Industrial Relations Commission of New South Wales CITATION: Australian Workers Union, New South Wales v BlueScope Steel Limited [2010] NSWIRComm 1045 APPLICANT Australian Workers Union, New South Wales PARTIES: RESPONDENT BlueScope Steel Limited FILE NUMBER(S): 191 of 2010 CORAM: Macdonald C CATCHWORDS: Dispute Notification by Australian Workers Union - employee given warning for not following a reasonable request and suspended without pay - Union claims that request was unreasonable - defences submitted by Union as to unreasonableness of request - defences rejected by Commission - Held: Commission declined to intervene in Company decision to issue warning and suspend the employee without pay. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 30/06/10; & 01/07/10 DATE OF JUDGMENT: 27 August 2010 APPLICANT Mr D Hancock, Australian Workers Union, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr M Davis, BlueScope Steel Limited DECISION: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 27 August, 2010 Matter No IRC 191 of 2010 Australian Workers Union, New South Wales v BlueScope Steel Limited Notification under section 130 by Australian Workers Union, New South Wales of a dispute with BlueScope Steel Limited re warning DECISION [2010] NSWIRComm 1045 1 The Australian Workers Union, New South Wales ("the Union"), lodged a dispute notification against BlueScope Steel Limited ("the Company"), pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). 2 The dispute notification was lodged on 8 April, 2010. 3 The dispute notification stated that an employee had been given a warning for not following a reasonable request. The Union would argue that the request was unreasonable. 4 The dispute was listed before Grayson DP on 8 April, 2010 in Wollongong. On that day, following a compulsory conference, Grayson DP issued a certificate of attempted conciliation pursuant to section 135 of the Act. The Union exercised its right under section 173 of the Act to have another member of the Commission carry out the arbitration of the matter. 5 The file was then reallocated to myself and was set down for directions on 21 April, 2010. 6 At the Hearing, the Union was represented by Mr D Hancock, union official, who called the following witnesses: Graham Blackmore - employee Laxor Dzajkovski - employee 7 At the Hearing, the Company was represented by Mr M Davis, who called the following witnesses: Cameron Hughes - Strip Co-ordinator, Slab Yard Christopher Murray - Western Port/Export Co-ordinator, Slab Yard Michael White - Technical Co-ordinator Strip & Plate, Slab Yard Andrew Gripton - Slab Yard Manager 8 The Hearing took place on 30 June and 1 July, 2010, in Wollongong. BACKGROUND 9 Mr Graham Blackmore is a crane driver employed by the Company. He works in the Slab Yard. 10 The Slab Yard department inspects, processes and reconditions slab product from the slab making operations and distributes slab product to downstream processing operations or export clients. 11 The Slab Yard receives slabs via rail. The No. 4 crane typically offloads slabs from rakes (five wagons coupled together on which slabs are loaded/off loaded). 12 On 13 March, 2010, Mr Blackmore was on the afternoon shift: 3.00pm to 11.00pm. He was driving the No. 4 crane. 13 Cameron Hughes is employed as a Strip Co-ordinator. His role is to maintain accurate inventory details of slab product as well as managing the movement and placement of slab product. The Co-ordinator organises the work and assigns jobs for the crane and forklift drivers. There is a P.A. system operating between the Co-ordinator and crane driver for work communication. 14 Around 10.30pm, on 13 March, 2010, a loaded rake (five rail wagons with slabs) came into the Slab Yard. This rake needed to be checked as to its slab load. A crane driver can check the rake from a crane by comparing the identity numbers on the slabs against the identity numbers shown on the computer screen in the crane. 15 Mr Hughes used the P.A. system to ask Mr Blackmore to carry out an identity check of the slabs from the newly arrived rake. Mr Blackmore had to travel over the rake anyway, in order to park his crane and call it quits for his shift. 16 There was a very brief conversation between Mr Hughes and Mr Blackmore surrounding this rake check request. Mr Blackmore did not carry out the checking request. The latter parked his crane. 17 Mr Hughes raised the incident with Christopher Murray, Western Port/Export Co-ordinator and John Nieborak, Team Leader. 18 An investigation into this incident was initiated by Andrew Gripton, Slab Yard Manager. 19 Mr Blackmore was spoken to on 14 March by Mick Agim, Team Leader. A formal meeting was held to discuss the incident with Mr Blackmore, on 15 March. 20 Mr Gripton met with Mr Blackmore on 16 and 18 March. On the latter date, Dave Hancock of the Union was present, as was Mark Davis from human resources and Lazo Dzajkovski, union delegate. At the end of the meeting, Mr Blackmore was advised that he had been suspended for the rest of that shift (no pay) and was issued a written warning (his second with the Company). The reason for these penalties was failure to follow a reasonable request from Mr Hughes. 21 The Union lodged a dispute notification and sought through the Hearing process, that the Commission order the Company to reimburse Mr Blackmore for the loss of remuneration for one work shift and to have the written warning rescinded. FINAL SUBMISSIONS For the Union 22 Mr Dave Hancock, union official, put the following in final submissions: (a) The request from Cameron Hughes to Graham Blackmore to check the rake for identity purpose was unreasonable. (b) It was unreasonable because the rake had already been checked (into the inventory system) when it arrived in the Soaking Pit area, which is in the Slab Yard. (c) There was no delay in the rake not being checked by Mr Blackmore as the rake was checked about three quarters of an hour later by the incoming night shift. (d) Mr Hughes gave no explanation to Mr Blackmore as to why the rake should be checked when the practice is not to check rakes from the Soaking Pit area because they have already been checked. (e) Mr Hughes had been the subject of complaints about the way he was organising the work, as Strip-Co-ordinator, and the result was unnecessary extra work for the drivers. There had been no report back by management to employees about these complaints. The failure to report back, escalated issues as Mr Blackmore believed that the complaints fell on deaf ears. As well, the investigation into this incident was possibly one-sided, as Mr Gripton, the Slab Yard Manager, could not recall if he had spoken to the relevant operators in order to obtain both sides of the story to all issues. (f) Mr Blackmore had not communicated with Mr Hughes when concluding his shift (parking the crane), which is usually the case, but this was due to frustration endured by Mr Blackmore over the mistakes from Mr Hughes in organising the work load allocation in the Slab Yard. (g) Mr Blackmore came off his crane and went looking for his Team Leader, Mr Agim, to make a complaint about having to check the rake but Mr Agim had gone home. For the Company 23 Mr Mark Davis, put the following in final submissions: (a) The request by Cameron Hughes to Graham Blackmore was reasonable. (b) It is not the role of crane drivers to dictate operational requirements. (c) The crane driver's role is task specific. It is under the control of the Co-ordinator for the issue of jobs. One of the roles of the Co-ordinator is to maintain accurate inventory levels (of the slab products). (d) The Co-ordinator has the authority to release the crane driver to take his breaks or to end his shift. This is achieved by communication between the Co-ordinator and the crane driver. Mr Blackmore did not communicate with Mr Hughes that he was parking his crane and ending the shift around 10.30pm. His shift finished at 11.00pm. (e) Rakes that have been checked into the Soaking Pits area, need to be rechecked by the Co-ordinator for accurate inventory purposes. (f) The other employee who could have been asked by Cameron Hughes to do the rake check was Mr Dzajkovski (who gave evidence in the proceedings). Mr Dzajkovski is an Assistant Controller but was not around at the time of the incident. (g) Mr Hughes was new to the role (only a few days) and had made mistakes - inadvertently or through lack of familiarity - but he is an experienced young professional. The Slab Yard Manager had considered the issues raised by employees about Mr Hughes' performance but considered these mistakes to be similar to ones made by experienced co-ordinators. (h) The request by Mr Hughes was reasonable. His conversation with Mr Blackmore was very brief and was truncated by Mr Blackmore. (i) The suspension of Mr Blackmore from his shift (without pay) and the issuing of a written warning, was appropriate given all the circumstances. CONSIDERATION 24 The remedy sought by the Union is for Mr Blackmore to be reimbursed for the loss of remuneration sustained by his suspension from work (without pay) for one work shift. As well, the Union sought that the Company's warning issued to Mr Blackmore be rescinded. The basis for the Union's remedies, is that the request made of Mr Blackmore by Mr Hughes, was unreasonable. 25 In considering that claim of unreasonableness, the starting point is the request itself. 26 According to Mr Blackmore, he was asked by Mr Hughes to check the contents of the leading out rake. This request was by the P.A. System. Mr Blackmore deposed that he was at the end of his shift and so he replied to the request, "that I work 8 hour shifts and not 12". He explained that he would not have been able to offload one wagon, let alone the whole rake. (As previously stated, a rake comprises five wagons). Mr Hughes was reported to respond, "That's OK, but I want you to check the rake". Mr Blackmore drove to the landing and parked his crane, with no further communication between the two. (Ex 1, paras 4 & 5) 27 Mr Hughes' account of their communication is consistent with that of Mr Blackmore's: Hughes: "Number 4 can you check the rake? Blackmore: I work 8 hour shifts, not 12. Hughes: That's fine, can you please check the rake?" (Ex. 5, para9) 28 Mr Hughes also deposed that the rake had come in by rail at about 10.30pm. Rake checking can be done from the crane he said, whilst hovered over the rake, and takes typically 2 to 3 minutes to perform. Mr Blackmore had to travel over the rake (to be checked) in order to park his crane at the landing. There was no communication by Mr Blackmore in response to Mr Hughes second request to check the rake. Mr Blackmore parked his crane at the landing. (Ex 5, paras 8 & 10) 29 Before considering the defence raised by Mr Blackmore, the above versions of the communication between Mr Hughes and Mr Blackmore, show that it was very brief and that the communication came to an end through Mr Blackmore not responding to the second (and repeated) question from Mr Hughes to check the rake. 30 The defence raised by Mr Blackmore in the communication with Mr Hughes was that he did not work a 12 hour shift, but only eight. This is correct. The Co-ordinator works a 12 hour shift. Be that as it may, does the response of "an eight hour shift" act as a defence to the request? 31 On the evidence, it does not. Thus, the timing of the request was around 10.30pm. Mr Blackmore still had about 30 minutes of his shift time remaining. The evidence showed that Mr Blackmore did not have to go out of his way (with the crane), in order to check the rake. Indeed, his crane had to travel over the rake to make its way to the landing where he would park his crane to finish his shift. (Hughes: Ex 5,para 9); (Murray: Ex. 6, para 12) 32 Further, the rake checking would require the checking of plate numbers on the slabs (as against numbers shown in the on board computer screen in the crane), and this checking can be done from the crane, which hovers above the slabs for this purpose. This checking process would take typically 2 to 3 minutes. (Hughes: Ex 5, para 8); (Murray: Ex 6, para 11) 33 The witness statements in reply of Mr Blackmore (Ex 2) and Mr Dzajkovski (Ex 4) do not dispute the foregoing evidentiary aspects of the case (especially as to the 2 to 3 minutes checking time duration) - except that Mr Dzajkovski deposes that it was reported to him that the communication happened around 10.40pm. (Ex 3, para 4) This evidence however is third hand as he was not privy to the incident given that he was not around at the time. The Commission accepts that the incident happened around 10.30pm. 34 It was agreed by Mr Blackmore, under cross-examination, that the rake checking would typically take three minutes. (Tr 30/06/10 - p15, line 34 to 42) 35 Given that their communication occurred about thirty minutes before the end of Mr Blackmore's shift and that the request to rake check would take about three minutes, then there was no time barrier as to why Mr Blackmore could not perform the request. 36 That view that the rake checking could have been done in time, before the end of the shift (and therefore the request was reasonable), is not the end of the matter. There were defences raised against the reasonableness of the request. 37 One defence raised by both Union witnesses was that the rake did not need checking, because of its point of origin. That is, the slabs on the rake came from the Soaking Pits area (which is within the Slab Yard), and had been checked and entered into the computer inventory upon initial arrival from outside into the Soaking Pits area. As the slabs had already been checked, then it was not necessary to check them again. (Blackmore: Tr 30/06/10, p 17, line 20 to 44) 38 The defence was put as more than just a view but, as well, that various Co-ordinators had advised it was not necessary to check slabs which had already been checked in the Soaking Pits area, according to Mr Dzajkovski. (Ex 3, para 4); (Tr 30/06/10 - p35, line 32 to p36, line 25) 39 That defence was rejected by the Company's witnesses. 40 Mr Michael White, Technical Co-ordinator deposed that even where a rake is moved within the Slab Yard, then it "is expected to be checked. It is not common to find errors on such rakes however they do occur". (Ex 7, para 17) 41 Mr Andrew Gripton, Slab Yard Manager, deposed that "he did not accept that we don't check rakes coming from soaking pits". However, he then deposed in the same paragraph as follows: "Checking rakes from the soaking pits has been discussed with operators who believe rake checking is not required from the soaking pits". (Ex 8, para 31) This latter quote comes from a paragraph which forms part of Mr Gripton's witness statement. This part is in response to the witness statement of Mr Dzajkovski. As such, this latter quote suggests that Mr Gripton has spoken to, or had someone in authority speak to, the Co-ordinators as it has come to light that there are Co-ordinators who were not making it mandatory to have a rake check for rakes coming out of the Soaking Pits. 42 This above suggestion lends weight to the defence that it was not necessary to check the rake in question because there are Co-ordinators whose practice (albeit no longer allowed) was not to have rakes from Soaking Pits checked. 43 Although that defence has weight, it does not address Mr Blackmore's cutting short the conversation of 10.30pm and does not address, in the Commission's view, the real issue at play: that is, Mr Blackmore is efficient at his job and was not tolerant of Mr Hughes' mistakes as a new Co-ordinator. This issue also raises another defence to the reasonableness of Mr Hughes' request. 44 Mr Hughes' first shift as a Co-ordinator was on Wednesday, 10 March. The incident for which Mr Blackmore was penalised, occurred on Saturday, 13 March. 45 Mr Blackmore had refused a request from Mr Hughes during Mr Hughes' first shift. The cross-examination of Mr Blackmore confirmed that Mr Hughes had made a mistake and Mr Hughes had asked Mr Blackmore to come back to his crane because of that mistake. Mr Blackmore refused to do so. He went on to say that he had an issue with Mr Hughes over this incident, because, according to Mr Blackmore, he was not told what the mistake was that had been made by Mr Hughes. (Tr 30/06/10 - p22, line 45 to p24, line2 ) 46 On the face of it, the above explanation of not being given a reason to explain why a request by Mr Hughes was not carried out, seems petty. 47 As to the 13 March incident, he gave this characterisation about Mr Hughes' request: "….well, here's another stuff up, he doesn't know the job properly, so there was no reason why I should have to check that job". (Tr 30/06/10 - p4, line 19 to 39) That response reflected Mr Blackmore's evidence that Mr Hughes had stuffed up because the request to check the rake was not necessary. 48 As to the other "stuff ups", Mr Blackmore gave evidence about Mr Hughes' performance over the first three days on the job. (Tr 30/06/10 - p2, line 41 to p3, line 33) This transcript extract also shows that Mr Blackmore made a complaint about Mr Hughes' performance prior to the incident for which he was suspended and warned. He also said that there had been no response to this complaint as at the time of this Hearing (June-July, 2010). 49 These "stuff-ups", also represent a defence by Mr Blackmore against the reasonableness of Mr Hughes' request. That is, Mr Blackmore argues that Mr Hughes made mistakes in the performance of his job as a Co-ordinator. Thus, it was put that he was not efficient in the allocation of work and it would result in the inefficient use (more work) of Mr Blackmore's crane. The evidence showed that Mr Blackmore is efficient in his job. 50 The other defence arising out of these "stuff-ups", is that management had not responded to a complaint about Mr Hughes' performance and this lack of a response had a bearing on Mr Blackmore's not responding to Mr Hughes' request to check the rake. 51 As to the mistakes made by Mr Hughes, it was put in final submissions by Mr Davis that any mistakes were either inadvertently made or due to lack of familiarity. And in any event, it was not for Mr Blackmore to be dictating operational requirements. 52 As to the foregoing, there was no evidence that Mr Blackmore was dictating operational requirements. He was not directing Mr Hughes how to do his job as a Co-ordinator. 53 As to the mistakes made, as Mr Blackmore saw it, these boiled down to what he saw as an inefficient use of his crane by Mr Hughes. Thus, Mr Blackmore said he would be directed by Mr Hughes to pick up a slab with his crane and later would be directed by him to pick up another slab nearby. These directions would require two pick-ups, whereas an experienced Co-ordinator (and for that matter, Mr Blackmore), could have foreseen the need to pick up the two slabs and done so in one direction by the Co-ordinator and therefore one only pick-up by the crane driver. 54 It seems to the Commission, that if Mr Hughes had been in the job as a Co-ordinator for some time and was continuing to make what Mr Blackmore described as "stuff-ups", then Mr Blackmore's complaints about the Co-ordinator's efficiency would merit considered managerial analysis - in consultation with the employees on the job. But Mr Hughes had only been in the job as a Co-ordinator for only four days. 55 The other defence raised by Mr Blackmore, was that there had been no response by management to complaints raised about Mr Hughes' alleged "stuff-ups", and this non-response had a bearing on the incident that led to Mr Blackmore's penalties. 56 The evidence showed that there had been an enquiry made into the complaints but there had been no feedback to the floor, prior to the incident for which Mr Blackmore had sustained penalties. Indeed, there had been no feedback even at the time of the two day Hearing. That may have been no more than an oversight by management, but it was unfortunate. 57 Even though there had been no feedback to the complaints, that lack of feedback does not provide a defence for what the Commission views as the real issue at play. That is, Mr Blackmore did not show tolerance for an employee (Mr Hughes) who had just become a part of the team and was in the process of familiarising himself with the operational requirements of the role as Co-ordinator. This familiarising role was confirmed by the evidence of Mr White, Technical Co-ordinator. He deposed that an experienced Co-ordinator worked alongside Mr Hughes when the latter commenced on shift. (Ex 7, para 10) Further to that, it is to be noted that Mr Hughes had only been in the role as Co-ordinator for four days when Mr Blackmore refused to carry out Mr Hughes' request to check a rake. CONCLUSION 58 The Union's case is that the request by Mr Hughes to Mr Blackmore to check the rake was unreasonable. A few defences were put forward in support of the Union's case. 59 The timing of the request (about 10.30pm) is not an issue going to the reasonableness of the request. Mr Blackmore still had a half-hour of work time before his shift expired. Even if there was a custom and practice, for crane drivers to park their crane before the expiry of their shift, in order to allow for say, shower time, then this would not be a defence. That is so, as the request/incident took place with a half-hour of work time to expire but the rake check request would have only taken three minutes. 60 Given that Mr Blackmore was being asked to perform his normal work and well within his rostered time on, then the request, prima facie, was reasonable. 61 There were defences put up as to why the request was unreasonable. 62 It would seem that there was some merit to the defence that it was not necessary to check the rake, as requested, because it had already been checked when it first came into the Soaking Pits. The basis for saying that there seemed to be merit is the evidence that suggested that some Co-ordinators had been spoken to because they had not been checking rakes that came into the area of work in question because they took the view (wrongly as far as the Company was concerned) that the rakes had already been checked and did not need re-checking. 63 Even though there is some merit to this defence of Mr Blackmore relying upon the custom and practice of other Co-ordinators, the defence was only a defence at the time of the incident. That is, when Mr Hughes made the rake check request, then Mr Blackmore should have raised the issue as to the need to do a re-check, given that some Co-ordinators did not require a re-check. But Mr Blackmore, instead, abruptly brought Mr Hughes request communication to an end by intentionally discontinuing the PA communication by Mr Hughes - by no longer responding and leaving Mr Hughes up in the air as to the latter's request. 64 As to the other defences going to the "stuff-ups" by Mr Hughes and the lack of feedback, the Commission has rejected these defences for the reasons given. 65 The real issue at play is Mr Blackmore's lack of tolerance for the new Co-ordinator who was in a familiarising phase (and then only days in the job) with his new role. What was required of Mr Blackmore was tolerance and the basic courtesy of responding to Mr Hughes' requests. If Mr Blackmore had an issue with the requests, then Mr Blackmore should have brought that issue/concern/query to the attention of Mr Hughes - rather than, as he did with the 10.30pm request, leave Mr Hughes up in the air (as to a job to be performed) by abruptly discontinuing their PA system communication. 66 For the reasons set out in this Decision, the Commission declines to intervene in the Company's decision to issue Mr Blackmore with a warning and suspend him from shift without pay. 67 The Commission now closes this file by issuing this Decision. A Macdonald 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.