Industrial Relations Commission of New South Wales CITATION: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Transfield Services (Australia) Pty Limited [2005] NSWIRComm 1125 APPLICANT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PARTIES: RESPONDENT Transfield Services (Australia) Pty Limited FILE NUMBER(S): 3609 of 2005 CORAM: Connor C termination of employment - aggressive behaviour - assault - unsafe act - industrial action - jurisdiction in reinstatement in proceedings for an industrial dispute - employee reinstated on certain conditions CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Kiama Coachlines Case (unreported) Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 CASES CITED: Pacific Power v. Crump (1993) 48 IR 296 Penrith Quarry Case (unreported) Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 HEARING DATES: 08/03/2005 DATE OF JUDGMENT: 08/11/2005 APPLICANT Aron Neilson Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES: RESPONDENT Peter Punch Carroll and O'Dea Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 11 August, 2005 Matter No IRC 3609 of 2005 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Transfield Services (Australia) Pty Limited Dispute notification under S.130 of the Industrial Relations Act, 1996 re dismissal of an employee DECISION [2005] NSWIRComm 1125 Background 1 Notifications with respect to an industrial dispute had been lodged under S.130 of the 1996 Industrial Relations Act for and on behalf of Transfield Services (Australia) Pty Limited and K and R Fabrication. The dispute with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the Australian Workers Union and the Electrical Trades Union of Australia concerned an indefinite strike commencing on Tuesday, 12 July, 2005 by maintenance employees working for Transfield and K and R Fabrication in the Port Kembla steelworks under contract to BlueScope Steel. The strike was in protest at the pending dismissal of Mr Christopher Meehan, a fitter employed by Transfield (and a member of the AFMEPKIU) who, following an argument, tipped the contents of a plastic container of oil over Mr Jack Clarke, a fitter employed of K and R Fabrication (and also a member of the AFMEPKIU). 2 Mr Meehan was stood down on Friday, 8 July, 2005 and dismissed on Monday, 11 July, 2005. Transfield regarded Mr Meehan's conduct as a clear breach of its house rules under which the maintenance staff at the steelworks are engaged. In particular, those house rules regard as serious misconduct: "...intimidating or assaulting other employees, customers or clients on company property or when attending company functions..." And when Mr Meehan commenced employment with Transfield in late 2001 he signed a contract of employment which, among other things, recognised that fighting or the wilful infringement of safety rules were grounds for his dismissal. 3 The two S.130 notifications were allocated to me and they were the subject of a conferences before me on Tuesday, 12 July, 2005 (in the Commission's premises at 90 Crown Street, Wollongong). I was informed that the Transfield and K and R Fabrication employees were to hold a meeting on Wednesday, 13 July, 2005. I recommended in the strongest possible terms that the employees resume work following that meeting and I directed the officials of the AFMEPKIU, the ETU and the AWU to inform their members at the meeting of that recommendation. There was a resumption of work. 4 I also issued the certificate of attempted conciliation required by S.135 with respect to the S.130 notification by Transfield and lodged it in the prescribed manner, programming the issue in dispute - the dismissal of Mr Meehan - for arbitration on Tuesday, 2 August, 2005 (also in Wollongong). The AFMEPKIU intended to seek Mr Meehan's reinstatement in employment in those arbitrated proceedings. In the meantime, I recommended that the dismissed employee be restored to the payroll. The status of his employment was to be retained for the present time as terminated but he was to be regarded as on unpaid suspension until the matter was resolved before me. 5 A further complication intruded on Tuesday, 2 August, 2005. On Monday, 1 August, 2005 another S.130 notification of an industrial dispute was lodged for and on behalf of Transfield in the light of a foreshadowed stop work meeting by maintenance staff - members of AWU and ETU as well as the AFMEPKIU - employed on the BlueScope Steel maintenance contract which had apparently been called by trade union delegates. That fresh S.130 notification was also allocated to me and I set it down for a conference in the morning of Tuesday, 2 August, 2005. The proposed stop work meeting was to be convened in the afternoon of Tuesday, 2 August, 2005. 6 One of the reasons for the stop work meeting was to receive a report on the outcome of proceedings concerning the AFMEPKIU claim for Mr Meehan's reinstatement in employment. No member of the Commission will be prepared to deal with the arbitration of an issue in dispute unless assurances are given that the employees are prepared to resolve issues in dispute in an orderly manner. I was very disappointed that the employees would believe that a stop work meeting would in some way act positively to advance the argument that was being mounted before me on behalf of Mr Meehan. Instead of dealing with the matter that was scheduled - the claim for his reinstatement - fruitless time was spent attempting to address the issue of the stop work meeting. The industrial action by the employees did nothing but place an unnecessary barrier in the way for me to address the claim made on Mr Meehan's behalf by the AFMEPKIU. However, I sought, and received, an assurance from the AFMEPKIU, the AWU and the ETU that the stop work meeting would be cancelled, permitting me to then proceed to a hearing of the AFMEPKIU claim for the reinstatement of Mr Meehan. 7 Mr Neilson represented the AFMEPKIU (and Mr Meehan) in the proceedings, calling him to give evidence in the hearing. He also called Mr Clarke as a witness in the hearing. Mr Punch represented Transfield in the proceedings. He also called two witnesses: Mr Owen Bradford, an engineer and acting maintenance manager for Transfield, and Mr Gregory Buck, a maintenance supervisor. Mr Mr Neilson also announced his appearance for the ETU as an intervenor and Mr Gillespie of the AWU intervened in the proceedings as well. The Issue 8 Mr Meehan is regarded as an experienced member of the Transfield maintenance team for the steelworks coke ovens where he has to date worked but the evidence before me leads me to the conclusion that he has some problems in controlling his temper when confronted with situations he regards as in any way stressful. Mr Meehan claims that the maintenance crews are understaffed and he has responded to his work load and the allocation of work generally with outbursts which, according to Mr Buck, Mr Meehan has himself described as "...going thermo-nuclear...". Whilst Mr Meehan has not received any formal warnings over his aggressive conduct or been directed to counselling over it, Mr Buck indicated that he has held "...man-to-man discussions..." with him and informed him that his only obligation was to perform the work allocated to him to the best of his ability and not get side-tracked with what appears to be irrelevant matters. 9 The circumstances surrounding the incident which led to Mr Meehan's dismissal are not really in dispute. At midday on Thursday, 7 July, 2005 Mr Meehan and Mr Clarke had a disagreement over the manner in which Mr Clarke was performing work in replacing a feed chute scraper cylinder. Because the work area in question was some six feet off the ground, the job safety analysis [JAS] called for the use of a low scaffold. Because there were delays in isolation of the unit to be replaced and the scaffolders were performing other work, the team decided to modify the JAS by accessing the job via a step ladder - which has been deemed accepted as a safe method of work. Mr Clarke was therefore working in a confined space off the ground but he did not believe that it was possible to fall from the position in which he was working. 10 Mr Bradford, who subsequently investigated the matter for a report on the safety of the work in question, was also satisfied that Mr Clarke was working safely. However, Mr Meehan believed that Mr Clarke was not working in a safe manner. He raised his concern with him and informed him that he should work in a different manner (which Mr Bradford also believed was acceptable on safety grounds). Mr Clarke did not respond, taking the view that he was close to finishing the job and he did not want to be distracted. Mr Meehan began to argue with Mr Clarke, admitting that he became angry and frustrated. He grabbed a bucket of hydraulic oil and threw the contents at Mr Clarke, hitting him on his left side. 11 Mr Clarke asked: "What did you do that for?" And Mr Meehan said: "Are you listening to me now." Mr Clarke picked up his tools, took off his isolation lock and walked away. He told Mr Meehan that he was leaving the site. The job was close to completion but Mr Clarke informed his supervisor that he did not want to go back to the job "...for a little while..." and he took a shower. 12 Mr Clarke subsequently suggested to his supervisor that he could be placed elsewhere in the steelworks to allow matters to cool down. He indicated in his evidence in this hearing that he had no real animosity towards Mr Meehan and seems to be suggesting that in some respects the incident was really his fault because he was ignoring Mr Meehan. Mr Clarke claimed that if he had been in Mr Meehan's position he would have probably acted in the same way. But on any account, Mr Meehan's behaviour was not acceptable. It was Mr Meehan who was clearly in the wrong and he has admitted that to be the case in his evidence in this hearing. 13 Mr Clarke indicated he did not want the matter to go any further but Transfield management nevertheless believed - correctly in my view - that they had a responsibility not to let the matter rest. For one thing, there is the common law duty of employers to provide a safe system of work, complimented by S.8(1) of the 2000 Occupational Health and Safety Act, viz: "Every employer shall ensure the health, safety and welfare at work of all his employees." An employer must treat seriously any incident where an employee acts in an aggressive manner with another employee. It is, in fact, ironic that the argument Mr Meehan had with Mr Clarke over his allegedly unsafe work practice on the day - which was apparently perfectly safe - ended up with Mr Meehan throwing oil over Mr Clarke - which clearly was an unsafe act. Whether or not Mr Clarke does not wish for the matter to go any further or for Mr Meehan to be disciplined in any manner, this genie cannot now be put back in the bottle. 14 Mr Clarke has now indicated in his evidence he would have no difficulty in working with Mr Meehan again (and I note that they sat next to one another during the hearing and there appeared to be no friction between them at all). But again events have overtaken Mr Clarke's approach to the issue. Mr Buck has indicated that he would not welcome Mr Meehan's resumption of work in the coke oven area where he formerly worked, taking the view that the work was being performed "quieter" now and he is reluctant for a return of the difficulties he experienced when Mr Meehan worked under his supervision. Jurisdiction 15 As I indicated in my unreported decision of Tuesday, 17 September, 1996 in the Penrith Quarry Case [Matter No. IRC 5118 of 1996 at pp.2 and 3] it is preferable in the majority of cases where there is a dismissal of an employee for it to be heard under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90], which is regarded as a discrete provision for claims of unfair dismissal or, to use the words of the Full Bench of the former State Industrial Court (Fisher CJ, Cullen and Peterson JJ) in Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 at p.49: "...a code regarding the relief available in relation to unfair dismissals..." But in S.130 proceedings, by virtue of S.137(1)(b), on an application by a trade union on behalf of a dismissed member, I also hold jurisdiction to: "...order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute..." 16 There are certain limits to my jurisdiction under S.137(1)(b) and it is for that reason that Part 6 is usually the preferable course for a dismissed employee to pursue. For one thing, in Part 6 there are additional remedies - for lost wages between the date of dismissal and the date of reinstatement [S.89(3)] or monetary compensation in lieu of reinstatement [S.89(5)] - not available under S.137(1)(b). But there is still a separate right for a trade union under S.137(1)(b) to pursue a claim for reinstatement on behalf of a dismissed member distinct from the Part 6 jurisdiction. 17 There is nothing novel in such an approach. The historical role and principle task of State industrial tribunals has always been the resolution of industrial disputes in an orderly manner and the dismissal of a trade union member is a fertile field for industrial disruption - as it has been in this case. The mechanism provided through the dispute resolution procedure of S.130 proceedings provides a speedier, and perhaps less formal manner, to address issues which lead to industrial disruption. It is in everybody's interest that such matters be fast tracked to avoid any further unnecessary industrial action and the Commission will always attempt to accommodate such matters. Conclusion 18 Mr Punch has argued in his submissions that there were no grounds for the reinstatement of Mr Meehan and that I should not intervene in support of him. He has conceded that Mr Meehan has not received any formal warnings concerning his aggressive conduct at work but Mr Meehan must accept that his behaviour was unacceptable without the need for warnings. It should not require formal warnings to remind any employee that he should not lose his temper. Alternatively, Mr Punch submitted that, if I rejected his submission in that respect, any re-engagement of Mr Meehan by Transfield should be a re-employment, rather than a reinstatement, on probation and in some other area of the Transfield operations away from the coke ovens where he has to date worked. 19 Mr Neilson acknowledged that Mr Meehan's conduct was wrong and Mr Meehan understood that to be the case. Nevertheless, Mr Neilson has argued that the termination of Mr Meehan's services was an excessive penalty for him and he has sought his reinstatement in employment. The AFMEPKIU recognises the restrictions for any back pay when it proceeded under S.137(1)(b) rather than through Part 6. It therefore accepts that until any decision on my part to reinstate Mr Meehan from his current period of suspension, he will not receive any wages - sufficient penalty to Mr Meehan in Mr Neilson's opinion. Mr Neilson has also informed me in his submissions that Mr Meehan has indicated his preparedness to take counselling for anger management and to work in some other area of the steelworks if I considered that to be appropriate. 20 In assessing whether to dismiss an employee, an employer should take into account all the circumstances surrounding the incident which prompted it to dismiss the employee - and, in my view, any undertakings an employee is prepared to make for his return to work. Watson J of the former State Industrial Commission commented in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 at p.233) that: "…in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal..." Often, bearing in mind all the circumstances, the dismissal of an offending employee may be regarded as excessive, and some other penalty, ie suspension for a period of time, may have been sufficient: see for instance the unreported decision of the Full Bench of the Commission (Hungerford and Boland JJ and Neal C) on Thursday, 23 March, 2000 in the Kiama Coachlines Case [Matter No. IRC 4936 of 1999]. I believe that this is one such case. As the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v. Crump (1993) 48 IR 296 commented in that connection (at p.302) the proper test was whether or not: "…the ultimate sanction of termination of employment was too severe a penalty…" 21 In this particular case, whilst Mr Meehan's conduct deserves censure, I do not believe that it provided grounds for his dismissal. I have been influenced in my decision by Mr Meehan's preparedness to commence anger management counselling and work in another area of the Transfield operations in the steelworks. I am satisfied that Mr Meehan now appears to be contrite over his outburst of temper. He has indicated in the written statement which formed the basis of his evidence in this hearing that he is sorry for his actions and has apologised to Mr Clarke. 22 But Mr Meehan must now appreciate that he will not be entitled to expect any further assistance from this Commission if there is any repetition of his unsatisfactory conduct in the future. I do not propose to place Mr Meehan on probation as Mr Punch has suggested but he must accept that his continued employment with Transfield is conditional upon a different and less aggressive attitude at work by him. 23 On that basis, I propose to order Mr Meehan to be reinstated in employment with Transfield effective from Thursday, 11 August, 2005. His reinstatement will be conditional upon him taking anger management counselling and shall be to such other area of the steelworks as Transfield directs. He shall not be entitled to any remuneration for the period of his suspension up to the date of his reinstatement but for all other purposes his employment will be deemed to have been uninterrupted. 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.