that the employee was guilty of the misconduct alleged. They say that if the employer can so satisfy the Commission then the onus is on the employee to demonstrate that termination was harsh unjust and unreasonable. 128 They say in this case the Applicant did not deny the actions or failures attributed to him by the Company. They argue the primary issue for the Commission to determine is therefore whether in the circumstances, the actions and failures of the Applicant amounted to serious misconduct, and whether summary dismissal should have been applied to him. 129 They argue that the Company determined and remains of the view that the Applicant's conduct on 29 August does amount to serious misconduct justifying summary dismissal and rejects that the dismissal was in any way harsh unjust and unreasonable. 130 They say that the Applicant was employed by the Company as a Level 2 Operator in the Sinter Plant at the Company's Port Kembla Steel Works. 131 They argue that the Applicant who had worked at the Sinter Plant for approximately 3 years and for the Company in total for a longer period. They say the Applicant had been trained by the Company in the certain techniques of TAKE2 and Job Safety Analysis. TAKE 2 they say involves not rushing into a job and thinking though what needs to be done in advance. They say the Applicant has also retrieved training from the Company in respect to the application of isolation and locking procedures. 132 They say that on 29 August 2003 the Applicant was confronted by a situation in which the conveyor belt on the Belt Press in the dewatering unit of the Sinter Plant was stuck on the actuator arm and as a result had torn the belt. The Applicant never confronted such a situation before. 133 They say the Applicant initially acted in accordance with the Company's usual methodology to deal with the conveyor belt of the Belt Press "tracking off" to one side. However, when this did not resolve the issue he disregarded the need to TAKE 2 and perform a Job Safety Analysis. They say that instead the Applicant moved himself onto a small piece of steel rail on the conveyor structure inside the guarded area without following isolating and locking procedures. 134 They argue that by not following isolation and locking procedures the Belt Press and conveyor was still in operation whilst the Applicant was inside the guarded area and standing on the conveyor structure. They say that the Applicant then attempted to manipulate the actuator arm from his position on the conveyor structure. 135 They argue that the belt press area increasingly is flushed with water and the conveyor belt is wet and slippery. They say this was confirmed by the inspection undertaken by the Commission on 22 March 2004. 136 They argue the circumstances in which the Applicant had placed himself afforded him no protection should he have slipped or fallen, and not withstanding the denial of the Applicant, a particular risk, as observed on inspection would have been for the Applicant to fall and be taken into the chute. 137 They argue that by conducting himself in the way described the Applicant not only disregarded procedures but also exposed himself to risk of serious injury. They argue that it is only on the direction of Mr Whittaker, Shift Team Leader in the Company's Ore Preparation Department, who happened upon the incident, that the Applicant removed himself from the danger in which he had placed himself. 138 They argue that there has been no credible explanation by the Applicant as to why he conducted himself as he did, in circumstances where he well knew the proper steps which were required of him. They say the only real explanation provided by the Applicant as to his conduct is that it had been a tough day with lots going on and he just wanted his shift to end. They argue that this is not acceptable and can not be an excuse for disregarding safety. They argue that it is essential that an employee has full regard for safety at all times. 139 It is argued on behalf of the Applicant they say that as the gate of the Belt Press was not fixed shut to the guard on the day in question this in some way excuses the Applicant from going inside the guarded area and standing on the conveyor structure without isolating. It is also suggested that the guard that had the guard been permanently fixed this would have prevented the situation from occurring. 140 The Company argues that these propositions must be rejected. They disregard the failure of the Applicant to TAKE 2 and perform a Job Safety Analysis, and had the Applicant done so the steps he should then have taken should have been obvious to him, that is isolating the Belt Press and/or alerting the supervisor to the situation. They also argue that the propositions ignore the obligations of the Applicant to take appropriate steps to ensure his own safety. 141 It is argued that Mr Gorman conceded on behalf of the Applicant, that his actions on 29 August 2003 were wrong. It is also argued that the Applicant now recognises that he had placed himself in danger and could have been injured. They argue that the Employee is required to have full regard to safety at all times. Therefore, they argue that for the above reasons the propositions of the Applicant must be rejected. 142 They also argue that prior to the safety incident involving the Applicant, employees were not required to perform a Job Safety Analysis. They say this argument is not supported by the evidence and must equally be rejected. 143 They argue that in the past Job Safety Analysis Audits were conducted by Mr Tribe on 30 March 2003 and Mr Thomas on 21 May 2002, prior to the incident involving the Applicant. The Applicant also acknowledges having previously undertaken Job Safety Analysis'. 144 It is argued that the Company's isolation regulations specifically apply to all departments and personal in BHP Flat Products and BHP Coated Products - Australia sites in the Illawarra area. There are no exceptions to this. There is nothing in the regulations which exempts the Belt Press from this situation. 145 The Applicant also acknowledges having been trained in isolation, but he claims that he has not previously seen any document which is shown as Exhibit 6 in the proceedings. However, Mr Whittaker states that the Applicant told him just after the incident that he knew he should have "racked it out" that is isolated the equipment. 146 They argue also that the Applicant's arguments are that his actions were consistent with custom and practice of employees in the area and the Company rejects this case and submits that the Commission should also reject this proposition. They say that a custom and practice can only be implied if certain criteria are met. Reference is made to the case of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hasting (1977-78) 16 ALR 363, where it was held that a term should only be employed into a contract by custom and practice where there is consistent course of conduct. 147 They also argue that the notion of "custom and practice" was not raised on behalf of the Applicant until the appeal conference in respect to the Applicant's dismissal. They argue that at the appeal conference the issue of custom and practice was raised by Mr Illioski, a Level 3 Sinter Plant Operator. Mr Shepherd refers to a subsequent discussion with Mr Illioski in which Mr Illisoki acknowledged that he had never stood on the conveyor belt to manipulate the actuator arm. Mr Illioski was not called to give evidence on behalf of the Applicant in these proceedings. 148 They further argue that Mr Tribe accepts that he has never climbed onto the conveyor structure of the Belt Press as the Applicant did on 29 August 2003. They note that Mr Tribe also acknowledges that he had never seen anyone else do this. 149 They argue therefore that there is no custom and practice whereby employees go inside the guarded area of the Belt Press and climb onto the conveyor structure without isolating. It is also argued that members of the TEMA had been doing it and therefore it is acceptable for all employees to do it. They argue that TEMA is contracted by the Company to perform maintenance work on the Belt Press. 150 They argue that employees of TEMA do perform work within the guarded area of the Belt Press without first isolating it, but they do so in accordance with TEMA's own safe work procedures for working on live equipment. Therefore, this argument must also be rejected. 151 They submit that the Applicant argues that the termination of his employment was unfair in circumstances where shortly after the incident the Company took steps to implement a new hydraulic method for re-tracking the conveyor belt on the Belt Press. However, they argue this situation would not remedy the situation encountered by the Applicant on 29 August 2003, it would have still required isolation and the attention of a supervisor. 152 The Respondent then turns to the question of whether the termination was harsh, unreasonable and unjust in respect to the incident and the circumstances encountered by the Applicant. The Company is continually looking for ways to further improve safety at the steel works for employees and indeed is obligated by statute to do so. However, subsequent improvements should not be allowed to form basis for the Applicant to argue that disregarding the applicable safety procedures is acceptable behaviour. 153 They argue that the Applicant's misconduct must be viewed in the context of the nature of the operation of the Steelworks environment and the Company's occupational health and safety obligations. They argue that the Company has an absolute obligation to provide a safe work place for its employees and that employees also have duties under the Occupational Health and Safety Act 2002 and that requires the employee to ; (a) take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work, and (b) co-operate with their employer to enable compliance with any requirement under the OH&S Act that is imposed in the interest of health, safety and welfare on the employer or any other person. 154 They argue that the Applicant acknowledged in cross examination that working safely is a condition of employment. They also argue that the Company's Cardinal Rules sate that; Working safely is a condition of employment. …and… All injuries can be prevented. 155 It is argued that the Applicant has been trained by the Company in all these procedures TAKE 2, Job Safety Analysis, Isolation Procedures and Cardinal Rules. Exhibit 14 is an example of this. They note the Applicant also acknowledges the training he has received from the Company. There should be no issue as to whether the employee was trained in these matters. They argue that the Applicant's behaviour was in breech of his conditions of employment and put himself at serious risk of injury. 156 They therefore argue that for all of the above reasons the actions and failures on the part of the Applicant on 29 August 2003 constitutes serious misconduct. 157 They argue that the Commission has not recognised the employees duty to work safely at all times. They refer to the Harford case, in which the Commission in referring to the safety incident led to termination of Mr Harford's employment, observed it: should serve as a warning to all employees… that they are required to perform their duties at the highest level and with the highest regard for safety. Disregard for safety in any form can't be counted as a normal form of behaviour. I hope that this incident serve as a lesson to all employees that they are required, within the code of conduct of the Steelworks, to perform their duties at a proper level with full regard to safety at all times. 158 Reference is also made to the decision of Watson J in Re Federated Industries Association of Australia, New South Wales Division and Australian Iron & Steel Pty Ltd (1978) IAR 177 at page 178. 159 Reference is also made to the case of The Australian Manufacturing Worker Union (on behalf of Mark Harrison and Keith Donaldson) v Australian Co-Operative Foods Limited [2000] NSWIRComm 199, Sams DP referred to comments of Petterson CC in Zippara v K-Mart Auto and Parker and K-Mart Auto (No.s IRC2225 and 2226 of 1992, unreported, 11 February 1993): every employer has imposed upon him a stricture of statutory obligations to provide, not only a safe method of work, but a safe place in which to work - and all employees have, within the terms of their duties, an equal obligation to work safely so as to protect themselves and other employees in the course of those duties. 160 They argue that whilst no injuries were sustained by the Applicant on 29 August 2003, the potential implication of the Applicant's conduct are extreme. Indeed they argue, Mr Whittaker who is a team leader in the Ore preparation area and has in excess of 30 years with the Company, viewed the incident as one which had potential to result in the Applicant's death. 161 They argued that following the incident on 29 August 2003, the Company undertook a proper and thorough investigation that afforded the Applicant's procedural fairness. This included; (a) considering the Applicant's version of events and explanation for his conduct. (b) reviewing the Applicant's training record and qualifications, (c) putting the seriousness of the Applicant's conduct to the Applicant, (d) providing the Applicant with a witness in the form of a Union official, and (e) providing the Applicant with a reason for the termination of his employment. 162 They also argue that the Applicant exercised his right under the BHP Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2000 to appeal to the Company's decision to terminate his employment. 163 They say the appeal conference was held on 1 September 2003 and the Applicant was represented by Mr Gorman from the Union and that in fact the Company decided after the appeal the dismissal would sand. They said that Mr Gorman took no exception to the appeal procedure. 164 They say therefore for all those reasons the Company rejects the dismissal of the Applicant was in any way harsh, unreasonable or unjust. It is submitted that the commission should refrain from exercising its discretion to intervene in the Company's decision and should dismiss the application without any relief being granted to the Applicant. 165 They argue also however, if the Commission finds the dismissal was in some way harsh, unreasonable or unjust, then it is submitted for the Company that given the nature of the Applicant's misconduct, re-instatement or re-employment should not be the remedy and that if compensation is to be paid it should be at the lower end. 166 They say there is not excuse for the Applicant's conduct on 29 August 2003. He was an experienced operator who had been trained in the relevant principals and procedures to ensure his safety. And not withstanding this, he disregarded these requirements and exposed himself to danger and risk of injury. The Applicant's length of service and employment record do not mitigate against his actions and failures on 29 August 2003. Conclusions 167 In this case the Commission has given very careful consideration to all of the evidence and submissions of the parties and has had the benefit of a site inspection. 168 The Applicant in these proceedings Mr Lightowler has had some 22 hard years work experience at BHP Steel, and in that time has had an unblemished work record. Nothing in this case has in any way made reference to any previous work related problems. It is a very sound work record. 169 The situation was that on 29 August 2003 the Applicant in conformity with and consistent with previous custom and practices climbed within the safety area of the Belt Press in order to re-adjust the actuator arm. It is improper to say that this was not a custom and practice which had participated for some time. In fact the Company in this case is conveniently did not consider the evidence of Mr Illioski. He clearly indicated what had happened in the past. 170 The fact of the matter was that the process which was involved was one of the most sloppy careless and unimaginative technical systems which existed at steelworks over a period of time. The general situation being that when the actuator arm came off from the Belt operators prodded the with a pipe or a stick. Some times they hung Coca Cola bottles off it and was not unusual to find washers hanging onto the arm. In fact there are a whole series of very unsophisticated processes which were used by the operator in order to keep the actuator arm moving in its correct position and that was one of the reasons why the safety gate was open as it was necessary from time to time to adjust the actuator arm because there were so many problems with it in terms of the Belt Press operating. 171 There is no doubt in my mind that the Applicant did not act in a wilful or determined manner for the purposes of breaking any safety rules. It is also clear that for whatever reason, no Job Safety Analysis or other safety processes, for example a TAKE 2 had ever been utilised in adjusting the actuator arm in the past. The only processes which were used were as already mentioned, hanging of washers, coke bottles, prodding sticks, or if necessary, getting inside and pushing the actuator arm yourself. 172 No serious consideration had been given by the Company to this very serious safety issue and frankly it is not good enough to blame the Applicant for this happening. There was no wilful negligence on behalf of the Applicant in this matter what so ever. 173 I must also refer, before going onto some of the submissions, to the appeal process which took place in respect to the Applicant's termination. On the evidence of Mr Ross and Mr Ross alone the appeal process was flawed. Apart from the fact that no proper appeal process took place in the first place. After the appeal process took place the Appellant Officer conducted an inspection of the site without the Applicant or the Applicant's Union representative even being present, so in fact they had no room or no process by which they could have any input into the thought thinking processes of the Appellant Officer. This in itself is fundamentally, substantially and procedurally incorrect, and on that alone the appeal process should fail. 174 Further to that and again based on the evidence of Mr Ross, it is demonstrated that a pre-determined view had been taken about the Applicant. Reference for example was mentioned by Mr Ross during his evidence as to the Applicant only being a plodder but when seriously cross-examined by the Commission there was no evidence what so ever to in any way suggest this. One can therefore only come to the conclusion that some pre-determined view had been formed by the Respondent in that regard and that in itself is unfair, is harsh and is unjust. 175 The evidence of Mr Illioski clearly had demonstrated without doubt, that procedures despite the Company's submissions, have taken place consistently in the past, and their had been no problems with it. There is no doubt the Applicant and others have now seen including the Company that that process had some serious flaws in it. Indeed the Company have completely altered, the system and have now automated it so that in fact it can not be manually rectified in that way. It has taken this case to allow that to happen. 176 It turn now to some of the submissions. 177 It is in my opinion very difficult to determine exactly what the Applicant is alleged to have done which was so serious that it warranted his summary dismissal. Considering the fact, 1. the Applicant has had some 22 ½ years service with the Company, 2. has no previous problems with work record, and 3. it is substantially clear that a custom and practice, irrespective of whether it was necessarily correct of not it has taken place over a long period of time, and that custom and practice was for one reason and for one reason only, to keep the Belt Press moving in the interest of the Company. Despite the fact that it might not have been proper, there were no misconceived or ill-gotten reasons for the Applicant to do anything other then to do what he thought would be in the best interest of the Company. The fact that he did that and payed a penalty is indeed very, very wrong. 178 It is quite clear from the evidence that the resetting of the Belt Press was carried out when the equipment was live and had been done so for a long, long period of time. No procedure, in terms of changing the actuator arm had ever been documented in relation to isolation procedures, and in the whole history of the steel works a Job Safety Analysis had never been used on such a process, and there is no substantive evidence to demonstrate that in any way shape or form. It is also shown that TEMA employees also performed work within the area of the guarded Belt Press. It is not good enough for the Company to say that TEMA is a contractor and therefore those processes don't apply. The Company is responsible for all persons on site and that is equally known by everyone. 179 The fact of the matter is that the purpose of the guard which was placed there was to preclude access to the area, the fact of the matter is and it is clearly established that no attempt was ever made by the Respondent for the use of the guard as it was necessary to keep the guard open in order that people could access the area because of the problems with the actuator arm. 180 In my view it is clear from the evidence that this particular piece of equipment at the time suffered serious problems, malfunctions, it was not an irregular incident, the Respondent took not steps to obviate the risks to employees concerned. Had that been the case then their would have been no need for the employee to enter the Belt Press area. 181 It is also reasonable to accept that for a Respondent the size of this Company to rely on such secondary procedures in the absence of primary procedures such as an effective guard and effective process in changing the actuator arm was simply not good enough and are in fact quite inexcusable. It is therefore clear that there were no proper steps in process and that the processes which had been used were substantively used for a long period of time and employees rightly or wrongly had seen nothing wrong with this. 182 I am also of the view that he employee in no way took steps to hide what he did and openly explained what had happened. There was no attempt at all to prevent the Company from understanding what had happened, why it had happened and how it had happened. 183 I must agree with the submissions of the Applicant that this employee in the system fell though the cracks and that the Swiss cheese model did fail at all levels. There were gaps everywhere in the system. There is no doubt in my mind that the evidence of the Applicant stands up substantially against the evidence of the Respondent which falls apart in a substantive form in relation to what had happened in the past and how the enquiry was taken and how it was managed in respect to the Applicant. 184 In my view given the work history of the Applicant, which has been over a period of some 22 years, the Applicant in these proceedings was treated in the most harsh, unjust and unreasonable manner. Harsh in the sense that the process which was used, was known and accepted by people and the evidence has shown that. It is therefore not fair to blame this Applicant for what had happened. Unjust in the sense that no due process has been taken to reasonably give the Applicant, not only a chance to have a proper appeal which was conducted improperly but also to take into consideration the matters which have been raised by the Applicant in respect to his defence. It is also unreasonable to expect the Applicant to have raised for example a Job Safety Analysis or a TAKE 2 in respect to this matter when consistently in the history of working on that piece of equipment has shown that it has never happened. 185 It is true to say that this is one case which fell though the cracks and indeed it is a serious matter for the Company to consider that over a long and sustained period of time, they have not applied a proper safety process to these procedures. 186 Under the circumstances therefore I have formed the view that there is no reason in my view with such a consistent long history of employment, why this employee should not be fully re-instated to his former place of work immediately. There are no substantive reasons put up by the Company which would in any way hinder this at all, and indeed the arguments of the Company in respect to this regards have seriously fallen apart. 187 Under the circumstances therefore, the commission makes the following orders; 1. Mr Andrew Lightowler, shall be reinstated to his former position at BlueScope Steel Pty Limited immediately 2. That BlueScope Steel Pty Limited shall pay to Mr Andrew Lightowler all back monies owed to him in respect to his termination of employment from the date of his termination up till the date of his reinstatement, as if he had been working his normal rosters. 188 These orders shall come into and take effect immediately. 189 The Commission so orders and awards. B. W. O'Neill 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.