Industrial Relations Commission of New South Wales CITATION: Australian Workers Union, New South Wales (on behalf of Ciro Pinto) and BlueScope Steel (AIS) Pty Limited [2008] NSWIRComm 1017 APPLICANT Australian Workers' Union, New South Wales PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 1329 of 2007; 1330 of 2007 CORAM: Macdonald C CATCHWORDS: Section 84 unfair dismissal application - Section 130 dispute notification plus s146A Referral Agreement - Dismissal of Mr Ciro Pinto from Bulk Berth Discharge - Pinto responsible for tipping his forklift onto its side - another employee (Mr Dilevski) advised company officers that he was the person responsible for the forklift incident - Dilevski undertook drug & alcohol test - negative test result - company investigation into incident - Pinto admitted he was person driving forklift and tipped the forklift - Pinto avoided drug and alcohol test by his dishonesty - Pinto worked on large mobile equipment later that shift - Pinto dismissed for serious and wilful misconduct - reinstatement application - Union's case was that Pinto's manager had condoned Pinto's conduct during their first meeting when Pinto owned up to his dishonesty - Respondent's case was that summary dismissal warranted given Pinto's dishonest conduct - Commission found that manager had condoned Pinto's conduct - reinstatement ordered - no order made for Pinto to be paid for lost earnings. LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Australian Workers' Union, New South Wales (o/b Zoran Angelkovski) and BlueScope Steel (AIS) Pty Limited [2007] NSW IRComm 1010 Australian Workers Union, New South Wales (o/b Vince Stojanovski) and BlueScope Steel Pty Limited (IRC 4305/04) 18 October 2004) Australian Workers Union, New South Wales (o/b Dirk von Borstel) and BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1009 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Concut Pty Ltd v Worrell and Another (2000) 176 ALR 693 Corbeski v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 Janonovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Leonard v BlueScope Steel Limited [2007] NSWIRComm 1023 Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 HEARING DATES: 25/10/07; 26/10/07; 9/11/07 and 20/11/07. DATE OF JUDGMENT: 29 February 2008 APPLICANT Mr A Gillespie LEGAL REPRESENTATIVES: Australian Workers' Union, New South Wales RESPONDENT Mr K Brotherson, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 29 February 2008 Matter No IRC 1329 of 2007 Australian Workers' Union, New South Wales (on behalf of Ciro Pinto) and BlueScope Steel (AIS) Pty Limited. Notification under section 84 by Australian Workers' Union, New South Wales on behalf of its member, Mr Ciro Pinto re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No. 1330 of 2007 Australian Workers' Union, New South Wales and BlueScope Steel (AIS) Pty Limited Notification under section 130 by Australian Workers' Union, New South Wales of a dispute with BlueScope Steel re member allegedly being forced to sign negative drug and alcohol test DECISION [2008] NSWIRComm 1017 1 The Commission has before it, an unfair dismissal application under s84 of the Industrial Relations Act ("the Act"). The unfair dismissal application was lodged by the Australian Workers' Union, New South Wales ("the Union") against BlueScope Steel (AIS) Pty Limited ("the Respondent"): IRC 07/1329. 2 The Commission also has before it, a dispute notification under s130 of the Act, lodged by the Union against the Respondent: IRC 07/1330. A s146A Referral Agreement was attached to the dispute notification. 3 The s84 and s130 files concerned the same subject matter - the summary dismissal of Mr Ciro Pinto. Both files were joined in conciliation proceedings before Connor C. 4 Failing settlement during conciliation, the matter was programmed for a Hearing. The Respondent thereupon made a s173 application for another member of the Commission to determine the arbitration of the reinstatement application. 5 The Hearing took place over four days - 25 & 26 October, 9 & 20 November 2007. 6 At the Hearing, the Union was represented by Mr A Gillespie, union official, who called the following witnesses: Ciro Pinto - the Applicant, Shipping Department Paul Dawson - Operator, Shipping Department Mark Dilevski - Operator, Shipping Department The Respondent was represented by Mr K Brotherson, solicitor, who called the following witnesses: Andrew Drake - Bulk Operations Team Leader Ian Ross - Manager, Iron Making Vincenzo de Santis - Manager, Bulk Operations Greg Boston - Reliability Engineer Michael Patti - Senior HR Advisor Ralph Keats - Principal Advisor, Safety Health and Risk The Commission and the parties held an inspection of the incident area on the wharf on the first day of the Hearing. BACKGROUND 7 Mr Ciro Pinto was employed by the Respondent for a period of some 27 years and held a number of positions. 8 For the last 12 years he has worked in the Shipping Department. (This department might also be called the Bulk Operations Department - the Commission) In any event, the 2 August 2007 incident which led to the dismissal of Mr Pinto took place on a wharf, where cargo from shipping vessels is discharged. The cargo is used for iron and steel making. 9 Ciro Pinto was rostered to work from 6.00pm. But, beforehand, he visited his mother and deposed he had 2 or 3 light beers at her home. 10 At work, there was a job requirement to pick up some scrap rope from near a scrap bin (located on the wharf) and place that scrap into the bin. This bin was located at that part of the Wharf where there is a partial decline. The bin is large and rectangular in shape. Its long side is parallel to the wharf and hence, the water. 11 Mr Pinto used a forklift for placing the scrap rope into the bin. The forklift was positioned, for this purpose, at right angle to the long side, with the back of the forklift facing the water. Mr Pinto lifted up the ropes with the forks (the tines) of the forklift. He realized, he said, that the ropes were not centred and put the ropes down on the ground. On his second attempt, he was satisfied that the ropes were properly centred. He raised the forks to their highest point, in order to ensure that the dangling ropes would clear the side of the bin for dumping the same into the bin. 12 Mr Pinto drove toward the bin - with the forks extended upwards to their highest point. He said he felt the rope load shift to his right - which is the same direction as the slope at this part of the wharf. He said he panicked, at this shifting of the load, and grabbed the wrong forklift lever and tilted the forks forward. The forklift fell to the right and toppled onto its side. Mr Pinto was wearing a seat belt and was not injured. 13 Mr Pinto deposed he was badly shaken and panicky and thought that he would go to jail (lose his job) because of the Respondent's zero tolerance alcohol policy. He telephoned another employee, Mark Dilevski, who came down to the scrap bin incident. 14 It was Mark Dilevski who said to the Respondent's officers that he was driving the forklift. He was sent for a drug and alcohol test which proved negative. 15 The Respondent's officers carried out an investigation into the incident of 2 August (a Thursday). During this investigation, Mr Pinto put forward a view to Vince De Santis (Manager, Bulk Operations) as to the probable reason for the forklift incident. The reason did not include that it was himself who had been driving the forklift. 16 Mr Pinto was not rostered to work again until day shift on the following Tuesday. 17 He and Mark Dilevski spoke to each other a number of times over the next few days following the incident. Ciro Pinto deposed they both agreed it would be the right thing to do if they owned up to what had actually happened. 18 Ciro Pinto telephoned Vince De Santis on the Monday morning to have a meeting which took place that morning. Paul Dawson was asked by Mr Pinto to be his witness. Mr Pinto advised of his being the forklift driver. He explained about having the 2 or 3 beers at his mother's house, prior to work. He said he panicked because he thought there was a zero tolerance alcohol policy. Mr Pinto went home. 19 He telephoned Mr de Santis later that day and was told to come to a meeting that afternoon. Present at the meeting were: Ciro Pinto, Paul Dawson, Vince de Santis and Michael Patti (Senior HR Advisor). The meeting discussed the forklift incident. At the end of the meeting, Mr de Santis asked Ciro Pinto to return the next day and convince why he should not be terminated. 20 The next day, Tuesday (7 August), Mr Pinto had a drug and alcohol test which proved negative. Following this, another meeting took place around 10.00am. The same persons were present, as for the day before. Ciro Pinto put forward his reason as to why he should not be terminated. Messrs de Santis and Patti took a short adjournment to consider the situation. They returned to the meeting and Mr de Santis advised Ciro Pinto that he was to be terminated. FINAL SUBMISSIONS For the Union 21 Mr Gillespie, of the Union, put the following in final submissions: (a) Ciro Pinto was a very good worker. (b) The rope scraps had not been cut by other wharf workers to the standard length of 1.5 metres required for disposal, but had been cut at odd lengths and this created a problem for lifting the rope scraps into the bin. (c) The forklift was not adequate for the job at hand because one wheel was shorter than another. The shorter wheel was leaning toward the slope. The area was wet. Thus the conditions were hazardous for that particular forklift job. (d) The personal circumstances of Ciro Pinto at the time of the incident was that his wife was in hospital in Queensland and his mother was having problems accepting her husband's death (Mr Pinto's father). (e) The circumstances set out in paragraphs (b) to (d) above had an impact on Ciro Pinto's state of mind at the time of the incident, said Mr Gillespie. Mr Pinto thought he would go to jail (lose his job) and was confused as to what was the allowable tolerance for alcohol once at work. Mr Pinto thought, incorrectly, it was zero tolerance, as opposed to the correct tolerance of 0.05. (f) Mr Dilevski was telephoned by Mr Pinto following the incident. Mr Dilevski's evidence was that Pinto was in a state of shock and Mr Dilevski decided himself to take the blame for the forklift incident. Mr Dilevski was not asked by Pinto to take the blame. (g) Mr Pinto decided over the weekend, in talks with Mr Dilevski, that he would speak to Mr de Santis and advise as to what really happened. Mr Pinto met with Mr de Santis who it was submitted, said to Ciro Pinto that he would not lose his job over the incident - but Mr Pinto did. (h) The 27 years of service of Ciro Pinto was given no weight prior to dismissal. (i) The issue of trust raised against Ciro Pinto by the Respondent's witnesses, also applied to Mr de Santis. (j) The email (Ex. 10) of Mr Drake (Team Leader) to Ciro Pinto was shown by the evidence of Mr Drake to be nothing more than a refreshing of Ciro Pinto's memory as to matters to be considered by Pinto in his defence as to why he should not be dismissed. (k) Mr Pinto sought reinstatement without loss of continuity of service. If there is to be a punishment, then he should lose four day's pay as did Mr Dilevski for his part in the incident. For the Respondent 22 Mr Brotherson, for the Respondent, put the following in final submissions: (a) The letter of dismissal of 7 August set out three reasons for dismissal on the ground of serious misconduct (Ex 14 - Annex VDS 15). (b) The Respondent carried the onus to establish the facts to support the summary dismissal. That onus was satisfied by the admissions of Ciro Pinto. (c) The conduct of Mr Pinto occurred within the environment of a working steelworks which is an inherently dangerous environment. Pinto's conduct had put at risk his own safety and that of his co-workers. All employees are made aware of the message that safety is paramount through the Respondent's policies and the relevant enterprise agreement governing conditions of employment. (d) Mr Pinto had engaged in deceit or dishonesty which goes to the heart of employment relationship. The case law relied upon by the Union in its final submissions to support reinstatement can be distinguished on the basis that those cases do not involve the element of deceit. The deceit/dishonesty involved not owning up to his being responsible for the forklift incident and he was involved in a cover-up (with Dilevski) that lasted a few days. The purpose of this deceit was to evade a drug and alcohol test and its consequences. (e) There is no medical evidence to support the Union's submission that Ciro Pinto had some sort of mini breakdown to explain his state of mind for the incident. (f) Subsequent to the incident, Mr Pinto engaged in the enquiry into the incident and continued to work (including a two hour period operating the number 3 ore unloader). This evidence showed there was no mini breakdown and he had worked on the ore loader knowing that he had been involved in a "significant incident" for which he had not been drug and alcohol tested (by his own evasion of that test). This raised, as well, Mr Pinto's regard to his own safety and that of his co-workers in working on such equipment, following the "serious incident". (g) The Union's claim that the internal appeal process used by Mr Pinto against the dismissal decision was flawed, was rejected. (h) Reliance was placed on a decision of the Commission ( Macdonald C) for its relevance to these proceedings: Australian Workers Union (o/b Zoran Angelkovski) and BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm1010. (i) Reinstatement was opposed. Union in Reply 23 Mr Gillespie, in reply, made the following points: (a) The decision of the Commission in the Angelkovski case could be distinguished in that Mr Angelkovski "came clean" to the investigators because he knew where the investigation was heading - to himself, rather than the other crane driver who said he (falsely) was the cause of the incident in that case. Mr Angelkovski had also denied to the enquiring company officers that he was to blame for the incident in question. (b) The evidence of Mr de Santis was not to be preferred. (c) There was no cover up by Ciro Pinto or Mark Dilevski as to the forklift incident. (d) Mr Pinto is not a deceitful person. He made an error of judgement. (e) Mr Pinto is a valued employee who made one mistake. He sought reinstatement, without loss of continuity of employment. The penalty of four days suspension without pay applied to Mr Dilevski, should apply to Mr Pinto. CONSIDERATION 24 Mr Ciro Pinto seeks reinstatement without loss of continuity of employment. He had been in the employ of the Respondent for some 27 years at the time of his summary dismissal. His earnings was about $2,100 gross per week. The Respondent opposes reinstatement and, if monetary compensation was to be awarded in lieu, then such compensation should be at the low end because of his misconduct and earnings made post dismissal. Reasons for Summary Dismissal 25 The Respondent provided a letter (authored by Mr Patti) to Mr Pinto setting out the grounds for summary dismissal. (Ex 14 - Annex VDS 15) Relevantly, the letter of 7 August 2007 has three headings: Investigation, Show Cause Meeting and Company Determination. 26 Under "Investigation", the letter states that the following was established: · "You knowingly operated licensed mobile equipment whilst you were in a condition that had the potential to put at risk your safety and that of your fellow workers and was inconsistent with our Cardinal Rules that sets out the Company's life preserving principles; · You knowingly sought to deceive and collude with another employee to avoid detection of the events related to the accident with the forklift; · You acknowledged that your actions put at risk your own safety and that of your co-workers." The Commission notes that the second dot point identifies a specific piece of equipment - "the forklift". The first dot point does not identify a specific piece of equipment. 27 There is a term, "licensed mobile equipment" appearing in the above extract. Is this a reference to the "forklift" only or does it include the operation of "the number 3 ore unloader" which Mr Pinto drove after the forklift incident? Under cross-examination, the Applicant confirmed that this term referred to front end loaders, forklifts, overhead cranes and the ore unloaders. (Tr 25/10/07 - pp 17 and 18). However, although the Applicant confirmed what he understood to be meant by this term, that understanding does not clarify what Mr Patti (Senior HR Advisor) meant by the use of that term. Thus, is it the driving of the forklift equipment that gives rise to the summary dismissal? Or is it the forklift and the driving/operating of the ore unloader, later in that shift, that gives rise to the summary dismissal? 28 The summary dismissal letter expressly states that the Show Cause meeting, in the opening paragraph, concerned "the forklift incident No. 106888" (Ex 14 - VDS 15) There is no reference to the Applicant's operation of the ore-unloader. It would seem then, that the letter of summary dismissal is a dismissal letter going to the Applicant's toppling of the forklift only. The Commission will consider later in this Decision the incident or incidents giving rise to the summary dismissal. 29 Under "Show Cause Meeting", the letter advised: "A show cause meeting was held today for the purpose of providing you with an opportunity for you to show cause why your employment should not be terminated. At that meeting we conveyed to you the seriousness of your behaviour and consequently the Company was considering terminating your employment. You provided reasons why your employment should not be terminated including showing genuine remorse however none of those reasons explained away your reasons for your actions on 2 August 2007." 30 Under "Company Determination", the letter is as follows: "Taking into consideration all of the circumstances in the events of 2 August 2007 and your responses provided, the Company believes that your behaviour has been such, that the Company has lost confidence in your capacity to safely and faithfully perform your duties within the requirements of established policies and procedures and believe that the working relationship with management and supervisors of the Port Kembla Steelworks is irretrievable. Accordingly, given the seriousness of the actions on 2 August 2007 the Company has decided to terminate your employment instantly due to serious and wilful misconduct." The Commission notes the term, "to safely and faithfully perform your duties" (emphasis added) appearing in the above extract. The term "safely" is not a new term and is found in two of the three dot points under "Investigation". However, the term, "faithfully" is a new term and is not explained as to how he did not "faithfully perform" his duties. Finally, the letter asserts something about "working relationship" and "irretrievable", but without specifying what conduct constitutes "irretrievable". It is, of course, a reasonable inference that the allegation of "deceive and collude" in the second point, would be a factor covered by the term, "irretrievable" - as in, the working relationship has irretrievably broken down. Onus 31 The Commission's approach to the consideration of this case is based on a summary dismissal. As such the Respondent carries the onus to prove that the facts existed to support the Respondent's decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant) has to prove that those facts existed, on the balance of probabilities. The above standard of proof required by the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354-369, per Dixon J. 32 If the letter of dismissal concerns only the Applicant's conduct in toppling the forklift, then the Respondent's onus was satisfied by the Applicant's concession that he was the person responsible for this conduct. He made that concession when he came clean at his meeting with Mr De Santis at their Monday morning meeting. Condonation 33 The letter of summary dismissal sets out the bases for the Respondent's decision in so summarily dismissing the Applicant. Under the heading of "Investigation", the letter refers to the Applicant's conduct of deception and collusion with another employee and safety issues as to himself and his co-workers. The Applicant's case addressed those issues. The Applicant also raised a defence in favour of his reinstatement and the Commission labels this defence as "Condonation". Condonation is a course of conduct whereby the employer waives its right to dismiss an employee for certain conduct. This waiver of the employer's right to take action against an employee, can be expressly given by the employer or impliedly given by the employer. An express waiver by the employer is where the employer states it will not dismiss the employee (or take some other form of punishment against the employee). An implied waiver is where the employer unduly delays before taking action against the employee or takes no action at all. 34 Mr Gillespie submitted that the summary dismissal of the Applicant was unfair, because Mr De Santis had told the Applicant, that he would not be dismissed. This was allegedly stated to the Applicant at the Monday morning meeting, after the Applicant had come clean to Mr De Santis. If that is so, then prima facie, that would be an example of condonation of the express waiver type. 35 The Applicant's affidavit stated that he was told by Mr De Santis, at that Monday morning meeting, that he would not get the sack. (Ex 1, para 18) Also present at that meeting was Mr Paul Dawson who had been asked by the Applicant (Mr Ciro Pinto) to attend the meeting as his witness. Mr Dawson's affidavit stated that Mr De Santis said that Mr Pinto would not lose his job. (Ex 4, para 8) 36 Mr de Santis filed his affidavit after that of Messrs Pinto and Dawson. His version of what he said on this point differs to the express waiver account of the other two deponents. His version was amended when he took to the witness stand. His original version and the amended version do not represent versions of an express waiver. This is so, as both versions are qualified by Mr de Santis deposing that any decision as to Mr Pinto's job status, would be made after Mr de Santis discussed the matter with other persons. 37 The amended version of what Mr de Santis alleged he said is: "I felt pity for him (Pinto) and I did comment to him that I did not think he would lose his job over this." The next sentence is the qualification of Mr de Santis that he would need to speak to others and that any decision would be made after these discussions. (Ex 14, para 53) 38 The differing accounts between Messrs Pinto and Dawson on the one hand and Mr de Santis on the other were the subject of cross-examination - excepting for Mr Pinto. 39 There was no cross-examination of Mr Pinto on his affidavit evidence that Mr de Santis stated that he would not lose his job. 40 Initially, there was no cross-examination of Mr Dawson on his affidavit evidence that Mr de Santis stated to Mr Pinto that he would not lose his job. (Ex 4, para 8) 41 Before turning to the differing accounts, the Commission sets out below the number of meetings and the attendees for that two day period that culminated in the summary dismissal of Mr Pinto. 42 The first meeting took place on the Monday morning and involved Pinto, Dawson (as Pinto's witness) and de Santis. Mr Dawson was a union delegate but not at this time. (Tr 25/10/07 - p102, line 17 to 22) It was at this meeting that Pinto and Dawson allege that de Santis said Pinto would not lose his job. 43 The second meeting took place on Monday afternoon. The same persons were in attendance but this time, Mr Patti (Senior HR Advisor) was also in attendance. 44 The third meeting took place the next day, Tuesday. The same four persons, as for Monday afternoon, were in attendance. 45 Relevantly, Mr Dawson's affidavit states that Mr de Santis announced the decision to terminate the services of Mr Pinto at this third meeting. The affidavit also alleged Charlie Pinto "went into shock" at this announcement. Pinto and Dawson left the meeting room but Dawson returned. Mr Dawson's affidavit then records the following: "Michael Patti was still there, and I asked Vince ( de Santis ) what was the difference between yesterday and today. Yesterday Charlie still had his job, and today he had been terminated. Vince told me that it was out of his hands, and the decision had something to do with what happened over at the Plate Mill. A similar incident had happened over there and the person had been sacked." (Ex 4, para 12) As stated above by the Commission, Mr Dawson was not initially cross-examined on this issue of what Mr de Santis had said surrounding Mr Pinto's job being safe from dismissal. 46 In re-examination, Mr Gillespie for the Union, raised this issue that Mr de Santis had said that Pinto would not lose his job. This caused Mr Brotherson for the Respondent, to say that this was not a matter that had been raised in cross-examination and he sought accordingly to cross-examine Mr Dawson on this issue. The Commission so granted. 47 Mr Brotherson firstly put to Mr Dawson for comment, something along the lines of what Mr de Santis deposed he said about Pinto's job status at the first meeting. The Commission says, "along the lines", because an additional factor to Mr de Santis' version was inserted. Thus, Mr de Santis' version is that Pinto may not lose his job but de Santis would need to discuss the matter with others and a decision would then be made. The additional factor put to Mr Dawson was that de Santis had also said to Pinto that Pinto would need to make out a statement. The Commission notes that the requirement on Mr Pinto to make out a statement is not inconsistent with Mr de Santis version of the conversation. But did Mr de Santis actually say at the first meeting that a statement was required - along with the rest of Mr de Santis version? The affidavit of Mr de Santis deposes he told Pinto of their first meeting "to come back and make a statement in the afternoon" (Ex 14 - para 54). 48 The significance of this additional factor (the alleged direction to Pinto during the first meeting to make out a statement), goes to the Respondent's case that this requirement for a statement would be evidence that de Santis had not ended the matter at this first meeting (by saying that Pinto's job was safe). The Commission will now consider whether Mr de Santis gave a direction at the first meeting to make out a statement. 49 Mr Dawson replied to the extended de Santis version as follows: "A. Mate, no. Mate, it was not mentioned mate, I'm very sorry." (Tr 25/10/07 - p109, line 4 to 10) 50 Mr Dawson was then taken to the second meeting - being the Monday afternoon. Mr Dawson confirmed that Pinto gave a formal statement to Mr Patti (who was present for the second and third meetings only). The Commission is of the view that the context of this question to Mr Dawson is along the lines of that Pinto was then asked to provide an oral statement to Mr Patti (as to the forklift incident). The context is not that Pinto had already made out a statement, following an alleged direction from de Santis at the first meeting, and then handed over that statement. 51 The foregoing view of the Commission is supported by Dawson's later evidence that Patti took notes of Pinto's evidence as to the events surrounding the forklift incident. (Tr 25/10/07 - p109, line 30 to 37) The Commission notes that that evidence is consistent with Mr Dawson's earlier evidence rejecting Mr Brotherson's scenario that at the end of the first meeting, Mr de Santis had asked Pinto make out a statement. The significance of that rejection is that Mr Dawson is stating that Pinto had been told at the first meeting that his job was safe and there was no qualification to that utterance by Mr de Santis - as in, the need for Pinto to make out a statement of defence (as to why he should not be dismissed). 52 Mr Dawson then gave specific evidence that it was the Monday afternoon meeting (the second meeting) at which Pinto was told to make out a statement of defence (to be brought to the third meeting, the next day). This was not then directly challenged by Mr Brotherson. (Tr 25/10/07 - p109, line 39 to p110, line4) 53 Further, under cross-examination, a summary proposition is put to Mr Dawson for comment. His response is cut short by Mr Brotherson. The summary proposition is in three parts and represents a proposition about each of the three meetings. The Commission reproduces that exchange below and noting, up front, the ambiguity in the first proposition: "Q. But if we look at the sequence, the first meeting on the Monday is not the end of the matter. There's then a second meeting where a statement is taken and a third meeting where an opportunity is given to give reasons as to why dismissal should not occur? A. Okay. But listen, mate, your job's safe, okay, I'm in charge-- Q. No, no, you've answered all the questions I've asked, so I don't have anything further for you, thank you, Mr Dawson. A. Well, okay." (Tr 25/10/07 - p110, line 38 to 49). 54 The first proposition as to "is not the end of the matter", is ambiguous and Mr Brotherson is unable to rely on Mr Dawson's response of "Okay" 55 On one view, the proposition is merely stating the obvious that there was more than one meeting. On another view (as preferred it would seem by Mr Brotherson), the proposition is to be inferred to mean that the first meeting did not bring the status of Mr Pinto's job security to a head with Mr de Santis allegedly stating that Pinto's job was safe - simply because there were two more meetings. The Commission rejects this alternate view. The Commission does so, not only because of the ambiguity of the first proposition, but as well, there is specific evidence from Mr Dawson that Mr de Santis did say: " your job's safe. " This specific evidence overrides any ambiguity. 56 Finally, on this issue, there is the evidence that Pinto made out an oral statement to Patti who took notes about that Pinto oral statement. (Tr 25/10/07 - p109, line 30 to 37) The Commission rhetorically asks as to why would Pinto be giving another statement (at the second meeting) as to the events of the night in question, if he, according to the Respondent's case, has already made out a written statement, arising out of the first meeting? 57 In conclusion on this point as to whether Mr de Santis had given a direction to Mr Pinto, during their first meeting, to make out a statement, the Commission finds that no such direction was given. 58 The Commission now turns to the issue of condonation - as to whether Mr De Santis told Mr Pinto his job was safe or gave a qualified response whereby Pinto's job may be safe but Mr de Santis would need to discuss the matter further with others (peer review process) before making a decision on Pinto's job security. 59 Having considered the evidence, the Commission has decided that the Union's case for condonation has been made out. That is, the Commission accepts that Mr de Santis gave the unqualified response to Pinto that his job was safe. In coming to that view, the Commission does not rely on the pure mathematical calculation of two witnesses (Pinto and Dawson) against one witness (de Santis). The Commission, in having considered all of the evidence, prefers the evidence of Mr Dawson over that of Mr de Santis. The Commission does so based on the demeanour and evidence of Mr Dawson on the one hand against the demeanour and evidence of Mr de Santis on the other. 60 The Commission has relied on the evidence of Mr Dawson who was subjected to the more intense cross-examination on this issue - as opposed to Mr de Santis. (Mr Pinto was not cross-examined on the point at all.) 61 Mr Dawson did not change his evidence, despite the more intense cross-examination, that Mr de Santis had given an unqualified commitment to Ciro Pinto that his job was safe. The Commission also noted his demeanour in the witness box and it was one of being adamant (contra belligerent) that Mr de Santis had given an unqualified commitment. 62 Mr Dawson's affidavit set out a conversation he had with de Santis, in the presence of Patti (Senior HR Advisor) (see para 45 above). In this conversation, Dawson challenged de Santis that the latter had changed his position: yesterday, de Santis had said Pinto still had his job but today, Pinto was terminated. 63 Mr Patti's affidavit does not address this conversation put by Mr Dawson. 64 The filed affidavit of de Santis does not rebut this particular conversation. However, elsewhere in his affidavit, Mr de Santis deposed he advised Pinto during their first meeting that he may still have his job but he would need to discuss the matter with other persons. Mr de Santis was cross-examined on the foregoing but on the basis that he had told Pinto that his job was safe - without qualification. He described the meeting between them and that he felt sorry for Pinto. He could see tears streaming down his eyes. The emotions of Mr de Santis got the better of him and so he told Pinto, " ..I don't think you'll lose your job over this. And that is the mannerism I actually used, I don't think you'll lose your job. " (Tr 09/11/07 - p 57, line 25 to 36) Elsewhere within this response of Mr de Santis, he gave evidence that he knew Pinto would lose his job but because of Pinto's crying, he decided to make Pinto feel better by not telling him that he would lose his job. Instead, de Santis gave the response, " I don't think you'll lose your job over this ." Mr de Santis' affidavit then adds the qualification that any decision would be made after discussions with others. 65 In deciding not to accept this account by Mr de Santis, the Commission has had regard to his demeanour in the witness box as to this account by him and as to other evidence given by him. Thus:- (a) The Commission did not accept, based on the demeanour of Mr de Santis, the giving of this account of feeling sorry for Mr Pinto. (b) Elsewhere in his evidence, Mr de Santis' demeanour was one of downplaying the value of Ciro Pinto as an employee. Mr de Santis described Pinto as an " okay " employee but later said he would be in the top 20 out of 50 employees. (Tr 09/11/07 - p63, line 10 to 24) When this evidence was being given by Mr de Santis, it seemed to the Commission, based on the demeanour of Mr de Santis, that he was downplaying the competence of Ciro Pinto, as an employee. (c) Again, Mr de Santis gave evidence about the expression of remorse given in a letter written by Pinto (as to why he should not be dismissed). He said that Pinto "expressed some remorse, but I don't believe that - I really could not feel confident that that was really remorseful" (Tr 09/11/07 - p70, line 35 to 37) The Commission did not accept this response of downplaying the remorse shown by Pinto. This response contradicts his own summary dismissal letter wherein de Santis said, " you provided reasons why your employment should not be terminated including showing genuine remorse …" (emphasis added) (Ex 14 - Annex VDS 15) 66 Accordingly, the Commission prefers the evidence of Mr Dawson to that of Mr de Santis on this issue as to condonation and finds that Mr de Santis told Mr Pinto that his job was safe - without any qualification. Mr de Santis Authority to Dismiss 67 For the record, the evidence showed that Mr de Santis had the authority to decide whether to dismiss or not to dismiss an employee. Thus, Mr Patti advised that ultimately the decision as to termination, rested with the manager (in this case, de Santis). There is a peer review process whereby advice may be given to the manager on whether to terminate, but ultimately the decision is up to the appropriate manager. (Tr 09/11/07, p86, line 44 to p88, line 24) The Commission finds in this case that Mr de Santis advised Ciro Pinto that his job was safe and had the authority to do so. In this case, Mr de Santis exercised his decision making authority not to dismiss. Any Post-Dismissal Fact(s)? 68 Earlier on in this Decision, the Commission gave consideration as to what was the reason(s) for dismissal and focussed its attention on the summary dismissal letter. The Commission found that this letter related only to the forklift incident, itself. This finding meant that Mr Pinto's later operation of the ore unloader, on the same shift as the forklift incident, was not part of the reasoning for the summary dismissal. (see above, Reasons for Summary Dismissal) 69 This finding, prima facie, would allow the Respondent to argue that it had no knowledge of Mr Pinto driving this ore-unloader and this would then be classified as a fact discovered after dismissal and could be relied upon to support the summary dismissal. The Respondent would (and did) argue that Mr Pinto's driving of the ore-unloader later that shift was conduct potentially injurious to himself and other employees. He had not, after all, checked himself out with a drug and alcohol test for toppling the forklift. 70 The Commission finds that this argument is not available to the Respondent. This finding is the result of Mr Dawson's uncontroverted affidavit evidence as to that first meeting held on Monday morning. He deposed that Pinto not only admitted to being the driver of the forklift but as well that Pinto advised he had driven the ore-unloader. (Ex 4 - para 7) 71 Accordingly, the evidence of Mr Dawson is that Mr de Santis was advised that Pinto had also driven the ore-unloader and when Mr de Santis said (as the Commission has found) that Pinto's job was safe, Mr de Santis did so in the full knowledge of Pinto also having driven the ore-unloader. The Commission accordingly has found that there was an express condonation by de Santis that Pinto's job was safe. The principle of condonation was referred to in Clarke v Metropolitan Meat Industry Board (1967) AR (NSW) 16 at 25. In summary, that principle of condonation, as referred to in that case, is that where an employer has full knowledge of an act amounting to misconduct justifying summary dismissal, but does not exercise that right to summarily dismiss, then the employer has waived the right to summarily dismiss. CONCLUSION 72 The Commission had two competing arguments for consideration concerning Mr Pinto's reinstatement application. 73 The Union argued that Mr de Santis had given an undertaking to Mr Pinto that his job was safe and therefore it was unfair for the Respondent to have summarily dismissed Mr Pinto. 74 The Respondent's argument was that the evidence showed that Mr Pinto had had, at least 2 or 3 beers (allegedly light alcohol) before coming to work. He toppled the forklift but did not immediately own up to that fact. In not doing so, he avoided the Respondent's Drug and Alcohol Policy testing procedure. The Respondent then asked the Commission to draw the inference that Mr Pinto avoided the drug and alcohol test because he had consumed more than 2 or 3 beers before coming to work. And if that be so, was he fit for work. If he was not fit for work, then he placed his safety and that of other employees at risk. Further, the Respondent said Mr Pinto had colluded with another employee (Mr Dilevski) for that employee to be the "fall-guy" for the forklift toppling. This collusion was an act of deceit by Mr Pinto against the Respondent's investigating officers. Finally, Mr Pinto had, later that shift, driven the ore-unloader which weighs about 1500 tonnes and grabs about 40 tonnes of material at a time from a ship's hatches. In operating this machinery, the Respondent said he placed his safety and that of other employees at risk. This was so, as he had not undertaken a drug and alcohol test to assess his fitness for work. As well, he had not checked himself out for any injury he may have sustained from driving the forklift and which injury may have impaired his performance to continue working. 75 The Respondent's argument, set out above, could only be considered by the Commission, if the Union's argument was not made out. That is, if the Commission found that Mr de Santis had not advised Pinto that his job was safe, then the Commission would need to consider the Respondent's argument against Pinto. 76 On the application of the law, the Commission is led to the conclusion that the evidence exists to support the Union's argument that Mr de Santis did indeed, advise Ciro Pinto that his job was safe - without qualification. 77 Accordingly, the Commission is led to the conclusion that the summary dismissal of Ciro Pinto was unfair. Specifically, the Commission finds, having considered all of the evidence, that the summary dismissal of Ciro Pinto was harsh: Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183. 78 The summary dismissal was harsh because Mr de Santis had advised Mr Pinto that his job was safe - without qualification - and did so after having been given an account about the events of that night shift in question. The evidence before the Commission was that Mr de Santis had the authority to make that decision as to terminate or not terminate the services of an employee. He made the decision not to terminate. An employee, in this case Ciro Pinto, is entitled to rely upon that decision about his job security. That decision was given by his manager, who is charged with the authority to terminate or not to terminate the service of an employee. Mr Pinto is entitled to rely upon any assurance about his job security, given to him, by his manager. 79 The next issue for the Commission's consideration is Mr Pinto's substantive remedy of reinstatement: is it impracticable? 80 Mr Pinto has been in the employ of the Respondent for some 27 years. Evidence was given as to his competence as a worker. Mr Drake, the supervisor to Pinto, described Pinto as being a helpful employee and one of the better employees on the crew. (Tr 26/10/07 - p79, line 54 to p80, line 13) Mr de Santis described Pinto as an " okay " employee but later said he would be in the top 20 out of 50 employees. (Tr 09/11/07 - p63, line 10 to 24) When this evidence was being given by Mr de Santis, it seemed to the Commission, based on the demeanour of Mr de Santis, that he was downplaying the competence of Ciro Pinto, as an employee. 81 Finally, on this issue, the summary dismissal letter stated that Mr Pinto showed "genuine remorse" at his Show Cause Meeting. (Ex 14 - Annex VDS 15) 82 There was evidence given by witnesses for the Respondent, opposing the reinstatement of Ciro Pinto. 83 Mr Ralph Keats, Principal Advisor Safety Health and Risk, said that he was against Pinto's reinstatement on the ground of, "impracticable", in so many words. He deposed that it was incompatible with what is required of employees with respect to safe systems of work, to have Pinto as an employee given that he "would deliberately violate safe systems of work…." (emphasis added) There was not one iota of evidence that Mr Pinto had "deliberately" intended to violate safe systems of work. The Commission gives no weight to this assertion. 84 The other witnesses making objections to the impracticability of reinstatement are Messrs Ian Ross (Manager, Iron Making), Vince de Santis (Bulk Operations Manager) and Andrew Drake (Bulk Operations Team Leader). The latter was the immediate supervisor of Pinto. The only other person working with Pinto was de Santis. Their reasons can be summed up as a loss of trust and confidence in Ciro Pinto. 85 The Commission concluded that Mr de Santis had advised Ciro Pinto that his job was safe. That finding negates any claim by Mr de Santis about the impracticability of working with Pinto. Given that Mr de Santis has been charged with the authority on behalf of the Respondent, to decide on whether to terminate or not terminate an employee (in this case, Pinto) then his decision waives any argument about loss of trust and confidence in Ciro Pinto. By deciding not to terminate the employment of Pinto (after being given all of the circumstances about the situation), then de Santis had waived any argument about loss of trust and confidence. 86 Further, the Commission observed both de Santis and Drake in the witness box when they gave their evidence - which was given in the court room presence of Ciro Pinto (at the bar table). The Commission observed that there was no animosity, or of a like nature, displayed by those witnesses when giving their evidence against Ciro Pinto. Mr Ross filed an affidavit but was not required for cross-examination. He did not appear in court. 87 Accordingly, having regard to the evidence on this issue, the Commission finds that the Respondent's claim as to the impracticability of reinstating Ciro Pinto, has not been made out. 88 Given that the Commission will issue an order for reinstatement, without loss of continuity of employment, there remains one final issue for consideration: an order for payment of lost earnings to Ciro Pinto. This was the order sought by the Union, which submitted that if there was to be a punishment for Mr Pinto, then he should lose four day's pay, as did Mr Dilevski, for his part in the incident. 89 For the record, Mr Dilevski was penalised by the Respondent for his role in the incident, where he played the role of "fall-guy" and sent the investigating officers down the wrong path. In doing so, he colluded with Ciro Pinto, who then avoided a drug and alcohol test and went on to operate the 1500 tonne ore - unloader. The penalty imposed on Mr Dilevski was a final warning and a four day suspension. 90 Having considered the evidence surrounding this issue as to whether to grant an order for lost remuneration, the Commission has decided not to make such an order. The awarding of an order for lost remuneration is not a mandatory requirement, once the Commission decides to order the reinstatement or re-employment of an employee: s89(5) of the Act. 91 The reason for the Commission in deciding to exercise its discretion not to make such an order in favour of Ciro Pinto, is because of his conduct surrounding all matters pertaining to his forklift incident. O R D E R S In this matter for reasons outlined herein, I have determined that the dismissal was harsh and I hereby make the following orders. (a) Mr Ciro Pinto is to be reinstated by BlueScope Steel (AIS) Pty Limited into his former position. (b) The employment of Ciro Pinto is to be taken not to have been broken by his dismissal. (c) The orders of the Commission shall take effect within twenty-one days from the date of this decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.