Industrial Relations Commission of New South Wales CITATION: Ristovski v. BlueScope Steel (AIS) Pty Limited [2009] NSWIRComm 1041 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 304 and 305 of 2009 CORAM: Connor C CATCHWORDS: dismissal of employee - steelworks - referral agreement of an industrial dispute - claim of unfair dismissal of employee - allegation of misconduct - claim of an employee offering a bribe or blackmailing a supplier - onus of proof - no grounds for intervention in decision to terminate the services of an employee - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 CASES CITED: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Queensland Sick Pay Case (1972) AILR Rep.414 State of New South Wales c. Commonwealth of Australia (2006) 156 IR 1 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 HEARING DATES: 27/07/2009, 28/07/2009, 29/07/2009, 04/08/2009 DATE OF JUDGMENT: 19 August 2009 APPLICANT Andrew Gorman Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Dallas Pearce BlueScope Steel (AIS) Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 19 August, 2009 Matter Nos IRC 304 and 305 of 2009 Chris Ristovski and BlueScope Steel (AIS) Pty Limited Application by the Australian Workers Union under S.84 of the Industrial Relations Act, 1996 Notification of an industrial dispute by the Australian Workers Union under S.130 of the Industrial Relations Act, 1996 Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel (AIS) Pty Limited DECISION [2009] NSWIRComm 1041 Preliminary 1 Mr Chris Ristovski was employed as a materials handling operator by BlueScope Steel (AIS) Pty Limited in the warehouse for the Basic Oxygen Steelmaking furnace area [the BOS]. His services were terminated on Wednesday, 18 February, 2009 after 18 years of employment. Mr Ristovski is a member of the Australian Workers Union which on Tuesday, 10 March, 2009 lodged an application on his behalf pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his reinstatement in employment. 2 The matter was allocated initially to McKenna C whose attempts at conciliation on Thursday, 12 March, 2009 and Thursday, 26 March, 2009 were unsuccessful. Following an application by BlueScope Steel under S.173, the file was reallocated to me for arbitration. I set the matter down for mention and programming on Tuesday, 21 April, 2009 and Monday, 29 June, 2009 and the matter proceeded to hearing on Monday, 27 July, 2009, Tuesday, 28 July, 2009, Wednesday, 29 July, 2009 and Tuesday, 4 August, 2009. The hearing on Monday, 27 July, 2009 was accompanied by an inspection of the worksite where Mr Ristovski was employed by BlueScope Steel. The proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. 3 Mr Gorman represented Mr Ristovski in the hearing. He called him to give evidence. He also called Ms Menka Kostovska, a colleague of Mr Ristovski in the BOS, as a witness in the hearing. Ms Kostovska gave her evidence with the aid of a Macedonian interpreter. Mr Pearce represented BlueScope Steel in the hearing. He called three members of BlueScope Steel management as witnesses in the hearing: Mr Christopher Page, the BOS furnance manager, Mr Robert Sawczuk, a team leader, and Mr Brenden Mannix, the senior human resources advisor for the iron and slab division of BlueScope Steel. He also called as a witness Mr Ian Burn, the commercial manager for a contractor (Weston Aluminium Pty Limited) engaged by BlueScope Steel in the supply of product from its plant at Kurri Kurri to the Port Kembla steelworks. 4 To compliment the Part 6 application for Mr Ristovski, the AWU has also lodged a notification of a dispute under S.130 (and McKenna C has lodged a certificate of attempted conciliation in accordance with S.135 with respect to it, lodging it in the prescribed manner). That S.130 notification was also allocated to me. The S.130 notification confirms the jurisdiction of the State Commission to deal with the matter. Since the 2005 Federal Workplace Relations Amendment (Work Choices) Act, the State unfair dismissal jurisdiction has been proscribed for employees of trading corporations within the meaning of S.51(xx) of the Commonwealth Constitution, ie BlueScope Steel in this hearing [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. Nevertheless, by a 2006 amendment to the State IR Act [S.146A] a member of the State Commission may be empowered to exercise any functions conferred upon that member by the parties to an industrial dispute if such a matter is referred to the State Commission. BlueScope Steel and the trade unions representing its employees, including the AWU, have adopted a protocol by which such a S.146A referral agreement is provided for individual industrial disputes. In this hearing a S.146A referral agreement has been provided to me in the following brief terms: "...The alleged unfair dismissal of Chris Ristovski..." 5 Whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)] in my opinion, it still lacks the necessary ingredient, on its own, to make it an industrial dispute which must mean a number of employees acting collectively through their trade union. The S.130 notification which the AWU has also lodged gives it that character, however. It is a combination of Ss.130, 146A and Part 6 which establish the jurisdiction for this matter to proceed before me. S.130 establishes the industrial dispute: S.146A gives me the jurisdiction to deal with the matter as an industrial dispute and Part 6 provides the possible remedies for Mr Ristovski (and ensures by the operation of S.90 that he is limited to that remedy alone) - see, for instance, my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 3430 and 3487 of 2006 in which I explored this question of jurisdiction in more detail (at pp.3 to 5). The Allegation 6 The raw materials warehouse for the BOS where Mr Ristovski was employed receives aluminium pucks, ie small conical pieces of aluminium, which are delivered from suppliers by truck and weighed on a weighbridge, so that a proper costing for the deliveries may ultimately be made. The product is then dumped beside the weighbridge for later use in steelmaking. On Wednesday, 28 January, 2009 a load of aluminium pucks delivered from Weston Aluminium was received in the BOS and Mr Ristovski noticed that the load was contaminated with three large slabs of metal which he regarded as scrap but which I understand still had an estimated value in the vicinity of $2,000.00. 7 The customary procedure would have been for Mr Ristovski to inform Mr Sawczuk about the contaminated load but he was absent on annual leave at the time - as was Mr Page. However, according to Mr Sawczuk, there were other senior employees in the BOS at the time to whom Mr Ristovski could have, and should have, reported the matter - Mr Jeff Ring and Mr Hagen Kreusser, BOS foremen, or Mr Andrew Jacobs, a technical co-ordinator, for instance. He chose not to do so, claiming that he was "...the only person that knows what's going on in that area...." Instead, he telephoned Weston Aluminium on his mobile telephone. He spoke initially to a person he believed to be a secretary (but who, in fact, was the weighbridge operator for Weston Aluminium) who conveyed the message to the deputy plant manager of the Kurri Kurri plant of Weston Aluminium. 8 Mr Ristovski recorded in the written statement which formed the basis of his evidence that: "....I did this because I am the one authorized to sign for all the material that comes in and out of the place and basically take on the role of leading hand. On several other occasions I had rung the shift supervisor from the BOS regarding issues and they don't know anything about BOS raw material..." And he claimed that when Mr Sawczuk was absent from work he had never actually been told who was in charge of his operations and that it was to him that Mr Sawczuk turned concerning any issues that arose in the BOS warehouse. 9 Mr Gorman pointed out that, in fact, no formal procedure had been set out for occasions when contaminate comes into the BOS warehouse in loads from suppliers, but it seems to me that it was generally understood what was the appropriate procedure in such cases, ie that it be reported to a senior representative of BOS management. Mr Ristovski took a different view, recording in one of his written statements in reply: "....I know what goes on in my department. I am the person people contact if they need to ask any question about the material. If Mr Sawczuk has any question he rings me because I am the person that loads and unloads the material in my department. I also sign all dockets and basically take charge of the raw material. I am not classed as a leading hand because the company would have to pay me extra if I am classed as a leading hand. I do the job at the same rate and I really don't mind doing it..." But the contaminate was a serious matter and not something that he should have addressed on his own. Mr Ristovski was clearly exceeding his authority in subsequently telephoning a supplier. And I believe he knew it. 10 Mr Burn was approached by his deputy plant manager to inform him that Weston Aluminium had been contacted by a person purporting to represent BlueScope Steel concerning an alleged non-conformance incident, ie a failure to provide product of an acceptable standard. Mr Burn was given a mobile telephone number for him to call in response to the matter. He considered that to be unusual since his customary contacts with BlueScope Steel over supply issues were not over mobile telephones. His usual contact on supply issues was Mr Darren Dickerson, a supply specialist for BlueScope Steel's procurement department. Mr Burn claims that ordinarily a meeting is held with a BlueScope Steel employee over any supply issues on the first day of each month to reconcile consignment tonnages, discuss future consumption levels and determine pricing and market conditions related to the manufacture of aluminium. 11 Mr Burn telephoned that BlueScope Steel employee on the mobile telephone number he was given. The employee identified himself as "Chris" and whom Mr Burn now believes was Mr Ristovski. There is, in fact, no doubt that it was Mr Ristovski on the telephone. The evidence is clear on that point: Mr Ristovski had admitted the telephone conversation and subsequent telephone conversations with Mr Burn. And, after all, it was Mr Ristovski's mobile telephone on which the conversation with Mr Burn took place. 12 Mr Ristovski informed Mr Burn that three large pieces of what Mr Ristovski described as scrap had been included in the load. Mr Burn acknowledged that as a serious non-conformance issue and claimed that he asked Mr Ristovski: "Can you please isolate the material and I will come to the site so as to investigate and inspect the material." Mr Ristovski refuted that Mr Burn had spoken in those terms. He claimed that Mr Burn had actually asked him: "Can you get rid of it?" Which would be a very odd thing for him to say, in my opinion. To "...get rid of..." something is, of course, to dispose of it. The three slabs of metal in the load may have been inappropriate with the supply of aluminium pucks but they still represented valuable metal and not scrap and not something to dispose of quite so readily. But Mr Burn conceded in his evidence that at that stage he did not know what the foreign matter actually was. Nevertheless, Mr Burn denied that he had ever asked Mr Ristovski to "...get rid of..." the material. In any event, as Mr Pearce suggested in his submissions, if Mr Burn had asked Mr Ristovski to "...get rid of..." the metal contaminate, it would have been Mr Ristovski's duty to report the matter immediately to BlueScope Steel management. He did not do so. 13 Mr Ristovski claimed that he replied to Mr Burn: "No, I can't. There's two tonne of material there and I have to report it." Mr Burn denies that Mr Ristovski had spoken in those terms. According to Mr Burn, Mr Ristovski had instead commented with words to the following effect: "A lot of contracts have been terminated due to the current financial crisis, and such a serious breach of quality is just the excuse BlueScope Steel would need to cancel Weston product and I do not want to see Weston Aluminium lose the contract." Mr Burn saw that as a threat. It was clearly a hint that Weston Aluminium's contract with BlueScope Steel was in jeopardy over the contaminate. Mr Burn indicated in his evidence that at this time Weston Aluminium was the only supplier of aluminium pucks to BlueScope Steel. I understand that, in fact, there is another supplier in Victoria but BlueScope Steel does not use it. Also apparently Mr Ristovski was aware of a New Zealand supplier of aluminium pucks. In any event, Mr Burn replied: "Weston Aluminium takes such a breach of non-conformance very seriously and we do not want to lose the contract." 14 Mr Ristovski admits in his written statement that his reply then was: " Mate , you need to look after me, and I will look after you." Mr Burn claims in his evidence that Mr Ristovski did not use the word "mate" in that conversation. In his evidence Mr Ristovski at first denied that he used the word "mate" in that context and later admitted that he may have done so. Not much turns on whether that word "mate" was used in his conversation with Mr Burn, except to say that he was initially refuting his own version of the incident contained in his written statement, albeit on a very minor point. 15 I have found Mr Ristovski's evidence to be full of minor inconsistencies of that nature and, in my opinion, some major ones. For instance, in his written statements he referred to himself as a de facto leading hand but in his evidence he refuted that he was a leading hand. On the one hand, Mr Ristovski has consistently asserted that he is the expert for the operations of the raw material warehouse for the BOS - "...I know what goes on in my department..." - and it is for that reason that he felt it was his duty to telephone Mr Burn about the contaminate in the supply of aluminium pucks. But, on the other hand, in his evidence, when confronted with comments in cross-examination by Mr Pearce about the product or the warehouse operations, he described himself as only an operator in the warehouse and not a person who has knowledge of such things. 16 Mr Ristovski also explained what he meant by those words - "...You need to look after me and I will look after you..." - in his written statement, viz: "...If the drivers think that there may be something in the load that should not be there, they should let me know in advance so that I don't miss anything which could cause serious problems in the system further down the line... All I meant was that we needed to work as a team. Even though the company has stated after this incident that I would not be responsible for problems that occurred further in the process if contaminated material was to make it to the BOS, I honestly thought at the time that I would be responsible and disciplined if I allowed this material to go further than BOS raw materials. I also stated to the representative of Weston Aluminium that I was worried that this may happen again because it has happened on other occasions and I did not want anyone to get into trouble. I said that the way BlueScope Steel was at the moment, I did not want to see Weston Aluminium lose a contract..." 17 If contaminated material did get through to the BOS it may cause an interruption to the caster and a blockage of the chute - not a significant concern, according to Mr Jacobs who assisted in the subsequent internal investigation of the incident (but who was not called as a witness in this hearing). Moreover, Mr Jacobs confirmed in those investigations, that if the contaminate did get through to the BOS the operators would not be held accountable for it as it was outside their control. (Mr Jacobs's comments were admitted into evidence through the written statement of Mr Mannix in that respect.) 18 Frankly, to my mind, Mr Ristovski's explanation simply does not stack up at all. The expression he admits that he gave Mr Burn - "...You look after me and I will look after you..." - customarily mean one thing - that Mr Burn was being bribed and/or blackmailed in some manner. No money was actually mentioned in the conversation, but the meaning of those words is still clear enough to me. Mr Ristovski's explanation for using those words is far from convincing, in my opinion. In any event, Mr Burn took the view that Mr Ristovski was suggesting a bribe. He indicated in his written statement: "....At this point in the conversation it was clear to me why Mr Ristovski was talking about losing contracts and what was implied by his words 'look after'. Mr Ristovski was attempting to blackmail me. I was stunned. I was so shocked that I was not quite sure how to react to this person. I have never dealt with such a request from a BlueScope Steel employee..." Mr Burn told Mr Ristovski he would come down to the BlueScope Steel site on the following day and discuss the matter further. But he did not do so. 19 Mr Burn claims that Mr Ristovski contacted him again on Thursday, 29 January, 2009 leaving a message on his message bank. Mr Burn telephoned Mr Ristovski on his mobile telephone and informed him that he had been held up but that he still wanted to see the material in question. Mr Burn asked Mr Ristovski if he could come down on Friday, 30 January, 2009 to see the material. Mr Burn claimed that Mr Ristovski told him: "I will be away on business in Brisbane." Mr Ristovski recorded in his written statement: "...The purpose of my call was to try and make sure that the representative came in before I went on sick leave the following week to have an operation. I was also rostered on Friday, 30 January, 2009 and I needed to be there when he came to see the material as I am the only person who knows what is going on in that area..." 20 Mr Burn claimed that he told Mr Ristovski: "Our quality control department has already lodged a non-conformance action against our load with BlueScope Steel." That had not actually occurred as the Weston Aluminium officer charged with the responsibility of the performance of the necessary work was, in fact, absent on annual leave but Mr Burn claimed that he "...wanted to give Mr Ristovski the opportunity to report the incident, as he should have done...". Instead, Mr Burn asserted that Mr Ristovski replied: "No one has contacted me about it and if there was a problem they would have already contacted me. Don't worry, I have the material safely hidden away. Just look after me and I will look after you." 21 Mr Burn claimed that he responded: "I think it would be in your best interest to simply lodge a non-conformance action against the load with BlueScope Steel." Mr Ristovski apparently did not take the hint and he replied: "Don't worry. BlueScope Steel trusts me if I say there was no problem, then they won't worry." And added: "BlueScope Steel had been looking at a product from New Zealand that was cheaper but I said the product was too big to handle so they didn't continue to investigate that option. Just look after me and I will look after you." Mr Burn claimed, non unnaturally, that he was dumbfounded at what he saw as Mr Ristovski's brazen attempt to bribe and/or blackmail him and Weston Aluminium. I must confess, so am I. Mr Burn informed Mr Ristovski that he would arrange to meet him shortly. 22 Mr Ristovski claims that he received another telephone call from Mr Burn on Friday, 30 January, 2009. He remembered that telephone call from Mr Burn because he was at the airport at the time it was made - on "sick leave"! In his written statement Mr Ristovski commented: "On Friday, 30 January, 2009 I rang in sick as Mr Sawczuk had forgotten to change my roster. That day I received a call from the representative of Weston Aluminium, saying that he had reported the contaminated material to BlueScope Steel. I said: 'That's good, but you didn't have to report it.' I said this because I had already organized with Ms Kostovska to let Mr Sawczuk know. We had a short conversation during which I also stated again: 'You need to look after me and I need to look after you - we need to work as a team so we don't have any issues.'..." Mr Burn does not recall that telephone call. Ms Kostovska did not report the contaminate and in her evidence indicated that she did not believe that she was required to do so. Her involvement in the incident was very remote and, as I indicate later in this decision, apparently her involvement in the incident was not raised by Mr Ristovski until much later in the disciplinary interview with Mr Page (on Monday, 16 February, 2009). 23 Mr Ristovski was absent on sick leave and was absent from work from Monday, 2 February, 2009 to Thursday, 12 February, 2009 during some of which time he was admitted to hospital. As he indicated in his written statement, he had also taken sick leave from Friday, 30 January, 2009 and had contacted Mr Ring to inform him that he would be absent on that day (suggesting to me, among other things, that he was aware of a more senior person in authority in BlueScope Steel to whom he should contact on any issue, including any problems with supplies). 24 Mr Burn was no doubt correct in his recollection that Mr Ristovski had told him that he would be travelling to Brisbane, albeit not apparently on any business that involved BlueScope Steel. Travel records provided in evidence in this hearing confirm his travel to Brisbane, whilst ostensibly on sick leave. Furthermore, Mr Sawczuk recalled in his written statement that: "....Mr Ristovski approached me approximately one month prior to this and asked me if he could swap his roster day from Monday, 26 January, 2009 to Friday, 30 January, 2009. Monday, 26 January, 2009 was the Australia Day public holiday. I was very clear that this was not possible as swapping shifts on public holidays is against company policy. I recall my conversation with Mr Ristovski in regards to this matter that Mr Ristovski was making the request because he informed me he had a 'gig' to attend in Brisbane on Friday, 30 January, 2009..." I understand that Mr Ristovski plays the saxophone in a band. 25 Mr Sawczuk claimed that he informed Mr Ristovski at the time that he would not change his rostered day off: "No way! I am not going to swap your roster day to a public holiday where I have to pay you for 20 hours work when you will work for 8 hours. It's against company policy." Mr Sawczuk therefore emphatically rejects Mr Ristovski's assertion that he had simply forgot to change his roster. And Mr Page had formed the view, accurately in my opinion, that Mr Ristovski had made the second telephone call to Mr Burn because he "...was very keen to arrange a meeting with him before Mr Sawczuk returned from annual leave...". 26 Of course, it should go without saying that sick leave is available only to employees who are actually sick and not otherwise [the Queensland Sick Pay Case (1972) AILR Rep.414]. It appears that Mr Ristovski was using sick leave for Friday, 30 January, 2009 for private reasons which had nothing to do with his subsequent operation. He was certainly not ill enough to prevent him from travelling by air to Brisbane. But in any event, that issue is a sideshow to the main allegations which led to Mr Ristovski's dismissal. 27 Nevertheless, Mr Ristovski's evidence on this point shows so many inconsistencies that it throws considerable suspicions on much of his other evidence in this hearing. Firstly, Mr Ristovski claimed in his written statement that Mr Sawczuk "...had forgotten to change (his) roster..." but earlier in that written statement he conceded that he "...was also rostered on..." that day and, ultimately, called in "sick", suggesting to me that he actually accepted that he was, in fact, required to work on that day. And, in any event, he travelled to Brisbane on that day, ultimately conceding that he had actually taken a "sickie" for his "gig". (for which Mr Gorman explained he did not seek payment and was not paid: I would not expect BlueScope Steel to pay him). 28 In the meantime, Mr Burn had referred the matter to senior management of Weston Aluminium. He had not contacted BlueScope Steel management over the matter at that time. He should have done so and admits that, with hindsight, he should not have kept up the telephone conversations with Mr Ristovski. Ultimately, Weston Aluminium management brought the matter to the attention of BlueScope Steel management and a report from Mr Burn over the incident was provided to it. The Investigation 29 On Tuesday, 3 February, 2009 Mr Mannix was informed of the incident by senior BlueScope Steel management and he was directed to carry out an investigation. He spoke to Mr Sawczuk and established to his satisfaction that Mr Ristovski was the employee identified by Mr Burn as "Chris". Mr Mannix asked Mr Sawczuk if he knew any place where the contaminate could be hidden and Mr Sawczuk was directed to discretely inspect the site, looking for it. Mr Sawczuk subsequently found what he believed to be the contaminate material on a pallet beside a shed in a part of the yard used principally for copper scrap. He photographed the pallet and Mr Burn, having been subsequently shown the photograph, confirmed it to have been product from Weston Aluminium. 30 Mr Mannix indicated in his written statement: "....I considered it was becoming more likely that the person known to me only as 'Chris' was, in fact, Mr Ristovski. I came to this belief as Mr Ristovski was absent on Friday, 30 January, 2009 and had told Mr Swaczuk previously he wanted the time off to go to Brisbane. I also considered that the mobile number would allow us to link Mr Ristovski to the person known as 'Chris' in the statement provided by Mr Burn..." 31 Mr Mannix arranged an interview with Mr Ristovski on Thursday, 5 February, 2009 in the AWU's offices. Ultimately, after discussing the matter with the AWU representative at the meeting (Mr Gorman), Mr Ristovski outlined his position in some detail. Mr Mannix recalled his explanation as follows: "We received a load of aluminium pucks and on a number of occasions we do receive debris in the load. I am in the habit of going through the load and picking up the bits of debris that are in the load. This is because the grab crane picks up the pieces in very large amounts at a time and it is not possible to see what is in the load once it has been picked up. These big pieces can cause damage to the de-gasser if they get caught up in the grab before I can get them out. If they get caught up and cause damage then I will have to go for a drug and alcohol test and I'll be in trouble. On this day Mr Sawczuk was away when I discovered the big pieces on the load. I contacted Weston Aluminium by phone and said to them if you know something is on the load then please let me know beforehand so I have warning that it needs to be pulled out. I told the person at Weston Aluminium that I have had problems before when a large piece was not removed before it went on for further processing in the plant and all I want is a phone call so that I can come and fix the issue. I want a phone call from Weston Aluminium to let me know. I told the person at Weston Aluminium that if they had any queries with the load at all to please call me. The comment: 'I'll look after you if you look after me.' was Weston Aluminium calling me and letting me know if there is anything wrong with the load so that plant equipment doesn't get damaged. I received a call from Weston Aluminium and he wanted to see if I could get rid of the contaminant. I told him that it was impossible and that I was going to have to report it." Later Mr Ristovski said: "I am very embarrassed by all this. I think the Weston Aluminium person wanted me to hide that material and that this is his way of getting back at me because I refused to do this." 32 As the inspection of the site on Monday, 27 July, 2009 confirmed, the contaminate was, in fact, placed behind a shed in a part of the plant which Mr Pearce submitted was not often used and not where it could be readily noticed. It was still there on the date of the inspection. It has not needed to be moved since Wednesday, 28 February, 2009 when Mr Ristovski put it there, proving to my satisfaction that it had been placed well out of the way by Mr Ristovski. 33 And those comments of Mr Ristovski raise more questions in my mind than they answer. If the foreign material got into the degasser and caused damage, which Mr Page indicated in his evidence was only remotely possible, it seems highly unlikely to me that Mr Ristovski would be required to take a drug and alcohol test over it. And why would he be so concerned if he was required to do so? Furthermore, it does not make sense to expect that Weston Aluminium would contact Mr Ristovski when there was foreign matter in the load. How would Weston Aluminium know that there was such foreign matter beforehand? That would occur only by a mistake at their end. There certainly would be no way Weston Aluminium would purposely let out a contaminated load. Contaminate would only come to light at the BOS warehouse. And if Mr Ristovski had, in fact, told Mr Burn that he intended to report the contaminate, he never did so. 34 Mr Mannix asked Mr Ristovski: "Do you understand that asking for money or some kind of payment or favour in exchange for putting away or concealing something from the company is wrong?" And Mr Ristovski allegedly replied with words to the following effect: "Of course! I would have to be stupid to do something like this. It is digging your own grave. I think that the Weston Aluminium person wanted me to get rid of it." Mr Mannix concluded his investigations. He considered that the allegation against Mr Ristovski had been substantiated. So do I. The Dismissal 35 When Mr Page returned from annual leave on Monday, 16 February, 2009 a meeting with him and Mr Mannix was arranged on that day. At that time Mr Ristovski indicated that, in fact, he had a witness - Ms Kostovska - who could to some extent confirm his claims. He had apparently forgotten to tell Mr Mannix about Ms Kostovska at the earlier meetings. Mr Ristovski indicated in his evidence in this hearing that he had been confused at the earlier interview with Mr Mannix and had not raised the issue then because of it. But it seems that Ms Kostovska was an afterthought on his part - and her evidence has not helped him much anyway, in my opinion. 36 Mr Ristovski claimed that at the time that the load of aluminium pucks had been delivered he had shown Ms Kostovska the contaminate and informed her (in Macedonian) that they would have to let Mr Sawczuk know about it upon his return from annual leave. Ms Kostovska confirmed that conversation in her evidence given with the aid of a Macedonian interpreter. Her written statement in this hearing recalled that conversation with Mr Ristovski. She asked Mr Ristovski: "What do you think now?" She claimed that Mr Ristovski replied: " We have to report this to Mr Sawczuk when he gets back from holiday." 37 But in her evidence she indicated that she believed that it was Mr Ristovski who had the responsibility to report the contaminate - as it was. She did not believe it was her job to do so. The issue was not reported to Mr Sawczuk or anyone else until it was raised by Weston Aluminium with BlueScope Steel management. Mr Sawczuk only found the load after going looking for it in an area which he did not believe was customary to place such contaminate. It was well out of the way. On the inspection, Mr Page claimed that contaminate should have been placed in bins beside the weighbridge in the warehouse and Mr Sawczuk confirmed that fact in his evidence in this hearing. The implication clearly was that Mr Ristovski was attempting to hide the contaminate from view. 38 Therefore, Mr Page believed that there were grounds to terminate Mr Ristovski's services and he dismissed him. Mr Page commented in his written statement that: "...Mr Ristovski was terminated because, on the balance of probability, I believed the allegation made by Mr Burn of Weston Aluminium over the evidence provided by Mr Ristovski. In fact, I gave Mr Ristovski's version of events no credibility whatsoever. The allegation was of a most serious nature. The allegations are that he was attempting to extort a bribe and this is an illegal act and represents serious misconduct. During the course of the investigation Mr Ristovski was evasive. He had clearly been dishonest about both the second phone call to Mr Burn. I also consider that he had been dishonest about his absenteeism on Friday, 30 January, 2009. Mr Burn provided the company with a written statement which has remained consistent throughout the investigation. Mr Burn has no plausible motive to lie about the situation. By Mr Ristovski's own admission he stated at the beginning of the investigation that he would be '...digging his own grave...' if he was found to have done what was alleged. In my view, this demonstrates that Mr Ristovski knew that the action was serious and, if substantiated, would lead to serious disciplinary action. This action was also an attempt to defraud Weston Aluminium and, as such, violated one of the company's cardinal rules. On Wednesday, 17 October, 2007 I had gone over the cardinal rules with Mr Ristovski and explained to him that a breach of any of these rules would result in his dismissal..." 39 In fact, Mr Ristovski has had a very colourful employment record with BlueScope Steel and that record clearly influenced Mr Page in his decision over the matter. Mr Pearce referred to Mr Ristovski's employment record, accurately enough in my opinion, as "...breathtakingly poor...". Mr Page recorded in his written statement that: "...although Mr Ristovski was employed by the company for approximately 18 years, his history has been punctuated with several serious incidents, many of which, in my opinion, warranted dismissal in their own right. His length of service, his employment record and this incident are so serious that the fact he is a relatively long serving employee doesn't alter the decision to terminate his employment..." 40 In early 1998, for instance, Mr Ristovski had an altercation with a male security officer at the security checkpoint at one of the entrances to the Port Kembla steelworks. Mr Ristovski did not have a permit for his vehicle to enter the steelworks site and the security officer had not permitted Mr Ristovski to drive his vehicle on site. He waved Mr Ristovski into an area beside the checkpoint and took particulars of the vehicle and the driver. Mr Ristovski got out of his vehicle, followed the security officer into his security cabin, abused him verbally, swore, placed his hands on his shoulder and pushed him. Ultimately, Mr Ristovski re-entered his vehicle and attempted to run through the gate and enter the steelworks, almost hitting the security officer in the process. 41 In late 2001 Mr Ristovski was late and unprepared for an assessment for his crane driver's ticket. It was reported by the officer who was conducting the assessment that Mr Ristovski had indicated that he was not really interested in accreditation "...as his real job was running a business external to his job with the company and that this job was simply his 'beer money'...". The assessor claimed that he received a tirade of abuse from Mr Ristovski concerning the operations of the BOS. 42 In late 2003 there was another altercation with a female security officer when she refused to let a colleague of Mr Ristovski enter the site in his vehicle without a permit to do so. Mr Ristovski approached her and, using abusive language and describing her as "cocky", spoke in a manner which the security officer perceived to be a threat, viz: "We will fix things so that your attitude will change and things won't turn out as you would like them to. I am only doing this for your own good." The security office called a code purple (used for emergencies when a security officer believes she is in distress). 43 In late 2007 Mr Ristovski received a final warning for intimidating behaviour against a fellow employee, which remained on his record for six months. A disagreement had arisen between Mr Ristovski and the other employee which escalated to the point where the other employee believed he was being intimidated. Mr Ristovski was alleged to have said to the other employee: "What do you want? A tonne of shit? Yeah, I'll get you a tonne of shit." And pointing and shaking his finger at him whilst he was talking to Mr Swaczuk. In full view of Mr Sawczuk and the other employee, Mr Ristovski then held up an imaginary rifle, mimed lining it up at the other employee and pulling the trigger, raising his arms as if from the force of the imaginary shot. Mr Ristovski had claimed that the other employee had put his hand on his "arse", an allegation which the other employee denied and to which Mr Ristovski responded: "Yes you did, you're a fucking poofter." Mr Page accepted the version of the other employee. 44 There have also been numerous safety breaches by Mr Ristovski: driving a forklift on two occasions without a seat belt fastened, poor timekeeping, driving in an area of the plant where he lacked authorisation and overtaking a vehicle in an unsafe manner in that area, working on site without his safety glasses. He has received a written warning in late 2003 over his absenteeism. In the middle of 2004 he received a traffic infringement for reckless driving on site - crossing a pedestrian crossing without slowing down whilst a pedestrian was on the crossing - and a further traffic infringement shortly thereafter - for attempting to exit a site via a gate that he was not authorised to use. In the middle of 2006 he had discussions with Mr Sawczuk over his working overtime without permission. Conclusion 45 As Mr Gorman submitted in this hearing, the onus of proof rests on Mr Pearce in this hearing to establish that Mr Ristovski is guilty of the misconduct alleged against him, on the balance of probability [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84, Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464 and Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 at pp.6 and 7]. Mr Gorman highlighted the fact that at no time did Mr Ristovski ever suggest any money in the conversations he had with Mr Burn. But, even if no money was ever mentioned by Mr Ristovski, the implications from his conversations with Mr Burn is clear enough, in my opinion. I am satisfied that the allegation against Mr Ristovski has been substantiated on the basis of the civil standard - the balance of probability - referred to in Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3), Wang v. Crestell Industries Pty Limited and Four Sons Pty Limited v. Limsiripothong. 46 I have also to say that I regard BlueScope Steel management at the BOS warehouse to have been extraordinarily patient with Mr Ristovski, particularly in view of his employment history with it. But their patience must have limits and clearly Mr Ristovski has finally exceeded those limits with this current allegation which is, after all, a very serious matter - serious enough to justify Mr Ristovski's dismissal on its own. And as Mr Page indicated in his written statement, some of those earlier incidents involving Mr Ristovski would have themselves justified his dismissal. He has been skating on pretty thin ice for some time and should have appreciated that fact. 47 Notwithstanding Mr Gorman's defence of Mr Ristovski, I found him not to be a credible witness. His evidence is a mass of contradictions and I am satisfied that much of it is nothing more than pure fabrication on his part. The tangled web he has woven over this incident has finally unravelled in this hearing. He may have lacked the authority he claimed to have possessed with supplies to the BOS warehouse but he has certainly irreparably damaged any trust and confidence that BlueScope Steel might have otherwise had with him. 48 I therefore see no justification for my intervention on his behalf in this hearing and I dismiss the AWU claims made on his behalf. 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.