Industrial Relations Commission of New South Wales CITATION: Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 3430 and 3487 of 2006 CORAM: Connor C CATCHWORDS: termination of employment - claim of unfair dismissal - unsafe work practice - occupational health and safety concerns - temporary nature of reinstatement due to imminent plant closure - dismissed employee reinstated Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial Relations Act 1991 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 CCH Australia Limited v. Bowen (1998) 79 IR 206 Doyle v. Ford's Tyres - unreported Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 Little v. Commissioner of Police (No.2) 112 IR 212 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 CASES CITED: Nestoroski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1140 Oswald v. New South Wales Police Services (1999) 90 IR 42 Pacific Power v. Crump (1993) 48 IR 296 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Roberts v. Mona Vale District Hospital (1975) 2 NSWLR 132 South Sydney City Council v. Federated Municipal and Shire Council Employees Union (1989) 28 IR 363 Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74 Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 HEARING DATES: 26/03/2007, 28/03/2007, 02/04/2007 DATE OF JUDGMENT: 11 April 2007 APPLICANT Dave Hancock Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Aaron Dearden Blake, Dawson, Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 11 April, 2007 Matter Nos IRC 3430 and 3487 of 2006 Borce Jovanovski 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 under S.130 of the Industrial Relations Act, 1996 re termination of employment 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 [2007] NSWIRComm 1019 Introduction 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers' Union has lodged a notification of a dispute with BlueScope Steel (AIS) Pty Limited. The S.130 notification describes the industrial dispute as a: "...crane driver at the tin mill threatened with termination for not using a harness in the correct way. The union argues that the employee had no training and was shown the correct procedure by the foreman only after the incident..." The crane driver is Mr Borce (Bobby) Jovanovski who has been employed in the Port Kembla steelworks for 28 years. Since 1995 Mr Jovanovski has worked as a crane driver, at first at Springhill and from 2002 in the annealing and temper rolling area of the tin mill. 2 The S.130 notification came before me for a conference on Monday, 6 November, 2006. Those proceedings, and all subsequent proceedings, were convened in the Commission's premises at 90 Crown Street, Wollongong. At that time I was informed that following a meeting between BlueScope Steel management and the AWU which had only just concluded, the employee's services had been terminated. Mr Jovanovski had a right to appeal that decision. In that light, I adjourned the proceedings for further mention and programming on Monday, 13 November, 2006, directing the parties into further discussions concerning the matter. 3 On Monday, 13 November, 2006 I was informed that Mr Jovanovski's dismissal stood. The AWU also lodged an application on his behalf under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his reinstatement. I set the Part 6 application down for a preliminary hearing, together with the original S.130 notification, to programme the matter for arbitration. With respect to the initial S.130 notification, I have issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner. 4 By virtue of S.146A(2): "A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement." Agreement has been reached for BlueScope Steel's operations in Port Kembla for a protocol for individual S.146A(2) referral agreements to be completed and in this case BlueScope Steel and the AWU have completed such a referral agreement for the resolution of the following matter for arbitration: "The dispute concerns the alleged unfair dismissal of Mr Borce Jovanovski." I have made directions for the filing and serving of evidentiary material and mentioned the matter for further programming on Monday, 19 February, 2007, referring the matter to Registry staff for allocation for arbitration. The matter was set down for hearing on Monday, 26 March, 2007, Wednesday, 28 March, 2007 and Monday, 2 April, 2007. 5 The hearing on Monday, 26 March, 2007 was accompanied by an inspection of the tin mill where Mr Jovanovski worked. Mr Hancock represented Mr Jovanovski in the hearing, calling him to give evidence. He also called Mr Paul Wells, an operator, and Mr Rade Veljanoski, a crane driver (now in the BOS). Mr Dearden represented BlueScope Steel in the hearing. He called five witnesses: Mr Pat Russell, the annealing and temper rolling manager, Mr Peter Larsen, the process co-coordinator for the cold rolling section, Mr Alan Schofield, who is employed by a contractor to act as the shift operations manager, Mr Trevor Naylor, a process controller for the annealing and temper rolling area, and Mr Darren Hall, the safety and environment manager. Jurisdiction 6 The jurisdiction for me to arbitrate the AWU claim on behalf of Mr Jovanovski in this hearing is now dependent upon the S.146A referral agreement which has been completed by the AWU and BlueScope Steel. Referral agreements under S.146A require there to be a dispute between the employer and the trade union representing its employees, ie an industrial dispute. The question remains whether the dismissal of an individual employee constitutes, on its own, an industrial dispute in that respect. I do not believe that it is. What, in fact, gives it the character of an industrial dispute is the involvement of the AWU and its notification of the matter under S.130. 7 Formerly, under the 1940 Industrial Arbitration Act, unfair dismissal claims could only be heard as part of the industrial dispute resolution procedure before the Commission [S.25A], ie they were heard as industrial disputes and individual employees unrepresented by a trade union were therefore excluded from the jurisdiction [Roberts v. Mona Vale District Hospital (1975) 2 NSWLR 132]. By an amendment to the 1940 Act in 1991 (and subsequently under the 1991 Industrial Relations Act and the 1996 Act which replaced it), individual access by dismissed employees became permissible and unfair dismissal claims were heard as a separate code of jurisdiction - now contained in Part 6 [Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 at p.49]. 8 But, whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)], as I indicated in my unreported decision of Wednesday, 27 September, 2006 in Nestoroski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 2929 of 2006 at pp.2 and 3], to my mind it lacks the necessary ingredient to make it an industrial dispute which ordinarily denotes a number of employees acting collectively through their trade union. That must mean that Part 6 applications per se are not industrial disputes and, to my mind, are not therefore something which, on their own, can be covered by a S.146A(2) referral agreement. 9 It is for that reason that the S.130 notification of an industrial dispute is required and why the AWU commenced this process concerning Mr Jovanovski's dismissal under S.130. Alternatively, a trade union may seek a dispute order of reinstatement for a dismissed member under S.137(1)(b) which gives jurisdiction to a member of the Commission to: "…reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute…" 10 In fact, I have before me three separate initiating processes all of which, in combination, I believe remain necessary to proceed to arbitration, viz: (i) a S.146A(2) referral agreement signed by both the AWU and BlueScope Steel which authorises me to resolve - by arbitration, if necessary - an industrial dispute over Mr Jovanovski's dismissal - now, as far as I am concerned, the initiating legislative provision and the ultimate source of my jurisdiction to arbitrate this matter; (ii) a Part 6 application lodged by the AWU on behalf of Mr Jovanovski, seeking his reinstatement in employment to his former crane driver position with BlueScope Steel (which is accompanied by an undertaking pursuant to S.90 that Mr Jovanovski has not, and does not intend to, pursue any other claim under either State or, more importantly, Federal legislation); and (iii) a 130 notification lodged by the AWU which, among other things, by virtue of the S.146A(2) referral agreement, now empowers me, if necessary, to order the reinstatement in employment of Mr Jovanovski as a crane driver [S.137(1)(b)]. No doubt in due course some form could be developed by the Commission as an initiating document combining S.146A(2), Part 6 and S.130 proceedings. In the meantime, I consider that it is necessary for there to, in fact, be the three initiating instruments. The Evidence 11 At approximately 2.00pm on Wednesday, 1 November, 2006 Mr Jovanovski was directed by Mr Schofield to move the temper mill crane [F758] to the isolation bay for a rope change. The crane was positioned at the exit end of the No.1 temper mill so that maintenance work could be performed on it. According to Mr Schofield, it is a dark area. Access to and from the crane at that site was by way of a runway. Mr Russell described the site, and the access to and from it, in a written statement, viz: "...Upon exiting the crane cabin Mr Jovanovski would have had to walk out of the crane cabin landing that is fixed to the crane. At this point there is a handrail. Mr Jovanovski would then have had to have climbed up to the first upper section of the crane by ladder, then climb up to the second upper section of the crane by ladder, then down to the crane runway by ladder. The crane runway has been measured to be approximately 80 centimetres from the edge of the runway to the closest pylon and approximately 15 metres above the factory floor. There is no handrail to stop someone from falling off the edge which is why there is a safety requirement for employees to wear a harness and attach the lanyard to themselves and the static safety line. Whenever someone is exposed to an unprotected edge (ie no handrail) and it is more than 1.8 metres off the ground, the correct safety procedure is to attach a lanyard to yourself and the static line..." 12 Mr Schofield confirmed that a harness is required to be worn by crane drivers for all overhead cranes in the tin mill. Mr Jovanovski claimed in his evidence that he attempted to put his harness on, got out of the cabin of the crane and climbed on top of the crane and down onto the western crane runway which extends for approximately 25 metres (according to Mr Jovanovski in his written statement) or approximately 70 metres (according to Mr Schofield) along the side of the building and to stairs at the end. As Mr Russell described it, there is a safety wire which runs the length of the platform and around which the harness is attached by a lanyard as employees move along it, There is also a twin lanyard where there is some block to the wire and it becomes necessary for the employee to disconnect the lanyard for some reason and reconnect. 13 Mr Jovanovski claimed in his evidence that, when he exited the crane, he had attempted to seek some assistance over the two-way radio but had received no response. Whilst he was wearing his harness, he did not attach it to the safety wire with a lanyard. He had left the lanyard in the cabin of the crane. Mr Jovanovski claimed that he held onto the safety wire as he walked, however. He asserted that to be his practice in the past. Mr Schofield and Mr Naylor observed Mr Jovanovski walking along the runway without attaching the lanyard from the line of his harness to the safety wire. Mr Schofield recorded in the written statement which formed the basis of his evidence: "...I was in disbelief. I thought I hadn't seen it right. I thought he must have had a lanyard attached to the safety wire and that I just couldn't see it. I was amazed. I couldn't believe that he was wearing a harness but did not have a lanyard attached to the static safety line. The areas where Mr Jovanovski dismounted from the crane is very dark. There is approximately 55 centimetres between the crane ladder and the building structure. When the incident occurred there were three roof-lights out on the western side of the building, making the dismount area even darker. Additionally, there are no windows or openings in that part of the building. The area is also a maintenance bay, so there is the possibility of oil and waste on the walkway due to oil overfills on the wheel bearings by maintenance personnel. This could lead to a slip and so is a potential hazard. There is also the possibility of residue from maintenance work such as nuts and bolts or pieces of steel, which could also be a hazard for a person walking along the walkway in the darkened state.." 14 As Mr Jovanovski walked down the stairs at the end of the platform, he was confronted by Mr Schofield and Mr Joe Quintana, another crane driver. Mr Schofield asked him why he had not harnessed himself properly onto the safety wire with the lanyard. According to Mr Schofield, Mr Jovanovski spoke aggressively to him, viz: "I haven't been fucking trained in this shit." Mr Jovanovski denied that he spoke in those terms, although he informed Mr Schofield that he had never been shown how to put his harness on and that he had "...done the best he could...". Mr Quintana apparently laughed and said: "You have the harness on back to front." Or upside down: Mr Schofield recalled Mr Quintana telling Mr Jovanovski that he had the harness on upside down, rather than back to front. When in his subsequent investigation of the matter Mr Russell spoke to Mr Quintana, he asserted that Mr Quintana had originally indicated to him that Mr Jovanovski had his harness on upside down rather than back to front. Later Mr Quintana expressed the view that, in fact, he believed Mr Jovanovski had his harness on correctly - but without the lanyard. That was also Mr Schofield's recollection in his evidence. 15 Mr Schofield asked Mr Jovanovski if he needed training on the proper way to put on his harness because, if so, he would arrange it. He then directed Mr Jovanovski to drive the reversing crane - apparently without a harness since the site of the reversing crane at that time did not need it. Mr Schofield asked Mr Naylor to go up to the temper mill crane that Mr Jovanovski had been operating. Mr Naylor put on a spare harness and lanyard and went back to the cabin of the crane to look for the missing lanyard which he found on the seat in the cabin. 16 According to Mr Jovanovski, at approximately 6.20pm Mr Schofield directed Mr Jovanovski over the two way radio to come to the crib room where he would be waiting to show him how to put the harness on properly. Mr Schofield has a different recollection: his evidence is that he returned to the temper mill and found Mr Jovanovski in the crib room at approximately 6.00pm and directed him to return to the temper mill crane. Not a great deal turns on those different versions of what happened. 17 Before Mr Jovanovski left the crib room and was permitted to resume his work on the temper mill crane, Mr Schofield and Mr Wells showed Mr Jovanovski how to put on the harness and where the straps go. Mr Schofield held the safety wire hooks and he demonstrated how the lanyard from the harness hooked onto the safety wire, asking Mr Jovanovski if he understood. Mr Jovanovski said that he did understand. Mr Schofield claimed that Mr Jovanovski spoke to him in the following terms: "I know how to put a harness on. I don't need help." Mr Jovanovski claimed that when he said that he was simply meaning that he knew how to tighten the straps on the harness. 18 Mr Schofield then accompanied Mr Jovanovski up the stairs to the crane runway where he attached the lanyard to Mr Jovanovski's harness and explained how to use the lanyard on the static safety line and the correct use of a twin lanyard. He claimed that Mr Jovanovski said: "It's okay. I know how to do this." Mr Schofield then observed Mr Jovanovski walk along the runway in a safe manner. 19 Mr Schofield had earlier raised the matter with Mr Russell, who instructed Mr Schofield to inform Mr Jovanovski to attend a meeting with him on the following day. It was subsequently arranged that Mr Jovanovski would meet Mr Russell and Mr Larsen at 10.30am on Thursday, 2 November, 2006. He was asked if he wanted a witness present and he arranged one. Mr Jovanovski claimed that the meeting lasted only approximately 5 minutes. He admitted to Mr Russell that, whilst he had his harness on, he did not have his lanyard connected to the harness and was not therefore connected to the safety wire. He was asked to step outside while Mr Russell and Mr Larsen conferred for a further 8 minutes or so. Mr Jovanovski was then stood down with pay pending a further investigation of the incident. He was directed to return to a further meeting at 11.00am on Friday, 3 November, 2006. 20 Mr Jovanovski was informed at the meeting on Friday, 3 November, 2006 that BlueScope Steel regarded Mr Jovanovski's conduct as a serious matter. He was asked for his explanation and again explained to Mr Russell that he had not been trained in the proper use of the harness and that he had always alighted from the crane in that manner. He was given 48 hours to provide a reason why he should not be dismissed. At a further meeting on Monday, 6 November, 2006 Mr Jovanovski again reiterated his defence for his actions, ie that he had not received any training on how to use the harness. His services were terminated. He was provided with five weeks wages in lieu of notice. The Unfairness 21 It is Mr Jovanovski's assertion, and Mr Hancock's submission on his behalf in this hearing, that he had never been properly trained in the use of the safety harness. Mr Veljanoski also indicated in his evidence that prior to Mr Jovanovski's dismissal, he had not been trained in the proper use of the safety harness and to his knowledge no other crane driver had received such training. Mr Russell disputes those claims. Mr Wells' evidence is that one week after Mr Jovanovski's dismissal Mr Schofield gave his crew training on the proper use of the harness. Mr Russell and Mr Schofield described that training as a "refresher" rather than training - a reminder of the obligations the employees had in the use of the harness to ensure that they do not place themselves at risk in their employment. 22 Mr Russell also recorded in the written statement which accompanied his evidence in this hearing that: "...It was apparent from the training record that Mr Jovanovski had received training about working at heights, including training regarding using a harness and lanyard... Likewise, Mr Jovanovski had received training in the following areas since he started work at packaging products in 2002: * crane bridge and gantry control: the training for this certificate covers the crane pre-operational checks and working within two metres of an unprotected edge; the training also mandates the need to adhere to departmental procedures around fall prevention and includes safe removal from a crane in a breakdown situation; Mr Jovanovski also received a WorkCover accreditation for this task; * crane driver expectations: the expectations refer to the pre-operational inspection and the need to wear fall restraint protection within 2 metres of an unprotected edge; * personal safety checklist: Mr Jovanovski attended the formal training programme which reminds operators of the safety checks that should carry out before they commence a job; on Friday, 27 January, 2006 Mr Jovanovski was also given the updated version of the personal safety checklist which talks about individuals - 'Can I fall or can something fall on me?' - and other objects falling from heights; * the 'Stop for Safety' initiative - November, 2005: his communication session dealt with working at heights; and * BlueScope Steel general induction Level 1: this induction includes working at heights and below critical procedure which details the use of fall restraint and fall arrest systems..." Mr Hancock placed much emphasis in his submissions on what he regarded as the inadequate training of Mr Jovanovski in the use of the harness, with no follow up by BlueScope Steel management and no assessment of the training. But the level of safety training for Mr Jovanovski appears to me to suggest that any assertion by him that he had not received adequate safety training on the use of the harness is simply not plausible. 23 For instance, the "Stop for Safety" initiative extended to include a section on working at heights in unambiguous terms, viz: "...NEVER DISCONNECT from a travel restraint or fall arrest until the task is complete, the procedure allows you to, and you are positioned without risk of fall. Not even for a second. ALL the time - 100% - No exceptions. If this cannot be achieved then do NOT do the job. Find an alternative method..." Mr Jovanovski attempted to describe his walk along the runway by holding onto the safety wire as a suitable "...alternative method...": it was not. 24 Furthermore, prior to commencing any work there is a "pre-operational inspection" form that the crane driver is obliged to complete. At the top of that form is a serious of "warnings" as a reminder to the crane driver. One such "warning" is in the following terms: "...Always use fall restraint (ie wear a safety harness with a short fixed length lanyard attached to an approved static line) when walking or working within two metres of an unguarded edge..." Mr Russell conceded that in the past some crane drivers, including Mr Jovanovski, had not always completed that "pre-operational inspection" form and there had apparently been occasions in the past where some employees refused to do so. But the fact remains that one such form, dated Monday, 26 June, 2006, was completed by Mr Jovanovski. It is confirmation that he must have been aware of the need to wear a harness. 25 And as Mr Wells conceded in his evidence, to walk along an unguarded runway without being attached to the safety line was an unsafe practice. Training in the use of the harness is not rocket science. Any mature employee should appreciate the need for the use of the harness when working at heights. Mr Jovanovski had put on his harness but left his lanyard in the cabin of the crane. What would be the use of wearing a harness at all if it were not to be attached by the lanyard to the safety line as he walked along the runway? It is a matter of commonsense, I would think. Mr Jovanovski was simply cutting corners. It was a very dangerous practice - life-threatening, according to Mr Russell and Mr Hall - and BlueScope Steel management was entitled to treat it as a serious breach of safety - in his own interests. 26 In Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74 Munro J of the former Australian Conciliation and Arbitration Commission declined to re-instate an employee dismissed on the ground that he had done a deliberately dangerous act in clear breach of safety rules known to him (hanging by his hands from a plate being moved by a mobile crane). His Honour commented (at p.76) that: "...I find that (the dismissed employee's) action was foolish and unnecessary. His action not only endangered his own life; his action risked the trauma to his workmates and the entire work-place that a death or maiming at work causes; his action placed in balance the employment of his supervising crane chaser and of the crane operator; his action repudiated the company's direct educational programme in his workplace on safety procedures. I consider that the company did not fail to act fairly in the procedure which it followed in reaching a decision about (the dismissed employee's) action and attaching a penalty to it. I would normally expect that a system of warnings would be given in relation to employment offences, including some breaches of safety, but I find that the company did not act unreasonably in this instance in dismissing (the employee)..." His Honour went on (at p.76) to consider whether or not he should "...recommend any act of grace by the company..." towards the dismissed employee. He noted that the dismissed employee's employment had been, in effect, extended whilst the hearing of the matter occurred and that, apart from the incident which led to his dismissal he had been provided with a reference covering his good employment record. Having regard to those fact, his Honour declined to intervene in support of the dismissed employee. 27 I am uncomfortable to intrude in these proceedings in any manner which would possibly undermine the sensible emphasis which BlueScope Steel places on safety issues in the steelworks with its "cardinal rules". There is a need for the employees to appreciate that, among other things, their continued employment in the steelworks is largely dependent upon their compliance with those "cardinal rules". Mr Hall's evidence, contained in a written statement was as follows: "...Within the company there have been approximately 135 fatalities since 1945. Of these 135 fatalities, 18 have been as a result of falling from heights. Additionally, 6 of these deaths occurred from 1992 to 2006. Through the analysis of these incidents, the company produced a list of 17 critical safety risks. All critical safety risks have networks across the organisation in place to manage these risks. Working at heights is identified as one of those 17 critical safety risks. If you look at the workplace outside of BlueScope Steel, working at heights is also rated very high on the critical risk list. This is because the injuries and fatalities resulting out of people working at heights are very high..." 28 All employers have a common law duty of care to provide a safe working environment and a safe system of work for all of their employees. That duty of care is complimented by S.8(1) of the 2000 Occupational Health and Safety Act, viz: "Every employer shall ensure the health, safety and welfare at work of all his employees." For any employees working at heights, by virtue of the regulations to the Occupational Health and Safety Act, there is an obligation on employers to provide fall arrest devices, ie harnesses and safety lines and proper training in "...the selection, assembly and use..." of those devices [Reg.56(2)(d)]. Moreover, employers are also obliged to give very serious consideration to assessing whether or not any of its employees conducts himself at work in a safe manner because, if he does not, he would be unsuitable to remain in employment with them. 29 Employees also have certain obligations in that respect under the Occupational Health and Safety Act. For instance, S.20(2) provides: "An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person." A penalty is imposed against an employee under S.20(2). 30 But my task in this hearing is restricted essentially to establish whether or not, in all the circumstances, Mr Jovanovski's dismissal was unfair - either "harsh", "unreasonable" or "unjust", to use the language of S.84(1) [Busways v. Johnson (1994) 55 IR 255 at p.261]. Those words "harsh", "unreasonable" and "unjust" in most cases mean the same thing. In Parker v. Capital Painters Pty Limited (1996) 68 IR 100 I defined those words (at p.104) as follows: "…'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)…" 31 But in Pacific Power v. Crump (1993) 48 IR 296 at p.302 the Full Bench of the Commission (Fisher P, Hungerford J and Connor CC) accepted a distinction that had been drawn at first instance that a dismissal which was neither unreasonable nor unjust could nevertheless still be harsh. An employer may act unfairly, ie harshly, where he dismisses an employee if the offence against the employee which, while it is worthy of some disciplinary action taken against the offending employee, is not sufficient to warrant his dismissal - the "punishment" should always fit the "crime". The Full Bench in Pacific Power v. Crump (1993) 48 IR 296 commented in that connection (at p.302) that the test was whether or not: "…the ultimate sanction of termination of employment was too severe a penalty…" Therefore, even where the grounds for terminating the contract of employment are made out, it still remains open to me to examine the severity or otherwise of the step of dismissal, having particular regard to a range of factors, including the length of an employee's services and his overall employment record [ Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 at p.233]. That is what Munro J was considering in Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited when he spoke of an "...act of grace..." for the employee who has been dismissed, ie whether he should be given another chance. 32 In his evidence Mr Naylor described Mr Jovanovski as an average worker only. He regarded him as a somewhat difficult employee who was not always obliging in performing work. Mr Schofield indicated in his evidence that he considered Mr Jovanovski to be an unco-operative employee. Mr Naylor has also suggested that he did not have a good working relationship with his workmates but there is nothing apart from Mr Naylor's comment to support that allegation. Mr Naylor indicated that Mr Jovanovski was apt to swear and act aggressively at work. He also described another safety breach by Mr Jovanovski - an incident in the past where Mr Jovanovski had dropped a coil while he was operating an overhead crane. But Mr Dearden advanced nothing in this hearing to indicate that Mr Jovanovski had received warnings or counselling over his work performance and attitude at work in the past. 33 Of course, employment is not a popularity test and it is not ground for dismissal of an employee that his relationship with other employees may be somewhat strained at times. And it is also hardly surprising that the conversations of groups of men working together would involve colourful language at times. A steelworks is a fairly robust employment environment. Such offensive language would not, to my mind, be grounds for dismissal unless it was the expression of a constant hostile or belligerent attitude to fellow employees and, more particularly, supervisory staff [South Sydney City Council v. Federated Municipal and Shire Council Employees Union (1989) 28 IR 363 at pp.365 and 366]. As I indicated in my unreported decision of Thursday, 22 May, 2003 in Doyle v. Ford's Tyres [Matter No.IRC 5784 of 2003 at p.7]: "…if a proper grounds for dismissal was that an employee was glum and moody at work at times, or that he swore occasionally, I would expect there would not be many employees left at work at all. But where an employee's attitude and offensive language is directed belligerently against those from whom he should be taking directions and fellow employees, it is another matter entirely, in my opinion…" 34 The fact remains that Mr Jovanovski has 28 years of apparently generally satisfactory employment with BlueScope Steel behind him. This employment record, apart from the incident on Wednesday, 1 November, 2006, appears to have been relatively uneventful. Whilst I recognise that Mr Jovanovski's conduct on Wednesday, 1 November, 2006 was certainly unsafe, unwise and worthy of censure by BlueScope Steel, in the circumstances, I believe that his dismissal was still an excessive penalty to him. It was too harsh. The Appropriate Remedy 35 Mr Hancock has sought Mr Jovanovski's reinstatement in employment in terms of S.89(1). That remains the preferred remedy for an unfairly dismissed employee - a view that has consistently been reaffirmed in the Commission [Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218, Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 at pp.341 and 342, Burge v. BHP Steel Pty Limited (2001) 105 IR 325 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115]. But there is a difficulty with that remedy in this case. The tin mill where Mr Jovanovski is engaged is shortly to close: indeed, I understand that the closure is imminent. Mr Jovanovski's reinstatement in employment as a crane driver in the tin mill is therefore only ephemeral and Mr Dearden has challenged it on the basis that it is therefore not practicable. 36 But the fact that Mr Jovanovski's reinstatement may only temporarily provide a remedy to him should not, in my opinion, mean that the primary remedy of reinstatement should not be available to him. He would then be in the same position as other employees in the tin mill, ie he would remain in employment until either he found employment elsewhere within the steelworks or benefited from any redundancy arrangements for displaced staff. For instance, in Little v. Commissioner of Police (No.2) (2002) 112 IR 212, the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Boland J) took the unusual step of notionally (and temporarily) reinstating a dismissed employee who had announced his intention to retire (thereby preserve superannuation entitlements). Relevantly, the Full Bench pointed out (at p.244) that: " ...the effect of the making of an order for reinstatement will be that, having regard to the undertaking given by the appellant, he will retire rather than resume his position with the Service. In these circumstances and, having regard to the consequences of the removal, we consider that it is appropriate to reinstate the appellant in such a manner as to enable the appellant to retire with the relevant superannuation benefits..." 37 Nevertheless, I do not believe that Mr Jovanovski is entitled to the remuneration prescribed by S.89(3) to cover the period between his dismissal and his reinstatement. His conduct still warrants some penalty to him, to my mind. What has concerned me in this hearing - as it apparently did Mr Larsen at the time of his dismissal - was his failure to appreciate that his conduct was unsafe and to simply rely on whether or not he had received proper training in the use of a harness. BlueScope Steel has his interests at heart in making sure he acts safely in his work. His action was clearly unsafe and wrong and he must take more responsibility for his own safety at work. He must appreciate that if he wishes to retain employment in the steelworks, it will require a change of attitude by him to issues of workplace safety. The matter is in his hands. 38 I therefore conclude these proceedings by making the following orders: O R D E R 1. Bluescope Steel (AIS) Pty Limited shall: (a) reinstate Mr Borce Jovanovski in employment as a crane driver; (b) take his employment not to have been broken by his dismissal. 2. This order shall take effect on and from Wednesday, 11 April, 2007. 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.