Industrial Relations Commission of New South Wales CITATION: William Pepper V Hanson Construction Materials Pty Ltd [2008] NSWIRComm 1006 APPLICANT William Pepper PARTIES: RESPONDENT Hanson Construction Materials Pty Ltd FILE NUMBER(S): 1215 of 2007 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - employee worked at quarry site for about 30 years - employee involved in two work accidents whilst driving heavy mobile vehicles over last 18 months of employment - employee transferred to work in Primary Crusher Plant - Respondent transferred employee back to driving mobile equipment - employee had third accident whilst driving heavy mobile vehicle - employee suspended from duty on pay - employee's ability to work elsewhere in the quarry considered by employer - medical opinion sought on employee's ability to work in quarry environment - employee has Meniere's Disease - employee dismissed - employee seeks order from Commission to be placed in Primary Crusher Plant - Commission found dismissal to be harsh as employee able to work in Crusher Plant - re-employment ordered - Commission rejected Respondent's submission that no "position" existed at law - orders for remuneration and continuity of service made. LEGISLATION CITED: Industrial Relations Act 1996 Browne v Dunn (1893) 6 R 67 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 CASES CITED: IGA Distribution Pty Ltd v Moses (No 2) 114 IR 307 D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 HEARING DATES: 17/12/07; 18/12/07. DATE OF JUDGMENT: 19 March 2008 APPLICANT Mr R Reitano, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy, barrister Mr M Diamond, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 19 March 2008 Matter No IRC 1215 of 2007 IN THE MATTER OF William Pepper v Hanson Construction Materials Pty Ltd. Application by William Pepper re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1006 1 This is an application by William Pepper ("the Applicant") for unfair dismissal against Hanson Construction Materials Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation on 2, 10, 17 and 29 August 2007, before McKenna C. On the last date mentioned, the matter was programmed for a Hearing. 3 The Respondent filed a Notice of Motion, with supporting Affidavit, on 1 November 2007 - seeking that the unfair dismissal application be dismissed or, in the alternative that the unfair dismissal application be stayed until such time that the Applicant filed his s90 Undertaking (Not to Proceed with Other Redress Relating to Dismissal). 4 Due to the leave absence of McKenna C, the file was re-allocated to myself, Macdonald C, on 2 November 2007. 5 The Notice of Motion was considered on 9 November. Mr John Murphy, barrister with Mr Mark Diamond, solicitor, appeared for the Respondent and in this instance as the Applicant of the Notice of Motion. Mr Andy Gillespie, Secretary of the Australian Workers' Union, South Coast and Port Kembla Branch, appeared in the proceedings. 6 Arising out of that proceeding, Mr Gillespie undertook to have the Applicant file his s90 Undertaking. This was duly done on 12 November 2007. (A copy of this s90 Undertaking was provided to Mr Murphy during the Hearing. Mr Murphy raised a concern about the wording of that particular s90 Undertaking. Mr Reitano, barrister for the Applicant took on board that concern. Later in the Hearing, a second s90 Undertaking bearing the date: "18.12.07"), was put on the record. 7 The Hearing took place in Wollongong on 17 and 18 December 2007. Mr R Reitano, barrister, appeared for the Applicant and called the following witnesses: · William Pepper - the Applicant · Luke Cassar - Union Delegate & Plant Operator · Jason Blair - Union Delegate & Plant Operator Mr John Murphy, barrister (with Mr Mark Diamond, solicitor) appeared for the Respondent and called the following witnesses: · David Cilento - General Manager · Stephen Butcher - Manager of the quarry · Peter Watson - Risk Manager A fourth witness, David Allen (Principal of Quality Occupational Health) was not required for cross-examination by Mr Reitano. The barristers agreed that no submission about the rule in Browne v Dunn (1893) 6 R 67 would apply in respect of this witness. 8 The Hearing began on 17 December and initially dealt with preliminary matters. There then followed, at the request of Mr Murphy, an inspection of the quarry site at Bass Point Quarry, Shellharbour. In particular, the Commission and the parties, inspected the Control Room in the Primary Crusher. BACKGROUND 9 The Applicant had been engaged as a quarry worker for about the last 30 years at the Bass Point Quarry, Shellharbour. 10 Towards the end of that lengthy employment, the Applicant was involved in three work incidents. 11 The first incident arose when he drove into a dump truck. He was given a verbal warning for this incident. 12 The second incident arose when his work vehicle came into contact with a fuel cart. For this, he received a written warning. He was also taken off the duty of driving heavy mobile equipment and was placed in a cabin as an operator of a primary crusher plant. The Applicant spent some six months in this role. 13 The Applicant was driving an excavator when the third incident arose. His vehicle struck a fuel cart. 14 The Applicant was stood down whilst an investigation into the incident was carried out. The Respondent engaged a Dr D Allen, Specialist in Occupational Medicine who carried out a workplace assessment "…to identify any hazards that my cause a problem for Mr Pepper (the Applicant) given his medical condition." (Ex 4, Annex D) Dr Allen also consulted with the Applicant and was given access to the Applicant's medical records. 15 The Respondent acted upon the assessment provided by Dr Allen. The Respondent terminated the services of the Applicant by letter of 18 July 2007. The letter stated that the initial written advice from Dr Allen was that the Applicant was "not of sufficient medical fitness to safely perform the range of duties associated with any of the positions in the quarry." The termination letter further stated that the workplace assessment showed "that it would be negligent of our company if we placed you in the Control Room position given the range of duties associated with that position." (Ex 1 - Annex 1). The Commission notes that the Control Room position is the operator job located in a cabin in the Primary Crusher plant - there being two such plants. (Ex 1 - Annex 1). FINAL SUBMISSIONS 16 Mr Reitano, barrister, for the Applicant, put the following in final submissions: (a) The Applicant's dismissal was unfair. (b) The Applicant had been employed for some 30 years. (c) The Applicant suffers from Meniere's Disease which, on medical evidence before the Commission, is either in remission or under control. (d) The Respondent wrongly states that the Applicant was responsible for three incidents in the last 18 months. In respect of the second incident, there was a serious omission in following procedures by another employee and this contributed to the incident. As to these incidents, the Respondent had not put the Applicant through refresher training programmes as a means of addressing these incidents. (e) During that last 18 months of employment, the Applicant was placed in the Control Room as an operator of a Primary Crusher Plant, for a period of 6 months, without incident. (f) Dr Allen's medical report considered this Control Room as a possible work station for the Applicant but raised concerns about the same. Dr Allen raised the prospect of an attack of Meniere's Disease whilst working in that environment which contains walkways and ladders. However, there was no evidence that the Applicant suffered such an attack in the six months he worked that duty. There was no evidence that the Applicant's Meniere's Disease had been the subject of some spontaneous attack or occurrence. There was no evidence of such an attack or occurrence over his 30 years of employment. (g) The Control Room work requires, for the most part, that the Applicant sit alone in that Control Room - contra walking on walkways and climbing up and down ladders. Where the Applicant was required to leave the Control Room to perform work inside the Crusher Plant, he could only do so in company with another worker. This was a company procedure, pertaining to a security system, that required two persons to be in attendance around say, conveyor belts. (h) Dr Allen's report said that working in the Control Room itself, should not cause any difficulties to the Applicant. (i) The Respondent had not given proper consideration over the last 18 month's, to accommodating the Applicant's disability or problem. The last time the Applicant received any refresher training was in 2001. (j) As to the evidence that the Applicant did not pay sufficient attention on the job (and hence the possible cause of the three incidents), there was no evidence that, if the Applicant did not pay sufficient attention in the Control Room, that that could give rise to any risk to health or safety of the Applicant or anyone else. (k) There was a lack of consultation and procedural fairness, in the Respondent not providing to the Union a copy of Dr Allen's report - before dismissing the Applicant. The report said that there would be no difficulties with the Applicant working in the Control Room. This is a matter that would have been pursued by the Union in its discussions with the Respondent, for saving the Applicant's employment. (l) The Applicant sought reinstatement into the position he held for 6 months - Control Room of the Primary Crusher Plant - and which position he held without incident. As to the availability of that remedy, the Commission was referred to a Full Bench decision: IGA Distribution Pty Ltd v Moses (No. 2) 114 IR 307. The Applicant also sought continuity of service and lost remuneration. For the Respondent 17 Mr Murphy, barrister, put the following in final submissions: (a) The decision in IGA Distribution v Moses had a number of distinguishing features from the facts of this case and was not therefore precedent setting. (b) The remedy of reinstatement to the position of Control Room Operator was a remedy that could not be granted by the Commission. This was so, as no such position existed. The relevant enterprise agreement (Ex 8) set out four levels of Plant Operator, the highest being level 4 which is the Applicant's level of skill. That level, like the other levels, sets out tasks or duties to be performed. There is no position called Control Room Operator but rather it is a task or duty that a level 3 or 4 Plant Operator can be called upon to perform. (c) The task or duty (wrongly called a position) is not a permanent task or duty performed by one Plant Operator. The evidence showed it is a task or duty that has been performed by employees to assist them in rehabilitation from workplace injuries. (d) The task or duty (wrongly called a position) is not a "position" for the purpose of s89(2) of the Act. (e) The Applicant is asking the Commission to create a position, a one off position with modifications and there are practical questions about those modifications. (f) The Applicant's medical condition raises the question as to his capacity to perform the duties of a level 4 or any other level Plant Operator. There was medical evidence that the Applicant was fit to work in the Control Room and to do light manual work, provided he is away from heavy and moving machinery. This was the medical evidence of Dr Ell, who is the Applicant's treating specialist. However, Mr Murphy advised that Dr Ell did not carry out a workplace assessment, unlike Dr Allen. The weight to be given to Dr Ell's medical evidence is to be less than that given to Dr Allen. (g) The Respondent's officers had given consideration to the Applicant's 30 years of service. The Applicant had not been dismissed forthwith following the third incident. The Applicant was put on leave for some four months, whilst the Respondent considered his future employment, including putting the Applicant into the Control Room. Dr Allen's workplace assessment was that the Applicant could not work in that role because he would need to use walkways, ladders and work in areas where falls or loss of consciousness could cause serious injury. This significant risk could come about in the event of an attack of the Applicant's Meniere's Disease. (h) The report of Dr Allen left the Respondent with no choice other than to terminate the services of the Applicant. (i) It was rejected that there was an issue of lack of training in this case. The Applicant was trained and was competent in his work. The three incidents came about because of the Applicant's inattentiveness, lack of concentration, negligence and recklessness on the job which created a real and serious safety issue. (j) The Applicant's inattentiveness on the job was a reason why he could not be placed in the Control Room within the Crusher Plant. His lack of attentiveness, as shown by the evidence, was a potential for disaster no matter what training systems were put in place. (k) Reinstatement was opposed. Applicant in Reply 18 Mr Reitano, in reply, put the following: (a) There is a "position" in the Control Room to which the Applicant can be reinstated. (b) The Respondent made no real effort to accommodate the Applicant's disability. (c) There was no evidence as to how many times the Applicant might be required in a day to walk along walkways and climb up and down ladders. There was no evidence of the burden to the Respondent in accommodating the Applicant working in the Control Room. (d) If the Applicant was reinstated to work in the Control Room, then he would be away from heavy and moving machinery and this would overcome the concern raised in Dr Ell's view that the Applicant should be in a work environment away from heavy and moving machinery. (e) The classification structure (of four levels) that applies on the quarry site is predicated on the basis of a classification called "Plant Operator". This is a "position". There are different levels contained in the structure but those levels all concern the position of an Operator. CONSIDERATION 19 The Applicant seeks the remedy of reinstatement, without the loss of continuity of employment and seeks payment for lost earnings. 20 The application for the remedy of reinstatement is made pursuant to s89(1) and s89(8) of the Act. That is, an order for reinstatement pursuant to s89(1) is sought but on such terms and conditions as the Commission determines pursuant to s89(8). 21 The Applicant's remedy is expressed this way because the Applicant seeks to be reinstated, not into his "former position" (which term is contained in s89(1)), but to be placed into another position found in the Primary Crusher Plant. This position is that of working in the Control Room. This position does not carry a job title, per se, such as "Control Room Operator". Mr Reitano put to the Commission that this remedial approach was possible, given the Full Bench decision in IGA Distribution v Moses. 22 Mr Murphy, for the Respondent, contended that such a remedy was not capable of being given by the Commission. This was so, given the wording of s89(1) of the Act. That sub-section spoke of reinstatement into a, "former position ", (emphasis added) and the work at the quarry site was not work that was identified (in the relevant industrial instrument) by the term, "position". Rather, Mr Murphy said, the relevant industrial instrument described the work as "skills" or "duties" to be performed. 23 The Commission will now consider the legal issues involved in these competing submissions. Jurisdictional Issue 24 Mr Murphy's submission arises out of the format of the relevant industrial instrument, being the Hanson Bass Point Quarry Collective Agreement 2007 ("the Agreement"). (Ex 8). Clause 6. Wages And Classification Structure, sets out a four level classification structure and, on the Commission's view, is a sills based classification structure. The terms "skills" appears in Levels 2, 3 and 4, the latter being the top level. 25 Level 1, is an entry level and no employee can remain at that level for more than six months from their commencement date. Certain types of work are then listed. Level 2 merely introduces itself this way: "All skills and duties contained in Level1, plus Bob Cat, Wash Plant, Spare Loader Driver etc …" Level 3 says: "An operator at this level shall have all the skills and be able to perform all duties as set out in levels 1 & 2 and shall be able to perform at least four level 3 operations as set out below: Primary Crusher, Secondary Crusher, Ship Loader etc …" Level 4 says: "An operator at this level must have all the skills and be able to perform all the duties set out in Level 1, 2 and 3 . 26 Having considered the classification structure set out above, the Commission rejects Mr Murphy's submission that that structure does not contain a "position". 27 Firstly, the structure does contain a "position" and it is designated as "An operator". This term is specifically listed in Levels 3 and 4. The Applicant was a level 4 designated employee. It reasonably follows that if an employee is specifically designated as "An operator" at those two levels, then an employee is also "An operator" at Level 2 and Level 1 (albeit Entry Level Operator for Level 1!) 28 Secondly, this classification structure has a format that could be said to be modern. Based on the Commission's own industrial relations experience, this structure follows that of other classification structures that have been modernised over the last couple of decades. That is, classification structures underwent a change in format from job title layout to a skills based format. For example. The award formerly know as the "Clerks (State) Award" had a classification structure that named job titles and the applicable rate of pay. Examples of job titles were: Receptionist, Typists, Computer Operator, Book-keeper, Comptometer Operator etc. That same award had its classification structure overhauled by the Minimum Rates Adjustment wage fixing principle. The result was a skills based classification structure whereby an employee was graded, not by their job title, but by the level of skill exercised. Thus, a Computer Operator was no longer designated by one particular grade as in the "Clerks (State) Award," but could be classified into one of a few grades - depending on the employee's level of various computer software skills - under the restructured award now known as the Clerical and Administrative Employees (State) Award. 29 Despite the industrial process by which awards may now have the format of a skills based structure, employees still hold positions within a company and which positions are graded in accordance with their skills. In the present case, the Agreement has a skills based classification structure which also classifies employees with a broad based "position" description or a specific based "position" description. Broad speaking, an employee might be classified in a position as "An operator, Level 1", or "An operator, Level 2" etc. Specifically speaking, an employee might be classified in a position as, for example, "Bob Cat Operator" (from Level 2); or "Primary Crusher Operator" (from Level 3). 30 Thirdly, the letter of dismissal sets out the recent history of the Applicant's employment leading up to the decision, via this letter, to dismiss the Applicant. The letter, itself, refers to "alternate positions" being considered by the Respondent, for the Applicant, in light of his three accidents on the job. There is reference to the "Control Room position" and any "positions" within the quarry, as being considered for the Applicant to perform. This summary dismissal letter, with its references to "positions" is authored by Mr Cilento, Operations Manager. It's difficult to accept Mr Murphy's submission that there is no such concept, as a "position", existing at the quarry site, where his own client does not accept that concept. (The content of the letter, with references to "position(s)" is set out below.) 31 Accordingly, the Commission rejects Mr Murphy's submission on this particular point for the three reasons set out above. 32 Accordingly, the Commission will now consider Mr Reitano's submission that the Applicant be reinstated, not into his "former position", but placed in another position - working in the Control Room of the Plant Crusher. The Commission notes that this Control Room, the ladders/walkways leading to it and the surrounding work layout was the subject of an inspection by the parties and the Commission. 33 The "former position" occupied by the Applicant was, on one view of it, that of a Level 4 Operator. This Operator must have all the skills and be able to carry out all the duties set out in Levels 1, 2 and 3. As a Level 4 Operator, the Applicant had carried out various duties in the quarry site. This included driving heavy equipment. It was whilst driving such equipment that he had his three accidents. 34 In between the second and third accidents, the Respondent took the Applicant away from driving such equipment and placed him in the Control Room located in the Crusher Plant. He stayed in that position for some three months when he was put back onto driving the heavy equipment, at the request of the Union on his behalf. It is this position, working in the Control Room, to which the Applicant seeks re-instatement: pursuant to sections 89(1) and 89(8). Reasons for Dismissal 35 The Applicant was issued with a dismissal letter dated 18 July, 2007, signed by Mr Cilento, Operations Manager. (Ex 1 - Annexure 1) 36 That letter set out the following essential matters: (a) The Applicant had been involved in three accidents at the quarry site. (b) The investigation into the third accident concluded that the Applicant was at "significant fault because of a failure to pay sufficient attention". (c) The Applicant, accordingly, was taken off driving heavy equipment and " alternative positions" within the quarry would be considered. (d) The Applicant "faced substantial medical issues in the context of remaining at Bass Point Quarry". Those issues were not the cause of the accidents … ", but were issues in consideration of alternate positions for the Applicant to perform. (e) The Respondent's occupational physician, Dr David Allen, had been engaged as part of the process of finding alternate positions for the Applicant. (f) Dr Allen had visited the quarry site to determine whether the Applicant could perform the various duties associated with the " Control Room position" . (g) The initial written advice of Dr Allen was that the Applicant was not of sufficient medical fitness to safely perform the range of duties associated with any of the positions in the quarry. (h) The second written advice, after a site visit of 12 July, 2007, was that it would be " negligent" of the company if the Applicant was placed " in the Control Room position given the range of duties associated with that position" . (i) Given the " number of health issues of which you (the Applicant) are very well aware" and the " clear and serious problem with your capacity to concentrate ", then the "reluctant conclusion" was termination of the Applicant's employment. (j) A termination package is then itemised. Reference to the Applicant being on full pay since March 2007 (even though there were no duties to perform) was stated. Further, during that period, the Respondent had " searched for a position" for the Applicant. 37 Mr Reitano, for the Applicant, challenged the findings against the Applicant contained in the termination letter. During proceedings he put to some of the Respondent witnesses, that there was a position in the Control Room for the Applicant to perform. 38 As to the summary dismissal letter, Mr Butcher agreed (under cross-examination), that it set out three reasons for the Applicant's termination of employment: (a) the three work accidents; (b) Dr Allen's Report; and (c) comments made by Associate Professor Ell (the Applicant's treating specialist). (Tr 17/12/07 - p 51, line 45 to p 52, line 17) 39 As to the three work accidents, Mr Reitano conceded that these accidents occurred by fault of the Applicant, but submitted that the second accident was one for which the Applicant was only partly responsible. 40 Mr Reitano said that the Respondent should have taken a mature and measured approach in dealing with the Applicant as to those accidents. For example, he submitted that the Applicant should have been given refresher training. Mr Murphy countered that there was no question of lack of training but rather a lack of concentration, inattentiveness, negligence, recklessness, which created a very real and serious safety issue. 41 It seems to the Commission that the Respondent took a responsible approach in dealing with the Applicant's involvement in those accidents. The Commission now recounts those accidents and the Respondent's approach to the Applicant's work accidents. 42 The first accident arose in February 2006. The Applicant was driving a heavy quarry machine and whilst doing so, his hearing aid fell out and onto the floor of the vehicle. He searched on the floor for his aid, whilst the heavy vehicle was still in motion. The vehicle he was driving, then struck a dump truck. In particular, it was the large metal bucket (used to scoop quarried materials) that struck the dump truck - near the driver's cabin. 43 Mr Butcher deposed it was not so much the $10,000 damage that concerned him but that the bucket came so close to the driver's cabin on the dump truck. The driver's cabin was occupied at the time. Both the Applicant and the cabin occupant underwent a drug and alcohol test that returned negative. The Applicant was given a verbal warning. (Ex 4, paras 8 to 11) 44 The first accident was investigated by Peter Watson, Risk Manager, and classified as a "Serious Near Miss." 45 Mr Butcher stated he wrote to Dr Ell for an opinion in relation to the Applicant's fitness to carry out his duties as a front end loader operator. (Ex 4, Annex A) Dr Ell responded that the Applicant was medically fit to carry out his usual work and that the Applicant would not give permission for transfer of any of his medical information to Mr Butcher. (Ex 4, Annex B) 46 The second accident occurred four months later - June 2006. Again, the Applicant was driving a heavy vehicle when he came into contact with a fuel cart. He did so whilst reversing his loader. He did not see the fuel cart. 47 It is this accident for which Mr Reitano submitted that the Applicant was only partly to blame. That is, the fuel cart driver had not alerted the Applicant of the impending accident. 48 The Applicant and the other employee were drug and alcohol tested and the results were negative. 49 Mr Watson, Risk Manager, investigated the accident and classified it as a "Serious Near Miss." 50 Mr Butcher gave the Applicant a formal warning dated 27 June 2006. (Ex 4, Annex SB C) That letter referred to both accidents and stated that "the main contributing factor was your (the Applicant's) lack of attentiveness while operating mobile equipment." The letter advised that the Applicant would be reassigned to other " duties that do not involve the operation of mobile equipment of any size. " This course of action was being taken because of a duty of care owed to all employees. 51 The Applicant was opposed to a reassignment away from mobile equipment. 52 The Applicant was reassigned to the Primary Crusher "which is not an item of mobile equipment." (Ex 4, para 21) 53 Sometime later, the Applicant was placed back on mobile equipment. The length of time spent in this role is not clear. Mr Butcher's affidavit gives at least 3 months in that role. (Ex 4, para 21) The Applicant deposed he spent about 6 months in that role. (Ex 1, para 11) 54 The Union, on behalf of the Applicant, requested of Mr Butcher that the Applicant be placed back on mobile equipment. Mr Butcher said he had "serious misgivings" about such a request. He agreed to place the Applicant as a "floater" so that the Applicant's use of mobile equipment would be more varied and not as constant. (Ex 4, para 22) 55 The third accident occurred in March 2007. Depending on the time spent in the Crusher Plant, this third accident happened 3 to 6 months after being placed as a "floater". 56 The third accident arose from the Applicant's driving of an excavator. His excavator was adjacent to a fuel cart (car) and had undergone refuelling. He started up the excavator and slewed it off in an anti-clockwise direction, with the result that the excavator struck the fuel cart. Damage was done to the fuel pump assembly and hose. 57 Mr Watson, Risk Manager, investigated the accident. He deposed that the Applicant had moved the excavator before getting the "all clear" signal to do so. (Ex 6, para 16) 58 The Applicant was drug and alcohol tested and the result was negative. There was no injury to the fuel cart operator. 59 The Applicant was suspended, with pay, from duties. The Respondent considered placing the Applicant in Primary Crusher Plant. 60 The Respondent obtained a medical report from Dr Allen who conducted a workplace assessment as to the Applicant working in the Primary Crusher Control Room. Although there was no adverse finding about working in the Control Room per se, the report stated it would be negligent for the Respondent to place the Applicant in the Control Room because of work required to be performed outside of the Control Room but associated with the Control Room work. The report is dated 12 July 2007. (Ex 4, Annex SB D) 61 The Respondent concluded that there were no full time tasks for the Applicant to perform. The Applicant was dismissed by letter of 18 July 2007. 62 Having set out the detail surrounding the three work accidents, the Commission reiterates its view that the Respondent took a responsible approach in dealing with the Applicant's involvement in those accidents. The detail shows that the Applicant had been given warnings about the first two accidents, which raised concerns about the safety of other employees (Serious Near Miss incident classifications) affected by the conduct of the Applicant. The Respondent transferred the Applicant out of that type of heavy vehicle work into a non heavy vehicle environment (the Primary Crusher). The Applicant was returned to heavy vehicle driving at the Union's request and then the third accident occurred. Again, no other employee was injured but the Applicant had not followed correct work procedures to ensure that he had the "All Clear" to move his vehicle. 63 It seems to the Commission that the Respondent had not rushed in as it were to dismiss the Applicant following the first two accidents but had given the Applicant another position in the quarry. 64 The Respondent then gave the Applicant another opportunity at the Union's request to drive heavy mobile vehicles but the Applicant then had his third accident. 65 It seems to the Commission that the Respondent gave the Applicant another chance to perform the type of work he wanted to perform and the Respondent cannot be faulted in that regard. 66 Mr Reitano submitted that the Respondent should have engaged the Applicant in refresher training, on an on-going basis or because of an accident(s), but the Commission rejects this submission. The Commission agrees with the submissions of Mr Murphy that refresher training was not an issue. Rather, the Applicant was an experienced quarry worker (some 30 years) and this experience should have held the Applicant in good stead to perform his work - without three accidents in 18 months. 67 The Commission will now consider Mr Reitano's submission that the Applicant's dismissal was unfair because the Applicant had not been offered the position working in the Primary Crusher Plant. 68 The dismissal letter stated that there were no other full time positions available for the Applicant to perform. The Respondent had considered the work in the Primary Crusher but rejected that on medical advice from Dr Allen. 69 The Applicant also had medical advice from his own specialist, Professor Ell, and which was argued by the Union to support the Applicant's claim that he could work in the Primary Crusher. 70 The views of Dr Allen and Professor Ell were considered by the Respondent, said Mr Butcher, when assessing the Applicant's on-going employment. The assessment was that the Applicant could not work in the Primary Crusher. 71 As to comments made by Associate Professor Ell, it was agreed by Mr Butcher that Dr Ell had issued a letter stating that the Applicant was "fit to work in a control room and to do light manual work provided he is away from heavy and moving machinery." (Ex 1 - Annex 3) 72 Mr Butcher agreed that working in the Control Room, was an area away from heavy and moving machinery. 73 However, he referred to the conveyor belts located nearby the Control Room and within the Crusher Plant, as being heavy and moving machinery. Mr Butcher agreed that Dr Allen's Report did not raise that as a concern. (Dr Allen is a Specialist in Occupational Medicine. His Report is dated 12 July 2007 - see Ex 4, Annex SB "D".) 74 But Dr Allen's Report, Mr Butcher said, raised concerns about walkways and ladders. That is, Dr Allen's concerns went to falls or loss of balance or consciousness by the Applicant, which could cause serious injury. This could come about from episodes of dizziness (Meniere's Disease). Further to that, the Applicant would be working alone. To that, Mr Butcher agreed that Dr Ell (the Applicant's treating specialist) had advised that the Applicant's Meniere's Disease was under control. Mr Butcher further agreed that he had not asked Dr Allen as to what was the prospect of the Applicant suffering from an attack of Meniere's Disease, given that Dr Ell had said that it was under control. (Tr 17/12/07 - p52, line 43 to p54 line 56) 75 As to the working alone factor given above by Mr Butcher, that is largely correct. The Applicant would be working alone in the Control Room. There was no safety issue about that particular environment. From time to time, the employee working in the Control Room might have to come out of the Control Room and take to the walkways and ladders, in order to deal with say, a problem on the conveyor belt. Given that the Meniere's Disease is under control, the Commission can not see how that Disease can be an issue - in the context of the Applicant working alone. 76 Further to that, there was evidence from Mr Butcher that if an employee was required to work around the conveyor belt, there were two safety features at play: a personal locking device for making the conveyor belt inoperable and the conveyors are appropriately guarded, when operating. Mr Butcher also advised that (if the Applicant was working in this position), he could ask a driver to assist him - albeit that that is not the normal practice. (Tr 17/12/07 - p60, line 29 to p61, line 54) 77 There was evidence from Mr Blair that the Control Room employee calls upon a fitter to deal with problems pertaining to the work of fitters. That is, the Control Room employee does not fix all problems occurring outside of the Control Room but within the Primary Crusher Plant. He also said that the Control Room employee can call the truck driver down for problem assistance in the Primary Crusher Plant. Finally, he gave evidence that an employee "might go days without" a problem. (Tr 17/12/07 - p22, line 42 to p23, line 27) Conclusion 78 The Commission has considered the reasons for dismissal contained in the Respondent's letter of termination. The Commission has considered the three accidents caused by the Applicant - noting that Mr Reitano for the Applicant submitted that the Applicant was only partly responsible for the second accident. Be that as it may, the first two accidents were designated as "Serious Near Miss" and raised the serious concern of not just the Applicant's safety towards himself but his fellow employees. Mr Reitano submitted that the Respondent should have given the Applicant re-fresher training in response to his work accidents. However, the Commission accepted the submission by Mr Murphy for the Respondent, that the Applicant had some 30 years experience on the job and re-fresher training was not an issue. 79 The Commission then considered the other issue contained in the dismissal letter, that is, that the Respondent had weighed up placing the Applicant in the Control Room position located in the Primary Crusher Plant. 80 The Respondent came to the conclusion that it could not place the Applicant in this position. The Commission has set out the evidence surrounding this issue and has come to the conclusion that the Applicant could have been placed in this position. 81 This position required working in the Control Room, all alone, and working outside of the Control Room but still within the Primary Crusher Plant - from time to time. 82 The medical evidence of Professor Ell was that the Applicant was fit to work in the Control Room. This then leaves for consideration, the work environment outside of the Control Room - but still within the Primary Crusher Plant. That work environment would involve taking to walkways and ladders and say, tending to some problem with the conveyor belts. 83 Any concern by the Respondent about the Applicant suffering say "dizziness", is countered by the medical evidence that the Applicant's Meniere's Disease is under control and in remission. 84 As to working around the conveyor belts, there was evidence that the Respondent's own medical advice from Dr Allen did not raise in that advice that there was an issue about the Applicant working around conveyor belts. There was also evidence that the conveyor belts were appropriately guarded and there was a padlock isolation procedure for making the conveyor belts inoperable. Further, not all problems arising in the Crusher Plant needed attention by the Control Room employee - but by say, a fitter. As well, a Control Room employee has been accompanied by a truck driver when attending to a problem in the Crusher Plant. Finally, the number of times a Control Room employee needs to leave the Control Room to attend to a problem is only from time to time. 85 The Commission also notes that the Applicant did work in that role for a period of time (some 3 to 6 months), between the second and third accident - and did so without incident. 86 Having considered all of the evidence going to working in the Control Room role, the Commission finds that the Applicant could have been placed in that role. Accordingly, the Commission finds that the dismissal of the Applicant was unfair. Specifically, the Commission finds that the dismissal of the Applicant was harsh: Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. The dismissal was harsh because, for the reasons set out above, the Applicant was able, on the evidence, to perform the duties required of an employee working in the Crusher Plant, including the Control Room. There was evidence that the Applicant had already worked in that role for a period of time without incident. 87 The Commission was asked to order the reinstatement of the Applicant into the role of Control Room Operator. 88 The Commission declines to order "reinstatement" as it is of the view that "reinstatement" cannot be granted given the facts of the case. Thus, the Applicant was carrying out a role that required driving heavy vehicle machinery - at the time of his dismissal. That role would be his "former position" for the purpose of "reinstatement", pursuant to s89(1) of the Act. The Commission is unable to order "reinstatement" given that the Applicant is not seeking to work in his "former position". 89 The Commission does have the power, however, to order "re-employment", pursuant to s89(2), to "another position" - after making a finding that it would be "impracticable" to reinstate the Applicant. The Commission does find that it would be "impracticable" to reinstate the Applicant. The other finding to be made, pursuant to s89(2), is that there is another position that is "available" for the Applicant to perform. The Commission has already found that there is another position that is available - working in the Control Room (with its associated duties outside the Control Room) within the Crusher Plant. For the record, the Commission notes that the term "available" (contained in s89(2)) does not mean "vacant", as in the Commission can only order re-employment to a vacant position. The position need only exist, as opposed to be vacant, in order for the Commission to make an order of re-employment: IGA Distribution Pty Ltd v Moses (No 2) (2002) 114 IR 307 at 315. 90 Accordingly, the Commission will make an order that the Applicant be re-employed into the role of Control Room employee working in the Crusher Plant - and carrying out the other tasks associated with that role in the Crusher Plant. 91 The Commission will also make the appropriate orders for payment of all lost wages and continuity of service. The filed unfair dismissal application advised that the Applicant's gross weekly wage at the time of dismissal was $1082.16. ORDERS The Commission hereby makes the following orders: (1) The Applicant (Mr Pepper) is to be re-employed by the Respondent (Hanson Construction Materials Pty Ltd) into the Control Room position located within the Crusher Plant. (2) The employment of the Applicant is to be taken not to have been broken by his dismissal. (3) The Applicant is to be paid for lost remuneration calculated at $1082.16 gross per week for the period of time from the expiry of the period of time representing notice of termination period to the date of re-employment: s89(3) of the Act. (4) The orders of the Commission shall take effect within twenty-eight days from the date of his 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.