Industrial Relations Commission of New South Wales CITATION: Leonard v. BlueScope Steel Limited [2007] NSWIRComm 1023 APPLICANT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PARTIES: RESPONDENT BlueScope Steel Limited FILE NUMBER(S): IRC 186 and 226 of 2007 CORAM: Connor C CATCHWORDS: termination of employment - steelworks - claim of unfair dismissal - entering an area of the plant chained off as an exclusion zone for forklifts - "cardinal rules" for safety - alleged unsafe work practice - occupational health and safety concerns - claim of reinstatement - compensation for loss of earnings LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 Jankovki v. BHP Port Kembla (1996) 71 IR 313 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 CASES CITED: Kiama Coachlines Case - unreported Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 Pacific Power v. Crump (1993) 48 IR 296 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 State Dockyards Case (1972) 8 AILR Rep.133 Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74 HEARING DATES: 07/05/2007, 08/05/2007, 14/05/2007 DATE OF JUDGMENT: 6 June 2007 APPLICANT Ian Morrison Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES: RESPONDENT Trent Sebbens Blake, Dawson, Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 6 June, 2007 Matter No IRC 186 and 226 of 2007 John Leonard and BlueScope Steel Limited Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and BlueScope Steel Limited DECISION [2007] NSWIRComm 1023 Introduction 1 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Australian Manufacturing Workers Union) lodged a notification of an industrial dispute with BlueScope Steel Limited under S.130 of the 1996 Industrial Relations Act. At issue was the severity of a penalty imposed against Mr John Leonard, a metal tradesman and AMWU member employed by BlueScope Steel in the machine shop of its Port Kembla (Springhill) plant for an alleged breach of the "cardinal rules" for safety in the Port Kembla steelworks. Mr Leonard had entered an area which had been prohibited and chained off whilst a forklift was in operation. Mr Leonard's services have, in fact, been termination as a result of his breach of the "cardinal rules". The matter was allocated initially to Macdonald C but it was more convenient to have the matter re-allocated to me to hold a conference over the matter on Monday, 19 February, 2007. Those proceedings, and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. 2 Conciliation failed to settle the matter and the AMWU lodged an application on behalf of Mr Leonard under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, alleging that Mr Leonard's dismissal was unfair. I set the Part 6 application down for Tuesday, 27 February, 2007 for a preliminary hearing, together with the original S.130 notification and programmed the matter for arbitration in accordance with the standard directions flowing from Practice Direction 17, ie the AMWU was to file and serve its evidentiary material by Wednesday, 21 March, 2007, BlueScope Steel was to reply with its evidentiary material by Wednesday, 11 April, 2007. Any further material by the AMWU was to be filed and served on BlueScope Steel no later than Wednesday, 18 April, 2007. I also issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner. 3 In anticipation of compliance with my directions and that the matter would be allocated to me for the hearing by Registry staff (as it ultimately was), I set aside Monday, 7 May, 2007 and Tuesday, 8 May, 2007 for the hearing. The AMWU filed and served its evidentiary material on time - on Monday, 19 March, 2007. Whilst the evidentiary material in response from BlueScope Steel was not filed and served until Friday, 27 April, 2007, the AMWU was content for the matter to proceed to arbitration on the days set aside for the hearing and it proceeded on those days and a further day - Monday, 14 May, 2007 - for final submissions. 4 Mr Morrison represented Mr Leonard and the AMWU in the hearing. He called Mr Leonard to give evidence. He also called Mr Allan Francis, a tradesman's assistant and forklift driver, and Mr Greg Lancaster, a mechanical tradesman (and AMWU delegate for the Springhill site), to give evidence in the hearing. Mr Sebbens represented BlueScope Steel in the hearing. He called two witnesses: Mr John Penno, the manager of shops and services for BlueScope Steel, and Mr Greg Walker, a mechanical services engineer. 5 A 2006 amendment to the Act has, among other things, brought forward S.146A(2) which invests additional jurisdiction on the Commission with respect to industrial disputes in the light of any restrictions which might otherwise flow in the current uncertain industrial climate, viz: "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." A protocol has been developed for BlueScope Steel's operations in Port Kembla for individual S.146A(2) referral agreements to be completed for particular industrial disputes and in this case BlueScope Steel and the AMWU have completed such a referral agreement for the resolution of the following matter for arbitration: "The dispute concerns the alleged unfair dismissal of Mr John Leonard." 6 The S.130 notification by the AMWU, which was the initial instrument which brought this matter before me, establishes the dispute; the subsequent Part 6 application which the AMWU subsequently lodged on Mr Leonard's behalf provides the full range of remedies to him (and confines him by the operation of S.90 not to proceed elsewhere for a remedy over his dismissal); and the S.146A reference establishes jurisdiction for me to determine the matter by arbitration - see, for instance, my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 3430 and 3487 of 2006 at pp.3 to 5]. Background 7 The "cardinal rules" are set out in a memorandum which has been posted on various notice boards around the steelworks, including the notice board in the machine shop. They are now clearly established as important conditions under which all employees involved in the Port Kembla steelworks are employed. Among other things, those "cardinal rules" require employees to: "...ensure that what WE DO will not cause an injury to others or ourselves, viz: * follow isolation procedures; * clean up as part of the task; * follow standard operation procedures..." And: "...ensure that what WE DON'T DO will not cause an injury to others or ourselves, viz: * touch moving strips; * operate equipment without ALL guards in place; * do anything that is unsafe..." 8 The memorandum concludes by warning that a breach of the "cardinal rules" may "...result in disciplinary action..." - but I note not necessarily dismissal on every occasion. I would expect that BlueScope Steel would exercise some flexibility when it considers disciplining employees for breaches of the "cardinal rules" and not make any blanket decisions that all such employees are automatically dismissed. Each breach of the "cardinal rules" should be considered in isolation and a determination made as to whether or not the offending employee should receive any disciplinary action at all and, if so, what type of disciplinary action should be applied. 9 Mr Penno has indicated in his evidence that BlueScope Steel has identified forklift safety as a critical safety issue in the steelworks because in the level of injuries and fatalities resulting from forklift interactions with pedestrians has been high. He recorded in a written statement that formed the basis of his evidence that: "...within the company's operations there have been approximately 135 fatalities since 1945. Of these 135 fatalities, 6 have been as a result of forklift incidents, mainly forklifts running over pedestrians. The risks of injury and fatality is, and remains, a significant safety risk at the company's sites where forklifts operate. Of significance to the Springhill site, a number of serious incidents, including two fatalities have occurred involving forklifts: (a) in 1984 an employee undertaking sweeping tasks was killed when he was hit by a forklift in the paintline section; (b) in 1994 a security guard was struck by a forklift and fatally injured; (c) in 1995 a significant incident occurred between a forklift and a contractor vehicle near the coupled pickle cold mill which resulted in serious injury to a contractor: the company was prosecuted by WorkCover ... In 2004 at the company's Brisbane logistics terminal an employee was fatally injured when he was run over by a forklift. As a result of this, and previous fatalities, the company initiated a 'Stop for Safety' programme whereby every employee within the company was required to attend an interactive presentation to reinforce safety requirements for employees working near or around forklifts. The programme presentation note other incidents involving forklifts at the company's sites in Australia and overseas. This programme also provided opportunities to employees to identify any new risks or " BlueScope Steel is therefore entitled to regard any breach of safety involving the use of forklifts seriously. However, Mr Morrison has disputed the claim by BlueScope Steel that Mr Leonard was, in fact, involved in any breach of safety. 10 From early in 2006 an exclusion zone has been established at the northern and eastern entrances to the machine shop when a forklift was in operation in that area from time to time. The ground has been painted to indicate the exclusion zone and there is signage at the entry points which confirms, with clear diagrams, that when a pedestrian is in the exclusion zone, no forklift may enter it and when a forklift is "operating" in the exclusion zone, no pedestrian may enter it. There is a footnote to the sign which defines the word "operating" as follows: "...The definition of 'operating' is: driver in, engine running..." 11 More recently - but certainly before the incident of Friday, 9 February, 2007 which led to Mr Leonard's dismissal - there has also been a chain placed across the walkway. Before a forklift may operate in the region outside the machine shop, the forklift driver is required to place two sets of chains across the walkway and they must remain in place whilst the forklift is operating in the exclusion zone and be removed by the forklift driver before he leaves the exclusion zone. One chain is placed across the entrance to the machine shop and another chain is placed at what I estimate as being approximately two metres away along the walkway, aligned with the outside wall of the cleaning bay. Other chains around the exclusion area are permanently in place. 12 There were, in fact, two incidents where Mr Leonard entered a forklift exclusion zone - on Thursday, 25 January, 2007 (for which Mr Leonard was suspended without wages for the remainder of his shift on that day) and Friday, 9 February, 2007 (for which he was ultimately dismissed). The chains were installed on Thursday, 25 January, 2007 immediately after the first incident involving Mr Leonard (and, indeed, in response to it) as an initiative of BlueScope Steel management. The use of the chains was discussed at a meeting of the occupational health and safety on Thursday, 8 February, 2007 (at which Mr Leonard attended). The First Incident 13 In mid-morning on Thursday, 25 January, 2007 Mr Leonard entered a forklift exclusion zone to clean up a puddle of water with an air hose as a blower. Mr Leonard estimated that the size of puddle was two bucket loads, ie a relatively large puddle. There was no chains in place at that time. Mr Francis was the forklift driver at the time. He was removing a pallet from the driveway of the machine shop. He had reversed the forklift from behind the cleaning bay near the toilets into the exclusion zone. Mr Leonard had motioned to Mr Francis, the forklift driver, and yelled at him to "...hold it...". The forklift driver acknowledged his waving and yelling and backed the forklift to the edge of the exclusion zone, waiting until Mr Leonard completed his task. Mr Leonard then entered the forklift exclusion zone to remove the water spill. 14 Mr Andrew Noakes, the safety officer for the metal coating and painting department informed Mr Leonard and Mr Francis that he intended to report the incident. Mr Leonard said to him: "You're joking." Mr Leonard recorded in his witness statement: "...The forklift was approximately 25 metres from me and I could not be sure if its front wheels were actually in the exclusion zone. However, the main point is that both the forklift driver and I were very aware of what was going on and were acting safely. I believe that the forklift itself could not be considered in operation as it was stationary and the driver was very aware of what I was doing and where I was and so would not be moving..." Mr Leonard was suspended for the rest of the shift on that day and Mr Francis received a warning on his personal file. 15 Mr Leonard received a memorandum from Mr Penno, dated Thursday, 1 February, 2007, outlining the outcome of his investigation over the incident, viz: "...Exclusion zones are our fragile defence against serious injury from forklifts and mobile equipment: fragile because they rely on employees to follow the correct procedure. If the procedure fails, employees are exposed to high risk - there can be no grey areas with these zones - people in - forklifts out, forklifts in - people out! During your interview, you stated that you entered the exclusion zone to get the driver's attention and let him know what you intended to do. You also said that you understood that he was about to park the forklift where he did. So you would have known he would come back through the zone. But these comments tell me that you were aware that you were in a forklift exclusion zone while a forklift was operating... I would also ask you to think more on the incident and what was the potential of an accident. During the interview I was a little concerned that you seemed to brush the matter aside as if it was only minor. Forklifts are our highest cause of serious injury in the company and we need to manage the risk..." Nevertheless, from the evidence before me in this hearing, neither Mr Leonard nor Mr Francis appear to me to have been guilty of any serious breach of safety. 16 It is not altogether clear whether Mr Francis first drove his forklift into the exclusion area from out of sight behind the cleaning bay (in which case Mr Leonard should have waited to clean up the spilt water) or whether Mr Leonard had already entered the exclusion zone before Mr Francis had entered it (in which case Mr Francis should not have moved the forklift into the exclusion zone). I believe that it is most likely that they actually moved into the exclusion area at virtually the same time. Mr Francis recorded in his witness statement that: "...Mr Leonard and I knew what was happening. We...were in sight of each other while Mr Leonard removed the water. At no time was the forklift in operation while Mr Leonard was on the walkway. After he was finished and left the area, I continued to remove the pallets..." Moreover, I am informed that more recently the area where Mr Francis was working is no longer regarded as part of the exclusion zone. It is a walkway which provides access to the machine shop and to and from the toilets and has now been accepted as not being part of the exclusion zone. 17 Mr Leonard did not challenge his suspension, although he did not agree with the decision to suspend him for the remainder of the shift. Neither do I. But Mr Leonard "...took it on the chin...", especially since the following day - Friday, 26 January, 2007 - was the Australia Day public holiday and the weekend followed that public holiday, ie he looked at it as an extension of his public holiday and weekend. The Occupational Health and Safety Committee Meeting 18 A meeting of the occupational health and safety committee took place on Thursday, 8 February, 2007. Mr Leonard was asked to attend the committee meeting to discuss the incident on Thursday, 25 January, 2007 and the minutes of that meeting, prepared by its secretary (Mr Walker), record: "...Discussion on recent incident and latest changes. Mr Penno emphasised that the forklift exclusion zone is a 'fragile' control and relies on everyone sticking to the rules of the zone. Following this incident the area has been modified and chains added to ensure that persons keep out of the area when forklift is in operation ..." 19 The operation of the chains was not apparently communicated to any employees who were not present in the occupational health and safety committee. But certainly Mr Leonard was aware of them. But the key words which I have emphasised above - "...in operation...", reflecting as it does the established procedure for the exclusion zone, has some significance for the circumstances surrounding Mr Leonard's dismissal to which I will refer later in this decision. 20 Mr Penno recalled that Mr Leonard made a statement to the following effect at the meeting: "It's all bullshit. The company is going too far with this safety stuff. The other day I was also spoken to about not having gloves on. I was trying to screw a 3/16 inch nut on a thread at the time. I can't believe where the company is going with safety." Mr Penno was surprised by Mr Leonard's comments and he indicated that BlueScope Steel: "...had placed safety first in all respects and the safety protocols are established deliberately to stop injuries. Further, the company accepts the impact of these protocols in respect of the time and cost required to adhere to them..." 21 Mr Leonard indicated in his evidence that his comments at the occupational health and safety committee had not been directed to the question of the exclusion zones for forklift operations, which he accepted as important, but rather the problem he saw with having to wear gloves when he was screwing on the nut. But his comments give me some concerns that he has a far too casual approach to safety issues. By its very nature, a steelworks is a hazardous place to work, and any employee working in it, must be mindful of that fact and appreciate the importance that workplace safety has. It is in that context that the "cardinal rules" emerge as so significant and important not only for BlueScope Steel but for its employees. The Second Incident 22 On Friday, 9 February, 2007 Mr Leonard asserted that he was suffering from diarrhoea and at 8.15am he had an urgent need to visit the toilet. He has no medical certificate to support that claim but Mr Penno does not really challenge his claim in that respect and I have no reason to doubt that Mr Leonard was unwell at that time. He indicated in his written statement that: "...there's a few ways I could have gone - two which would have taken approximately four to five minutes, one through the office upstairs and the other one which I was very reluctant to use as I was unsure that the door was unlocked. But, I must emphasise both very time consuming - time I did not feel I had. So I decided to take the most direct route - the way we always take..." 23 That way was chained off by Mr Francis as a forklift exclusion zone. Mr Francis had removed a pallet from the driveway to enable some contractors to work in the area. Mr Francis had moved the forklift just inside the machine shop. The roller shutter door to the machine shop was up and the area where the forklift was standing was part of the forklift exclusion zone. The forklift was not operating at the time, however. Mr Francis was apparently experiencing some difficulties in starting the forklift and was turning on the LPG gas bottle to get the engine started. 24 Mr Leonard came to the entrance of the machine shop and spoke to Mr Walker who was standing nearby, asking him: "What's going on? Why is the barricade up?" Mr Walker responded by telling him that Mr Francis had been moving pallets into the cleaning bay and asked him if he wanted to leave the machine shop. Mr Leonard informed him that he wished to go to the toilet. He did not tell Mr Walker that he was suffering from diarrhoea at the time, but he claimed that Mr Walker was aware of his discomfort. Mr Walker conceded in his evidence that he believed that Mr Leonard was "agitated". 25 Mr Walker told Mr Leonard: "Well, if you can't wait, talk to Al (Mr Francis) and get him to let you through." Mr Francis had his back to Mr Leonard. There were "...a couple of guys..." (contractors he believes) working at the edge of the exclusion zone working on the racks. Mr Leonard claims that technically they were working in the exclusion zone. Mr Leonard yelled to Mr Francis to get his attention to ask him to lift the chain. Mr Francis did not hear him. Mr Leonard claimed that he asked Mr Walker to lift the chain but Mr Walker refused to do so, telling him to go the toilet another way. Mr Leonard commented in his written statement: "...I was desperate and I made the decision to lift the chain myself, go through and replace the chain. Mr Walker made no attempt to restrain me..." Mr Walker claimed in his evidence that he was surprised and shocked by Mr Leonard's actions. He reported the incident to Mr Penno. 26 Mr Leonard conceded in his witness statement that: "...my experience with similar chains throughout the site is that when you come across them you are to ask people working in the area if you can go through..." He failed to do so on this occasion. His offence was crossing an area which had been chained off. That alone is an action worthy of censure. But as Mr Francis indicated in his evidence, the forklift was not operating , as it is described in the safety signage at the entry point, ie "...driver in, engine running...". Mr Walker claimed that Mr Francis was both working on the gas bottles to the forklift and sitting in it when Mr Leonard lifted the chains to go to the toilet but the engine was not running. Moreover, although the chains were placed across the entrance to the machine shop - the most appropriate place for them, in my opinion - with the exception of the area between the chains outside the cleaning bay building, the rest of the pathway along which Mr Leonard walked to go to the toilet is not actually now in the exclusion zone but adjacent to it. Mr Leonard knew where the forklift was and could no doubt negotiate the area of the exclusion zone between the chains without any real concerns for his safety. The Dismissal 27 Mr Leonard attended a meeting with BlueScope Steel management later on Friday, 9 February, 2007 and was informed that he had committed a serious breach of the 'cardinal rules'. He was suspended and he was subsequently directed to attend a further meeting with BlueScope Steel management on Monday, 12 February, 2007 at which he was dismissed and told to go to his workplace, pick up his tools and clean out his locker. He received a letter terminating his services which was dated Monday, 12 February, 2007 (but already apparently prepared before the meeting) and was signed by Mr Penno. It read as follows: "...On Friday, 9 February, 2007 an incident occurred which is considered very serious in nature by the company. At approximately 8.15am you were in the shops entrance area. The exclusion zone for the forklift was in operation as the forklift was preparing to move pallets in that area. The exclusion zone was clearly chained off and signs were in place. You stated to Mr Greg Walker that you needed to go to the toilet. As you know, when the forklift exclusion zone is in operation, there is another entrance to the toilets via the side of the shops. Mr Walker advised you to speak to the driver if it was urgent so that the exclusion zone could be deactivated. However, you disregarded this instruction, lifting the chain, entered the active exclusion zone and proceeded to the toilets. This is a serious matter and a clear breach of the 'cardinal rules', which states: 'We will care for all people on the plant, including ourselves by:... * not deliberately endangering the lives of anyone, including ourselves; * providing and following identified critical safe work procedures.' As you would know, a breach of the 'cardinal rules' is a dismissible offence. We have conducted a thorough investigation, including interviewing BlueScope Steel wages and staff and contractors involved in activities in the area at the time. After interviewing you (with your representative present) on Friday, 9 February, 2007 when you were suspended for one day following identical breach of the exclusion zone procedure, we are in a position where we have concluded that your employment with the company is no longer tenable. Accordingly, we hereby terminate your employment effective immediately, with notice. You will be paid five weeks in lieu of notice. Your termination takes effect from Monday, 12 February, 2007..." 28 Mr Lancaster attended both the meeting on Friday, 9 February, 2007 and the subsequent meeting on Monday, 12 February, 2007 in his capacity as AMWU delegate. He had objections to the manner in which the meetings were conducted. With respect to the first meeting, Mr Lancaster recorded in a written statement which formed the basis of his evidence that he objected to: "...the line of questioning from Mr Penno about whether anyone close to Mr Leonard had been injured or had died, knowing full well that his mother had recently died. I was simply told to 'butt out'..." And with respect to the second meeting, Mr Lancaster recorded in his written statement that: "...it is my opinion that there was nothing I or Mr Leonard could do to alter the decision to terminate Mr Leonard. Irrespective of the merits of his reasons (for crossing the exclusion zone), BlueScope Steel just did not seem interested..." Conclusion 29 Whilst the AMWU does not challenge the appropriateness of the "cardinal rules" policy of BlueScope Steel and the need to ensure that all employees follow it, Mr Morrison argued that Mr Leonard should not have been dismissed and that, in fact, he had not breached the "cardinal rules" at all. He sought Mr Leonard's reinstatement in employment under S.89(1) and for him to receive compensation under S.89(3) for any loss of earnings from the date of his dismissal to the date of his reinstatement. Mr Sebbens submitted that there were no grounds for my intervention on behalf of Mr Leonard and he emphasised the seriousness of any breach to the "cardinal rules". He stressed that Mr Leonard had entered an area set aside as an exclusion zone for forklifts on two occasions and I note that they were less than one month apart. 30 I can do no more in this hearing than to repeat what I have already said in my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited (at p.130), viz: "...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'...." 31 Quite apart from the fact that it is obviously in an employee's own interests to ensure that he acts safely at work at all times, it is also important for all BlueScope Steel employees to appreciate that they have obligations 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). Any employee who fails, wilfully or negligently, to follow safe work practices leaves himself open to disciplinary action by his employer, including dismissal. In such a case the Commission would be reluctant to intervene to order a remedy for such an employee. 32 There is ample precedent for employees to be dismissed for a serious breach of safety. In the State Dockyards Case (1972) 8 AILR Rep.133 Cansdell CC in the State industrial jurisdiction refused to intervene in support of an employee dismissed for reading a book and going to sleep whilst a floating dock he had been called upon to lower into the water following maintenance work became submerged at the stern. In the 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 for hanging by his hands from a plate being moved by a mobile crane on the ground that he had done a deliberately dangerous act in clear breach of safety rules known to him. In Jankoski v. BHP Port Kembla (1996) 71 IR 313 Murphy J refused to intervene in support of an employee dismissed for filling his hard hat with hot water and throwing it at a fellow employee. 33 Nevertheless, did Mr Leonard's actions on Friday, 9 February, 2007, serious as it was, warrant his dismissal? I do not believe so. In Jovanovski v. BlueScope Steel (AIS) Pty Limited, while I believed that the employee's conduct (walking along an unguarded area without attaching his harness properly) 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 - 28 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...". 34 In that respect, Watson J of the former State Industrial Commission commented in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 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…" Therefore, in assessing whether to dismiss an employee, an employer should take into account all the circumstances surrounding the incident which prompted the dismissal, including any mitigating factors. An employer's failure to do so would constitute an unfairness to the dismissed employees: see for instance the decision unreported decision of the Full Bench of the Commission (Hungerford and Boland JJ and Neal C) on Thursday, 23 March, 2000 in the Kiama Coachlines Case [Matter No. IRC 4936 of 1999]. 35 The first incident on Thursday, 25 January, 2007 when Mr Leonard crossed an exclusion zone led to a suspension for the remainder of his shift on that day (which did not appear to have really caused Mr Leonard any real concern and which he took as more in the nature of an extended holiday). The second incident on Friday, 9 February, 2007 when he crossed an exclusion zone again led to his dismissal - the highest penalty available to BlueScope Steel against Mr Leonard. It seems to me that BlueScope Steel has moved from a fairly light penalty to Mr Leonard for the first incident (which, in any event, I do not believe was justified) to the most severe a penalty in its armoury for the second incident - his dismissal. 36 Mr Leonard had over 30 years of employment with BlueScope Steel and its predecessors - Lysaghts and BHP - at Springhill. His work over that lengthy period of time has remained essentially unchanged, ie for the most part, the repair of machinery in the plant. Mr Leonard recorded in his written statement that: "...Over the last 30½ years, prior to the reasons given for my termination, I have only had one previous formal warning. That was for taking off my hardhat in the shop even though it is done regularly by all of us because of the heat in the tin shed. This occurred in 1999. I have attended many in-house occupational health and safety awareness sessions over the years. However, not on forklift procedures. I have only ever had one workers compensation claim with liability accepted by the company and that was 25 years ago. My workplace has a very good history with regards to workplace injuries - only the types of injury you would expect in a mechanical fabrication shop like hands hit with hammers or dust in peoples' eyes..." 37 Mr Sebbens submitted that Mr Leonard has a history of counselling and warning relating to safety at the workplace. But I consider that Mr Leonard lengthy period of employment has been relatively without incident. Prior to the two incidents which have brought him to my attention in this hearing, there was only formal warnings placed on his personal file (in 1999) for taking off his hardhat. There is nothing adverse recorded on his personal file since 1999. Moreover, I accept that at the time of the second incident on Friday, 9 February, 2007 Mr Leonard was in some discomfort. It may have been better in his interests if he had excused himself from work on that day or sought the assistance of the medical service which BlueScope Steel provides in the medical centre for its employees. 38 In the circumstances, having particular regard to the length of his service with BlueScope Steel, I believe that his dismissal was too harsh. Mr Morrison referred in that respect to the judgement of the High Court (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) in Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 and, in particular, the following comments in the joint judgements of McHugh and Gummow JJ (at p.465): "...It may be that the termination (of employment) is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted..." Mr Morrison claimed that Mr Leonard's dismissal was particularly harsh in that context because of Mr Leonard's age, the difficulty he would therefore face in obtaining other employment and the fact that he has spent his working life in the steelworks. 39 The length of Mr Leonard's otherwise generally satisfactory service with BlueScope Steel and his obvious discomfort when he lifted the chain to go to the toilet were mitigating factors which BlueScope Steel should have given considerably more weight than it did when it decided to terminate his services. As the evidence has emerged in this hearing, I do not believe that Mr Leonard was ever in any real danger when he lifted the chain and walked to the toilet and that, in fact, he was not actually in breach of the "cardinal rules" at all. Furthermore, I believe that there is also an obligation placed on BlueScope Steel to ensure that at all times there is easy access to toilets for its staff which are not restricted by chained off areas. Whilst there were other toilets which Mr Leonard would have been able to attend, it may not have been possible for him to get to them quickly, which was his need at the time. 40 Reinstatement under S.89(1) remains the primary remedy for an unfairly dismissed employee [Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115]. I consider that Mr Leonard's reinstatement is justified in the circumstances. Mr Morrison has also pressed for an order under S.89(3) that BlueScope Steel pay to Mr Leonard an amount: "...that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed..." 41 In the circumstances, whilst I have formed the view that Mr Leonard's conduct on Friday, 9 February, 2007 was not a breach of the "cardinal rules", he was nevertheless unwise to lift the chain that had been put in place for his own protection. It still remained a breach of a sensible safety rule imposed by BlueScope Steel. Mr Walker indicated in his evidence, once the chain went up, the exclusion zone was in force. There should be no confusion on that point and to leave it to individual employees to chose when they may enter a chained off exclusion zone is a recipe for someone to be injured. There should really be no exceptions made to that safety procedure. Mr Penno described Mr Leonard's actions in his evidence as a "...deliberate breach of the exclusion zone...". And so it was. 42 Therefore, some penalty should, in my opinion, still apply to him and I am not prepared to recompense him under S.89(3) for the loss of his entire earnings between the date of his dismissal to the date of his reinstatement. Based on the figure of $1,440.00 which the AMWU recorded in the Part 6 application as Mr Leonard's average weekly earnings, I believe that he should be paid the sum of $6,500.00. 43 In the circumstances, I make the following orders: O R D E R 1. Bluescope Steel Limited shall: (a) reinstate Mr John Leonard in employment to his former position; (b) pay him the sum of $6,500.00 within 28 days; and (c) take his employment not to have been broken by his dismissal. 2. This order shall take effect on and from Wednesday, 6 June, 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.