Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. Transfield Services (Australia) Pty Limited [2008] NSWIRComm 1120 APPLICANT Australian Workers Union PARTIES: RESPONDENT Transfield Services (Australia) Pty Limited FILE NUMBER(S): IRC 1822 of 2008 CORAM: Connor C CATCHWORDS: claim for unfair dismissal - steel industry - referral agreement - matter dealt with as an industrial dispute - breach of safety obligations - altercation with fellow employee - employee suspended pending dismissal - dispute order for reinstatement made Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Federal Workplace Relations Amendment (Work Choices) Act 2005 Bridge v. Australian Meat Holdings Pty Limited - unreported Brown v. BlueScope Steel (AIS) Pty Limited - unreported Corbeski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 Homebush Abattoir Case (1966) AR 371 CASES CITED: Jankoski v. BHP Port Kembla (1996) 71 IR 313 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 Shop Distributive and Allied Employees Union v. Franklins Stores - unreported HEARING DATES: 05/11/2008 DATE OF JUDGMENT: 18 December 2008 APPLICANT Andrew Gorman Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT John Lee Transfield Services (Australia) Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 18 December, 2008 Matter No IRC 1822 of 2008 Australian Workers Union and Transfield Services (Australia) Pty Limited Notification of an industrial dispute by the Australian Workers Union under S.130 of the Industrial Relations Act, 1996 re suspension of an employee Referral of a matter under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and Transfield Services (Australia) Pty Limited DECISION [2008] NSWIRComm 1120 Background 1 The Australian Workers Union has lodged a notification of an industrial dispute with Transfield Services (Australia) Pty Limited under S.130 of the 1996 Industrial Relations Act concerning an alleged threat of dismissal of an employee engaged by Transfield in its operations in the steelworks at Port Kembla. The employee concerned, Mr Kole Obednikovski, had an altercation with another employee on the steelworks site whom he believed had insulted his wife. Mr Obednikovski is a rigger employed by Transfield. The other employee in the incident, Mr John Gallo, is a cleaner employed by another contractor. Mr Obednikovski threw a metal bar some eighteen inches long either in the general direction or at the other employee. 2 The matter was allocated to me and I set it down for a conference on Tuesday, 30 September, 2008 (in the Commission's premises at 90 Crown Street, Wollongong). I adjourned the matter for more formal proceedings on Wednesday, 5 November, 2008 (also in Wollongong), issuing the certificate of attempted conciliation required by S.135 and lodging it in the prescribed manner. 3 Mr Gorman represented the AWU in the hearing, calling Mr Obednikovski to give evidence. Mr Gorman's claim, as I perceive it, is essentially for a dispute order from me under S.137(1)(c), viz: "....The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so..." No doubt S.137(1)(c) is directed primarily as a circuit-breaker for intransigent industrial disputes, accompanied with industrial action. But it may still apply for the dismissal of employees (or a single employee) in the circumstances before me in this hearing. Transfield has in place a protocol for resolving industrial disputes without industrial action and the referral of the matter to me under S.146A is in conformity with that protocol. 4 Mr Lee represented Transfield in the hearing. He indicated that it was, in fact, the intention of Transfield to terminate Mr Obednikovski's services. However, it has reserved its position to await the outcome of these arbitrated proceedings. In the meantime, Mr Obednikovski had been placed under suspension. Initially, he was paid wages for five days of that suspension. He then exhausted his annual leave entitlements. He is presently on unpaid suspension since Friday, 24 October, 2008. 5 Transfield is, of course, a trading corporation under S.51(xx) of the Commonwealth Constitution and, as such, its industrial activities now fall principally under the 2005 Federal Workplace Relations Amendment (Work Choices) Act. Its Port Kembla steelworks employees are covered by the Transfield Services (Australia) Pty Limited (Port Kembla) Maintenance Award which by a 2006 amendment to the State IR Act - Part 8A of Schedule 4 [S.44C] - has been converted into an enterprise agreement and, as such, become a "preserved State agreement" [PSA] under Work Choices. But the 2006 amendment to the State IR Act also provided two methods by which industrial disputes involving S.51(xx) corporations may still come before the State Commission, viz: (i) a referral agreement of either a general nature or specific to a particular dispute in terms of S.146A, giving the State Commission such powers as are conferred by the referral agreement itself, and subject to such conditions as are contained in the S.146A referral agreement; and (ii) a referral of a matter under S.146B by which the State Commission is vested only with such powers as are provided by virtue of Work Choices. The parties have completed a S.146A referral agreement and that referral agreement gives me the authority to proceed with this matter. The Incident 6 On Wednesday, 10 September, 2008 Mr Obednikovski and another Transfield employee, Mr Carmello Valario, were engaged in removing a valve on a pallet, taking it outside the workshop area and loading it on a truck. The subsequent disagreement with Mr Gallo which led to Mr Obednikovski's suspension appears to have been a trivial affair, at least at first. Mr Obednikovski and Mr Valario had taken the valve outside the workshop and were waiting in the crib room for the truck. Mr Gallo came to close the roller door to the workshop but Mr Obednikovski and Mr Valario told him not to do so as they were waiting for a truck. 7 Mr Gallo said something which Mr Obednikovski did not hear and walked away. He returned about ten minutes later and shut the roller door. Mr Valario said: "Look what he's doing. He's creating problems." And Mr Obednikovski went and opened the roller door. He indicated in his evidence that he thought that a truck was arriving but that was not the case. Then Mr Gallo came to the crib room, started yelling, and asked: "Little weasels, why did you open the door?" To which Mr Obednikovski responded: "Look, why don't you just do your job? We are waiting for the truck. Just go and do your cleaning." According to Mr Obednikovski, Mr Gallo began to call him names and he made a remark concerning Mr Obednikovski's wife. Mr Obednikovski did not hear what was said but evidently formed the view that something offensive had been said concerning his wife. It is my understanding that Mr Gallo had called his wife a "...low life cleaner...". 8 Mr Obednikovski turned around. The metal bar was on the bench. He picked it up and threw it (underarm) in the general direction of Mr Gallo. According to Mr Obednikovski he had not intended to hit Mr Gallo and he did not do so. It was not thrown with force and it landed about three or four feet way from Mr Gallo. But it was a heavy implement. Mr Gallo picked up the bar and Mr Obednikovski claimed that he approached him waving the bar threateningly until Mr Valario and later, Mr Danny Walton, a supervisor intervened to stop the altercation. Conclusion Of course, it goes without saying that throwing a metal bar at an employee is a dangerous act, even if Mr Obednikovski had never intended to hit Mr Gallo with it. It is open to me to speculate that a more serious incident was averted only because Mr Valario and Mr Walton intervened. And there are also many precedents for employees to be dismissed for a serious breach of safety for incidents of this nature. For instance, in her unreported decision of Thursday, 9 January, 1992 in Shop Distributive and Allied Employees Union v. Franklins Stores [Matter No.IRC 1629 of 1991] Tabbaa C refused to reinstate an employee who had thrown a potato at another employee (as a joke), striking her on the back of her neck. In his unreported decision of Friday, 11 June, 1993 in Bridge v. Australian Meat Holdings Pty Limited [Matter No.IRC 1164 of 1993] O'Neill C declined to intervene in support of an employee who had thrown a rolled up piece of fat at another employee, hitting him in the eye. In Jankoski v. BHP Port Kembla (1996) 71 IR 313 Murphy C refused to intervene in support of an employee dismissed for filling his hard hat with hot water and throwing it at a fellow employee. A metal bar is considerably more serious as a thrown object than a potato, a rolled up piece of fat or a hard hat full of water. 9 As Mr Lee emphasised in his submissions, it must be appreciated by all employees that the steelworks is a hazardous work environment and there are "cardinal rules" for workplace safety in place which Port Kembla steelworks management regard as serious and enforce rigorously for its employees as well as the employees of its contractors on site. It is sensible that they do so. Transfield has reinforced those "cardinal rules" for the steelworks with its own house rules which, among other things, emphasise as grounds for instant dismissal "...assaulting other employees..." or "...negligent acts which result or could result in damage to company property, product or personnel...". Throwing a metal bar at a fellow employee is still an assault, albeit that the metal bar did not hit Mr Gallo. Those house rules form part of the contract of employment for all Transfield employees. 10 As I indicated in my unreported decision of Wednesday, 11 April, 2007 Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 3430 and 3487 of 2006 at p.13: "...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'...." And in my unreported decision of Friday, 4 March, 2005 in Brown v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 6429 of 2004], I highlighted the obligations placed on all employees under the 2000 Occupational Health and Safety Act to conduct themselves safely at work. In particular, S.20(2) provides as follows: "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). And it follows that any employee who fails to follow safe work practices leaves himself open to disciplinary action by his employer, including dismissal. 11 Nevertheless, as Mr Gorman submitted, Mr Obednikovski has 34 years of service in the Port Kembla steelworks - the last seven years with Transfield. That employment has been, for the most part, without incident and he has received no formal warnings over his conduct on safety issues or any other issues (although he has received counselling over some safety issues). In my unreported decision of Thursday, 21 December, 2006 in Corbeski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 2909 of 2006] while I believed that the employee's conduct (moving the tongs of an overhead crane towards another employee with whom he had an argument) was worthy of censure and some discipline, I considered that his dismissal was too severe a penalty for him, having regard to his lengthy period of generally satisfactory employment - 40 years. That is to say, using the language of the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC in Pacific Power v. Crump (1993) 48 IR 296 at p.302, "...the ultimate sanction of termination of employment was too severe a penalty...". 12 Watson J of the former State Industrial Commission explained the position in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 when he said (at p.233) that: "…in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence…" That type of approach by his Honour is contemplated and reinforced by the actual language used for claims of unfair dismissal in the Commission in S.84(1) - "harsh", "unreasonable" or "unjust". In particular, the word "harsh" supports Mr Gorman's arguments. 13 This act by Mr Obednikovski appears to be atypical for him. A single act of misconduct may be sufficient to justify dismissal, even summary dismissal, if it is serious enough and strikes at the heart of the contract of employment [Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 and the Homebush Abattoir Case (1966) AR 371 at p.374]. But the incident in question, when considered in the context of Mr Obednikovsk's otherwise lengthy and generally satisfactory employment, whilst it was clearly wrong, in my opinion, does not warrant his dismissal. After all, the matter must be assessed according to the standards of men, not angels [Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]. 14 Mr Gorman does not challenge the assertion of Mr Lees that Mr Obednikovski's conduct was wrong and that it is conduct worthy of some penalty. But Mr Gorman suggested that, particularly having regard to his lengthy period of employment, something less than his dismissal over this isolated incident would have been appropriate. I agree. In those circumstances, I believe that Mr Obednikovski's period of suspension should be removed and that he be reinstated in employment in his former position in the steelworks effective from Thursday, 18 December, 2008. 15 Mr Lee opposed the reinstatement of Mr Obednikovski in his former position in the steelworks but, as an alterative, if I were to consider that Mr Obednikovski should return to employment, he would prefer his being engaged in work outside his current work environment in the steelworks. Mr Gorman took the view that Mr Obednikovski's employment for 34 years had been at the steelworks and he did not support his working for Transfield elsewhere. Mr Gorman indicated that Mr Obednikovski had many work colleagues at the steelworks site with whom he was friendly. But I point out that not everybody who works with him is his friend, as the altercation with Mr Gallo confirms. 16 The fact remains that, provided always that it acts reasonably at all times, any employer retains the right to transfer any employee to work of the type for which the employee is ordinarily engaged. That is a condition of Mr Obednikovski's contract of employment with Transfield - as, indeed, it is a condition of any employment. In ordering reinstatement of employment for Mr Obednikovski, therefore, I do not propose to restrict Transfield as to the position in which it actually may engage him. That is a matter, in the first instance, for further discussion between Transfield and the AWU. But I have to say that I see no reason why Mr Obednikovski should not return to his existing position where he has worked for some considerable time already, apparently without incident. 17 Mr Obednikovski should not expect to be entitled to any compensation for his misconduct. Some penalty should still apply to him. He shall not be entitled to any payment for the period when his unpaid suspension commenced (Friday, 24 October, 2008) to the date of this decision (Thursday, 18 December, 2008). Otherwise his period of employment with Transfield will be preserved. 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.