Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2008] NSWIRComm 1060 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 50 of 2008 CORAM: Connor C CATCHWORDS: industrial dispute - steel industry - plate rolling mill - mistakes in the performance of work - demotion of employee - claim for the preservation of previous wage in new position - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Baker v. Australian Workers Union [2005] NSWIRComm 1225 Gilmour v. George Weston Foods [2006] NSWIRComm 1081 Government Railways and Tramways (Salaried Officers) Award Case (1934) AR 5 CASES CITED: John Lysaght (Australia) Limited v. Federated Ironworkers' Association (1972) AILR Rep.517 Mann v. Side Cafes Pty Limited - unreported Russian v. Woolworths (South Australia) Pty Limited (1995) 62 SAIR 806 Schuck v. Ipec Transport Group (1994) 36 AILR Rep 41 HEARING DATES: 30/06/2008, 04/07/2008 DATE OF JUDGMENT: 24 July 2008 APPLICANT Dave Hancock Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Michael Mead Australian Industry Group DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 24 July, 2008 Matter No IRC 50 of 2008 Australian Workers Union and BlueScope Steel (AIS) Pty Limited Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel (AIS) Pty Limited DECISION [2008] NSWIRComm 1060 Introduction 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers' Union has lodged a notification of a dispute with BlueScope Steel (AIS) Pty Limited. The S.130 notification concerns Mr Russell Kilby, who had formerly been engaged in the plate rolling mill - for 24 years - but who was removed from his position and ultimately accepted a transfer to another job in the processing section of the plate rolling mill (under duress according to the AWU, ie fear of losing his job). The S.130 notification describes the industrial dispute in the following manner: "...Employee accepted a position outside his department under duress (fear of being terminated). There is a significant loss of wages..." I set the matter down for a conference on Monday, 21 January, 2008. Those proceedings and all subsequent proceedings with respect to this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. 2 Mr Kilby's current (and former) position is covered by the terms of the BlueScope Steel (AIS) Pty Limited Port Kembla Steelworks Employees Award. By a 2006 amendment to the State IR Act, the BlueScope Steel Award has been converted into an enterprise agreement and, as such, becomes a "preserved State agreement" [PSA] under the 2005 Federal Workplace Relations Amendment (Work Choices) Act. Clause 11, Retention of Rate, of the BlueScope Steel Award provides for the retention of rates for employees in certain specified circumstances. Under Clause 11 a steelworks employee with two years or more of service in the steelworks and who, as a result of organisational change (ie the rationalisation of operations, the introduction of technological change or changes in work practices) or market change affecting operations, is transferred to work in a classification carrying a lower total rate of pay is entitled to retain the higher rate of pay applicable to his previous classification. Also for twelve months after the transfer such an employee remains entitled to receive any increase in the total remuneration of his previous classification and for the second year after the transfer he remains entitled to receive 50% of any increase to the total remuneration of his previous classification [Clause 11.1.1 (a) and 11.1.2(a)] 3 What is of concern to Mr Kilby is the level of remuneration which he now receives in his position. Mr Kilby asserts that the total remuneration he has received has dropped $85.00 each week, ie he has been demoted in employment. The AWU has asserted that in the circumstances that demotion was not justified and was unfair to Mr Kilby. It has sought to preserve his former remuneration (but it has not sought Mr Kilby's return to his former position). BlueScope Steel argues that it was under no obligations to preserve Mr Kilby's level of remuneration with his new job, that the transfer of Mr Kilby was simply an exercise of management prerogative and was, in all the circumstances fair. In particular, BlueScope Steel assert that the circumstances surrounding Mr Kilby's transfer do not fall under Clause 11. 4 The matter remained unresolved following conciliation. I issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner, programming it for arbitration. Consistent with the protocol for the Port Kembla steelworks, a referral agreement in terms of S.146A has been prepared to bring this matter before me for arbitration. That S.146A referral agreement is in the following terms: "....The dispute concerns an employee's base grade was not maintained following acceptance of a position in plate processing which has resulted in reduced earnings..." 5 I set the matter down for a mention for programming on Monday, 7 April, 2008 and, ultimately, for arbitration in a hearing on Friday, 9 May, 2008. That day was vacated at the request of BlueScope Steel's representative (Mr Mead) with the concurrence of the representative of Mr Kilby and the AWU (Mr Hancock) and the hearing was adjourned until Monday, 30 June, 2008 and Friday, 4 July, 2008. In the hearing Mr Hancock called Mr Kilby to give evidence and Mr Mead called Mr David Otsyula, the manager of plate rolling and roll shop, and Ms Karen Styles, the human resources adviser for strip and plate, as witnesses in the hearing. Background 6 This matter has been the subject of earlier proceedings before me [Matter No.IRC 1299 of 2007] following notification of the matter as an industrial dispute under S.130 by the AWU. Following an incident on Sunday, 29 July, 2007, which I will discuss in more detail later in this decision, Mr Kilby was suspended (on pay) for five days and subsequently, whilst he remained employed on his existing rate of pay and returned to work on day shift in the plate rolling mill, he did not return to his previous position but was instructed to devote his entire time in seeking alternative employment, either inside the steelworks or outside it. BlueScope Steel had declined his requests to re-engage him in his former position and that position was subsequently advertised and filled (internally) by another employee. 7 The AWU argued in the earlier proceedings that, in the circumstances, there was a threat of dismissal against Mr Kilby. But Mr Kilby remained on the payroll whilst he continued to be engaged in seeking other employment. Until that process had been completed, I did not believe that it could properly be argued that there was an actual threat of dismissal for Mr Kilby. A threat of dismissal is a concept on which this Commission may act under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] by virtue of S.83(5)(a). The remedy for an employee who faces a threat of dismissal is contained in S.89(7), viz: "In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat." The remedy is therefore injunctive in nature. But, as I indicated in my unreported interlocutory decision of Friday, 16 December, 2005 in Baker v. Australian Workers Union [Matter No.IRC 5916 of 2005 at p.2]: "...for the threat to be sufficient to ground that remedy, in my opinion, it must be certain, imminent and unconditional..." 8 Initially, that arrangement with Mr Kilby was to extend for a period of four weeks after which time the position was to be reviewed. That four week period expired and was extended to permit Mr Kilby to continue his search for alternate employment. During that period of time the S.130 notification was the subject of conference proceedings before me on Tuesday, 14 August, 2007, Monday, 3 September, 2007 and Monday, 8 October, 2007, Tuesday, 30 October, 2007, Friday, 2 November, 2007 and Monday, 3 December, 2007. 9 The AWU was concerned that Mr Kilby was being placed in limbo during this time but the extension of the arrangement for Mr Kilby can be looked at in another way: that BlueScope Steel was attempting to give Mr Kilby every opportunity to obtain alternative work. Nevertheless, I became concerned over the delay in finalising this matter and I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, with a view to advancing this matter by arbitration and bringing what appeared to me to have developed into a stalemate to an end. However, that arbitration did not occur. It was not necessary. Mr Kilby was ultimately offered a new position in the processing section of the plate mill on Monday, 10 December, 2007 and he accepted that offer. Although the discussions over his appropriate wage level had not been resolved by that time, I nevertheless believed that the matter had been clarified to the extent that I granted the AWU leave to discontinue it in accordance with Rule 138. The current remuneration paid to Mr Kilby has now become an issue in the separate S.130 matter now before me, however. The First Incident 10 There are, in fact, two incidents on which the decision of BlueScope Steel management to demote Mr Kilby appear to be primarily based. The first such incident occurred on Saturday, 31 March, 2007. At that time Mr Kilby was working as a rolling mill operator in the plate mill. He recorded in the written statement which formed the basis of his evidence that: "...At approximately 2.00am I had just returned from crib. I was sitting in the operator's chair waiting for a plate to come down to roll. There were two slabs on the hold table. When the timer timed down, the plates came into the mill and I did not see that there were two slabs doubled up. Consequently, when I checked the width, I couldn't see them in the side guard. All I saw was the glow of the red hot slabs. The machine did the measurement and I hit the auto reversal button which is the automatic button and the slab went into the mill. Because there were two slabs doubled up, there was a big bang and the mill stopped. There was damage caused because of that incident. I was given a drug and alcohol test which was negative. I went back to work and there was an investigation started..." 11 Mr Otsyula indicated in his evidence that the incident resulted in significant damage to equipment, lost production and mill downturn - estimated at in excess of $250,000.00. Mr Hancock raised with Mr Otsyula when he cross-examined him that overlapping plates had often been a problem in the plate rolling mill to the extent that at present the plant equipment is being modified to assist in eliminating this problem. Nevertheless, the incident constituted a serious mistake by Mr Kilby and he has conceded to Mr Otsyula when he investigated the incident, and to me in his evidence, that it was his mistake. 12 Mr Kilby's employment in the steelworks has not been without incidents and he has received warnings, both verbal and formal, in the past. Consequently, on this occasion, he received a final warning over the incident on Tuesday, 11 April, 2007, viz: "...This letter serves as a final warning for poor performance. On Thursday, 31 March, 2007 your inattention in checking the actual position of bars within the rolling mill resulted in extensive damage to Stand 2, a total of 21 hours of production delays and the loss of three plate patterns. This is a costly mistake and one that I cannot allow to happen again... I remind you that you have been warned for similar incidents in the past. In particular, on Friday, 30 September, 2005 you received a written warning from the manager for inattention to duty that caused the loss of three plate bars. You also received a verbal warning from the manager on Thursday, 16 June, 2005 due to you being distracted whilst operating the hot leveller that resulted in a one hour production delay. In addition, you received a written warning from the manager for poor timekeeping on Thursday, 30 June, 2005 after leaving work 50 minutes early without seeking permission. As a consequence of your poor performance on Thursday, 31 March, 2007 you have been suspended for five shifts [Wednesday, 4 April, 2007, Thursday, 5 April, 2007, Friday, 6 April, 2007, Monday, 9 April, 2007 and Tuesday, 10 April, 2007]. On your return on Wednesday, 11 April, 2007 you are to present to me a written commitment explaining how you are going to avoid a reoccurrence of the incident that led to this disciplinary action. You are then to work on a day shift basis until you can pass reassessment as a Stand 2 operator and also present to me a plan on what you will do at each work station to ensure you do not have a similar incident to the one on Thursday, 31 March, 2007. If I have need to talk to you at anytime within the next two years [until Saturday, 11 April, 2009] for poor performance, including damage to plant or product, safety breaches, poor timekeeping or attendance or any other issue, it will result in severe disciplinary action up to and including the termination of your employment... I urge you to take this warning very seriously and make every effort to improve and correct your behaviour. I cannot tolerate poor performance from any employee..." 13 Mr Hancock pointed out in his submissions that there were some discrepancies in the warning letters that Mr Kilby had received and the entries placed on Mr Kilby's history card. For instance, on Friday, 30 September, 2005 a formal warning Mr Kilby allegedly received mentions an incident on Thursday, 16 June, 2005 involving his alleged "...inattention to duty causing loss...". Mr Kilby claimed that he never received that formal warning and the history card entry for Thursday, 16 June, 2005 refers to a verbal warning Mr Kilby received for "...repeatedly leaving work 20 to 40 minutes early when he is relief man...". 14 Mr Mead disputed that Mr Kilby did not receive the formal warning of Friday, 30 September, 2005. Moreover, whilst there may be some inconsistencies in the contents of the warning letters Mr Kilby received and the employment record of Mr Kilby in his history card, as Mr Otsyula indicated in his evidence, that did not alter the fact that Mr Kilby's employment record was not without blemish, eg absenteeism, need to exercise more care in his work, taking hot beverages into the pulpit where he works and placing them close to sensitive equipment and leaving work early. 15 In any event, as I indicated earlier in this decision, Mr Kilby accepted that he was at fault over the incident and the disciplinary action taken against him. Following Mr Kilby's resumption of work on Wednesday, 11 April, 2007 his performance at work was to be reassessed to ensure that he was performing his role in the plate mill properly. I would think that such an incident would have possibly led to the dismissal of the offending employee. Certainly, Mr Kilby thought that was a likely eventuality for him and he was fearful of losing his job. But Mr Otsyula recognised Mr Kilby's remorse over the incident and, notwithstanding the negative issues recorded in his employment history, he recognised that Mr Kilby had a strong work ethic and that the action he took was not intentional. He adopted a lesser penalty - suspension for four shifts and a return to work on certain conditions which Mr Kilby accepted, viz: "....I have to pay more attention to what is in front of me. I must check the slab in the side guards to check that there is only one slab in the mill area before I push auto reversal and that everything is set up correctly and that there is nothing than can cause damage to the mill... " The Second Incident 16 On Wednesday, 25 July, 2005 Mr Otsyula had cause to speak to Mr Kilby when the bunding in the roll shop had been damaged by a crane that Mr Kilby had been operating. Investigations revealed that the bunding had been placed too close to the area where the crane was in operation and Mr Otsyula did not hold Mr Kilby responsible for the damage, informing him of that fact. However, on Sunday, 29 July, 2007 there was a further incident involving Mr Kilby when he accidentally put a cold calibration plate into the mill. He ran the calibration plate 25mm thick x 2000mm wide into the a mill gap of only 15mm. On this occasion there was neither damage to the plant nor any real delay in production, however (although the plates were destroyed). 17 Mr Kilby recorded in his written statement that: "...I had done the side guard calibration on the delivery side of the mill. I put my finger on the button to raise the mill. I made sure that it had gone up. I put my foot over on the controls and ran the slab back into the mill. The slab took a bite and actually went into the mill, which is a rarity. It doesn't happen all the time but has happened to other operators. Normally, it will just hit the mill and bounce back off. But this time it went into the mill. That has not only happened to me, but it has happened to other operators as well. This time it went into the mill by about a meter and distorted the plate. There was no lost time over this incident as I stopped the rolls and ran the screws up and ran the plate to the entry side of the mill and then calibrated the entry side guard and removed the plate and carried on..." 18 Mr Kilby again conceded his error. He claimed that he pressed the wrong button on the panel in the pulpit where he was working. He was directed to take a drug and alcohol test and he did so after an hour when he was relieved. The test proved negative. Mr Kilby thought that it was odd that he had been directed to take a drug and alcohol test because he did not regard the incident in which he had been involved as significant. (According to the established drug and alcohol policy of BlueScope Steel, drug and alcohol testing is mandatory for an employee if there has been a "significant incident".) 19 In the afternoon of Monday, 30 July, 2007 Mr Kilby received a telephone call at his residence informing him not to attend work on his next shift on that day but present himself to a meeting. Mr Otsyula became concerned over what he regarded was Mr Kilby's lapses of concentration. He spoke to Mr Kilby over the incident on Tuesday, 31 July, 2008 and a more formal meeting took place on Wednesday, 1 August, 2007. At the meeting Mr Otsyula informed Mr Kilby that he viewed this incident as serious. Mr Otsyula said words to the following effect at the meeting: "I have lost faith in your ability to not cause any further damage in the rolling mill. I do not think that I can have you in the rolling mill any further as this may do long term damage and result in further cost. I want you to think about what I am saying overnight and come and speak to me tomorrow about what this means for your future with the company." And at a subsequent meeting on Thursday, 2 August, 2007, Mr Otsyula said: "I have thought about this situation again and I have decided that I just cannot risk you being in the mill. It is clear that you cannot come back into this area. I have decided that you are to remain employed with us but that your task will be to come to work and seek another position, either internally or externally. We will review this situation in four weeks time." The Outcome 20 Mr Kilby's attempts to obtain alternate employment in the steelworks - in the slab yard, the coke ovens and the BOS - were unsuccessful. On Wednesday, 19 September, 2007 Mr Kilby asked Mr Otsyula to reverse his decision not to allow him to work as a rolling mill operator. Mr Otsyula declined that request. Instead, until he took up the plate processing role, he remained employed on his previous rate of pay which ceased when he took up his current position. 21 Mr Kilby remained unsatisfied with the level of remuneration he received in his new plate processing position. According to Mr Otsyula, he had explained to Mr Kilby from the outset that, whilst the level of remuneration he received would remain unchanged whilst he looked for alternative work, when he accepted a new role in the steelworks, it could not be guaranteed that he would preserve that level of remuneration. Mr Kilby disputes that claim but Mr Otsyula's position had been confirmed by him in a letter he wrote to Mr Kilby dated Sunday, 9 September, 2007, viz: "... As a result of our review of your situation on Monday, 3 September, 2007, I wish to advise that your current arrangements for seeking an alternative position are to continue. I remind you that your position has not been made surplus. Therefore the Retention of Rate provisions under the BlueScope Steel (Port Kembla Steelworks) Employees Award do not apply. Therefore, if you are successful in gaining another position, your rate of pay will reflect the rate of the new role. These arrangements will be reviewed again on Tuesday, 2 October, 2007. Failure to actively seek a new role or if you are unsuccessful in gaining an alternative role, your continued employment with BlueScope Steel will also be reviewed..." 22 Ms Styles also spoke in her evidence of a meeting which she had with Mr Kilby (and Mr Hancock) after the plate processing role was offered to him. She recorded in an affidavit that formed the basis of her evidence that: "...during that meeting I recall explaining...that Mr Kilby had been offered the highest rate possible in that area [Matrix Level 12]. The only position in plate processing equal to Mr Kilby's previous level of pay [Matrix Level 15] is that of senior operator and these roles are 'by appointment', which means there are a set number of positions at this level and when there are vacancies, applicants are required to apply and participate in a selection process. Mr Kilby's letter of offer also required that he achieve the level of skills equivalent to this role [ie 8 skills] within a two year time frame. The rate he is currently paid is normally payable for people who have already achieved the skills that Mr Kilby now needs to reach in the next two years. Mr Kilby has requested that we 'green ink' his rate which is where a rate is retained in circumstances where a position has become redundant. The position in plate rolling (which Mr Kilby previously occupied) has not been made redundant and therefore I say that this provision is not relevant and does not apply..." Ms Styles indicated that the appropriate level for the work which Mr Kilby was now performing, having regard to Mr Kilby's level of skill as far as that work was concerned, was Matrix Level 8 but, having regard to Mr Kilby's general experience in the steelworks and to avoid too severe a reduction in remuneration to him it was determined to place him on Level 12, pending his obtaining the necessary qualifications for that level. At earlier meetings the AWU had proposed as a compromise Level 14 for Mr Kilby but that was rejected by BlueScope Steel management. Conclusion 23 Mr Kilby is not seeking to be reinstated to his previous position but he is seeking to preserve the wage he formerly received in that position in his current role. Mr Hancock has submitted that he should remain in his current position but receive remuneration at his former Level 15 in the matrix and be reimbursed for lost income from the time of his demotion to the time of this decision. He also seeks the deletion of the warning notices from Mr Kilby's employment record which he has challenged in this hearing. Mr Mead argues that the removal of the warning notices from Mr Kilby's personal file went beyond the scope of the current proceedings and the S.146A referral agreement from which I derive jurisdiction. That is no doubt correct. But insofar as there are errors in the employment record of Mr Kilby, I would expect that BlueScope Steel would correct them. 24 As I indicated earlier in this decision, Clause 11, Retention of Rate, of the BlueScope Steel Award provides for the rates of pay for an employee transferred to a lower paid position as a result of changes to the organisation of the steelworks or the market to preserve their previous remuneration from the higher paid position they formerly occupied. But as Mr Otsyula and Ms Styles indicated in their evidence in this hearing, and as Mr Mead submitted, that was not the position with Mr Kilby's transfer. It did not arise out of any organisational change or the introduction of new technology. I perceive that it was ultimately of a disciplinary nature, based on work performance. 25 An employer is always entitled to retain the right to move staff to other positions within its organisation within the range of work expected of that staff, provided the transfer is consistent with the contract of employment under which that employee is engaged and any industrial instrument covering the employment. And, when an employer is considering the disciplining of an employee, it is always an option for him to consider the lesser penalty of demotion over the more severe penalty of dismissal. It is proper that he does so. It would be a retrograde step if the only remedy available to discipline any employee was dismissal. 26 Nevertheless, insofar as the transfer of Mr Kilby from his plate rolling mill operator position to his position in the processing section of the plate mill involves a reduction in his remuneration it represents a demotion to him. I am satisfied that the demotion of an employee, as distinct from his dismissal, still remains actionable under S.130 (and S.146A) on notification by a trade union. In the Government Railways and Tramways (Salaried Officers) Award Case (1934) AR 5 the Full Bench of the former State Industrial Commission (Browne P, Cantor and Webb JJ) referred to the definition of "industrial matters" at that time, commenting (at p.7) that: "…we see no reason why these words should limit the jurisdiction of the Commission to award reinstatement to cases where the employee for whom the award is sought had been dismissed. We think the jurisdiction extends equally to the case of an employee who has been reduced (in rank, position or grade)…" 27 Indeed, there is a considerable body of authority to support the contention that in certain instances a demotion may actually constitute a dismissal of an employee [Schuck v. Ipec Transport Group (1994) 36 AILR Rep. 41 and Russian v. Woolworths (South Australia) Pty Limited (1995) 62 SAIR 806]. In my unreported decision of Tuesday, 7 May, 1996 in Mann v. Side Cafes Pty Limited [Matter No.IRC 413 of 1996] I commented (at pp.3 and 4): "…(the respondent employer) asserted in the hearing that, since (the applicant employee) had been offered alternative work and had declined that work, the termination of his services was not a dismissal for the purposes of (the equivalent to Part 6 in the 1991 Industrial Relations Act). The fact is that the transfer of (the applicant) to the work at the Narrabeen cafe involved a substantial reduction in salary for him, ie it was, in effect, a demotion. Is such a demotion categorised as a dismissal…? I believe that it was… Much now depends upon whether a demotion constitutes such a break in the contract of employment, and its replacement with another contract of employment, so as to constitute a dismissal… That will depend upon the facts of each case. In this case I hold no doubts that it did. (The respondent) was unilaterally changing the terms of the original contract of employment for (the applicant) to (his) detriment and against (his) wishes…" 28 Mr Hancock also referred me to the unreported decision of Cambridge C on Thursday, 18 May, 2006 in Gilmour v. George Weston Foods [Matter Nos.IRC 5092 and 6169 of 2005] where the demotion of a truck driver following a motor accident in the truck he was driving - leaving the truck in gear whilst it idled so that it crashed into an awning of a nearby building - was held to be a dismissal for the purposes of Part 6. Cambridge C had this to say (at pp.11 and 12): "....Upon careful analysis, the unilateral, contested, variation to the applicant's terms and conditions of employment that were attached to his reassignment into the packing, unloading and loading position, constitute a dismissal for the purposes of S.84(1)..." But the question remains whether Mr Kilby's performance at work was such as to justify his demotion in the first place or, indeed, any disciplinary action at all against him. Mr Kilby has done nothing intention. I accept that both incidents were accidents on his part. But clearly, Mr Otsyula had lost confidence in Mr Kilby in the senior position he occupied based on what he regarded as his lapses in concentration in work that demanded full attention at all times. 29 As far as the first incident on Saturday, 31 March, 2007 when Mr Kilby allowed two slabs doubled up to pass through the mill and caused in excess of $250,000.00 in damage to equipment, lost production and mill damage, that was a serious incident and one with respect to which Mr Kilby has admitted fault. But that incident had led to a final warning to Mr Kilby and a five day suspension. That may have been the end of the disciplinary action taken against Mr Kilby at that time, as far as he was concerned. However, Mr Kilby's work performance was still the subject of review for a period of two years to ensure that he was performing his role in the plate mill in a satisfactory manner. And, in any event, that first incident does not simply vanish. It still becomes part of Mr Kilby's employment record and may have an influence at a later time if there is any further incident which warrants his censure. It clearly has still influenced Mr Otsyula in this case. Mr Mead suggested in his submissions that due weight should be given to Mr Kilby's employment history in considering whether or not he had been treated fairly. 30 For instance, in John Lysaght (Australia) Limited v. Federated Ironworkers' Association (1972) AILR Rep.517 Sheppard J of the former Commission commented that a past act of misconduct: "...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..." 31 It is the second incident on Sunday, 29 July, 2007 when Mr Kilby accidentally made a mistake over the calibration of the plate in the mill that ultimately led to Mr Otysula finally losing confidence in him in performing his former role as a plate rolling mill operator: it appears to have been the straw that broke the camel's back. The mistake Mr Kilby made at that time may have been a minor one, as far as he is concerned. It was not, as far as Mr Otysula is concerned, however. It may have been a mistake frequently made by other plate rolling mill operators, as Mr Kilby indicated, but it was a mistake nonetheless, whilst Mr Kilby remained in a period of review, and what finally moved Mr Otysula to believe that Mr Kilby should be excluded from the position of plate rolling mill operator, which it has to be acknowledged is a senior position on the wage matrix [Level 15] with a commensurate level of responsibility. 32 In Gilmour v. George Weston Foods Cambridge C described the demotion of the employee as a "...punishment without end..." and pointed out (at p.13): "....In circumstances where an employee has had twenty years of unblemished employment, the applicant has been understandably aggrieved by a punishment that provides no identified prospect of ever finishing. Although the Commission can readily appreciate the concern that the employer would have with the nature of the truck accident incident, a punishment with no perceivable end is, when considered objectively, likely to be harsh... There could be little doubt that the penalty must be held to be harsh in these circumstances. Consequently, a case has been established to require the intervention of the Commission..." And later Cambridge C commented (at p.15): "....The actions of the employee regarding the accident were clearly negligent. However, these negligent actions were not wilful and the employee has a very long and commendable employment record. In such circumstances, the employer's decision to remove the applicant from his truck driving duties was reasonable and appropriate, except that it provided for no prospect of return to the truck driving duties. The endless characteristic of the penalty that was provided to the employee was harsh and unreasonable in the circumstances..." 33 Mr Hancock relied on those comments and claimed that they were equally applicable to Mr Kilby who, for practical purposes, had no chance to improve his position. I do not share Mr Hancock's view, however. The evidence of Ms Styles, particularly, suggested to me that Mr Kilby's current level of remuneration may be far from permanent and that he may still progress through the wage levels as he acquires further skills and qualifications. I do not believe that there is anything permanent in the current arrangements for Mr Kilby. 34 In those circumstances, I see no grounds for my intervention in support of Mr Kilby in these proceedings and I decline to do so. Of course, that does not deny Mr Kilby the right to make application for other positions in the steelworks as and when they may arise from time to time but I do not see it as appropriate to make special arrangements to pay Mr Kilby a personal wage above the substantive wage for the position he now occupies. 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.