Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1039 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 3470 of 2006 CORAM: Connor C CATCHWORDS: industrial dispute - suspension from work - notation placed on employee's file - absence from work due to illness - need to inform supervisor of absence - referral agreement - procedure adopted to conclude matter - nature of a frivolous or vexatious claim - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Attorney General v. Wentworth (1988) 14 NSWLR 491 CASES CITED: Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 General Steel Industries Inc v. Commissioner for Railways (1964) 112 CLR 125 Rudder v. Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 HEARING DATES: 02/07/2007 DATE OF JUDGMENT: 25 July 2007 APPLICANT Wayne Phillips Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Michael Patti BlueScope Steel (AIS) Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 25 July, 2007 Matter No IRC 3470 of 2006 Australian Workers Union and BlueScope Steel (AIS) Pty Limited Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 re suspension of an employee in the rail operations department Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel (AIS) Pty Limited DECISION [2007] NSWIRComm 1039 Preliminary 1 The Australian Workers Union has lodged a notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 concerning the suspension of Mr Paul Cook, a locomotive driver employed in the rail operations of BlueScope Steel (AIS) Pty Limited for two shifts for leaving work early on Wednesday, 25 October, 2006. Mr Cook claimed that he was ill but BlueScope Steel is particularly concerned over Mr Cook's absence from work because of the important role that rail operations has had for the entire operation of the steelworks and the need for those operations to be properly manned at all times. The AWU has sought that Mr Cook be paid for the two shifts which he forfeited as a result of his suspension and that any reference to this incident be removed from his personal file. 2 The matter was allocated to me and I set it down for a conference on Tuesday, 14 November, 2006. The parties at that time requested that I adjourn the proceedings. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. I set the matter down for a mention on Tuesday, 14 November, 2006. I adjourned the proceedings again for mentions on Tuesday, 21 November, 2006. There was no appearance by the AWU at that time. I adjourned the matter for a further mention on Tuesday, 5 December, 2006. 3 A referral agreement in accordance with S.146A (and Practice Direction No.18) has been completed to reflect the protocol developed for the Port Kembla steelwork operations. It refers for conciliation or arbitration the following matter: "...Employee at the rail operations department suspended for two shifts for leaving shift early due to illness..." It is a clause of the referral agreement (Clause 7), consistent with that protocol that, unless the parties agree to waive the requirement: "...an application for leave for the matter to be arbitrated will be heard by a Presidential member of the Commission..." BlueScope Steel had sought to refer the matter in accordance with that clause. 4 Alternatively, I suggested that the parties may proceed in a more informal manner before me for conciliation and I set the matter down for a conference on Tuesday, 12 December, 2006 for that purpose. Certainly, in the conciliation phase of any matter before me I am empowered by S.134(2) to make such recommendations or directions as I consider appropriate to resolve this matter, reserving in the process, if necessary, the rights of either party provided in S.173 to have any subsequent arbitration of a matter heard by another member of the Commission. 5 Moreover, by virtue of S.162(2)(h) it is always open to the Commission to: "...dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious..." That therefore means in the conciliation phase, prior to the matter being progressed to arbitration. BlueScope Steel had asserted that the AWU claim on behalf of Mr Cook was without any merit. But if that is so, it does not necessarily follow that the claim may be frivolous or vexatious. 6 A frivolous or vexatious action is one where the party bringing it is not acting in good faith and merely seeks to annoy or embarrass an opponent or which is not designed to produce any practical result. Roden J of the State Supreme Court in Attorney General v. Wentworth (1988) 14 NSWLR 491 commented that a proceeding was vexatious if it was instituted with the intention of annoying or embarrassing a respondent, if it was brought for collateral purposes and not for having the court adjudicate on the issues or, irrespective of motive, it was so obviously untenable or manifestly groundless as to be utterly hopeless. The test to be applied to determine a frivolous or vexatious claim has variously been described as being so obviously untenable that it cannot possibly succeed, manifestly groundless or so manifestly faulty that it does not admit of argument [General Steel Industries Inc v. Commissioner for Railways (1964) 112 CLR 125 at p.129]. Whilst, for reasons I will outline shortly, I am satisfied that the AWU claim on behalf of Mr Cook is without merit and must fail, I am satisfied that it is not a frivolous or vexatious claim. 7 In any event, following my suggestion, the parties were initially content to proceed to resolve this matter by conciliation, with the matter being concluded with my recommendation concerning the AWU claim on behalf of Mr Cook. However, Mr Phillips, who had carriage of the matter for the AWU, was not able to attend the proceedings on Tuesday, 12 December, 2006 due to his ill health and subsequent hospitalisation. I adjourned the matter for further proceedings on Monday, 12 February, 2007, Monday, 26 February, 2007, Friday, 23 March, 2007 and Wednesday, 28 March, 2007. BlueScope Steel had in the meantime renewed its request that the matter be referred to a Presidential Member of the Commission to consider the question of leave. I made directions for written submissions to be provided by the parties and referred the matter for that purpose. 8 Grayson DP granted leave for the arbitration of the matter in chambers and the file was returned to me for arbitration which occurred on Monday, 2 July, 2007. In the proceedings Mr Phillips represented the AWU and Mr Cook and Mr Patti represented BlueScope Steel. The matter proceeded in an informal manner on the basis of uncontested witness statements provided by Mr Cook and Ms Samantha Knight, the rail transport manager (iron and slab). The parties had agreed to accept my recommendation concerning the matter but in the circumstances I believed that a more formal decision by me was appropriate. The Circumstances of the Suspension 9 Mr Cook commenced his 12 hour night shift at 7.00pm on Tuesday, 24 October, 2006. At approximately 12.30am on Wednesday, 25 October, 2006 he was driving a locomotive when he informed Mr Shane Doyle, his team leader, that he was feeling unwell. Mr Doyle asked Mr Cook if he wanted to attend the ambulance station but he declined because, as he recorded in his written statement: "...they only give you Panadol, which I normally use myself anyway..." 10 Mr Cook claimed that his headache remained but he continued at work up to 3.20am (according to BlueScope Steel) or 4.00am (according to Mr Cook). At that time Mr Tony Shepherd, his work allocator, spoke to him over the radio and told him that he was required to change jobs and work in another area of the plant. Mr Cook informed Mr Shepherd that he was ill and that he would be going home. Mr Shepherd instructed Mr Cook to inform Mr Doyle of his intention to leave work and Mr Cook told Mr Shepherd that he would do so. 11 The radio conversations between Mr Cook and Mr Shepherd were recorded and transcribed in Ms Knight's written statement: Mr Shepherd: Listen mate, when you loose that rake at the west corner there...head up to the PCC Loop, mate. May have to use you at the desulph for the rest of the shift there.... Mr Cook: I'm going home. I've got a bloody stink'n headache as it is. I'm feeling crook as it is. Mr Shepherd: Yeah, well you will have to talk to Shane (Mr Doyle) about that, mate. Mr Cook: Yes I will. 12 Mr Cook went to park his locomotive. He claimed that he was paged on the radio by Mr Mick Graham, another team leader for the management and general services side of the rail operations. He switched to another channel [1B] to speak to Mr Graham who asked him why he was going home and, according to Mr Cook, when he informed him that he was unwell, Mr Graham "...said okay...". He then switched his radio back to his original channel [1A]. It is Mr Graham's claim, not disputed by Mr Phillips in these proceedings, that he also informed Mr Cook to speak to Mr Doyle over his intention to leave the site but Mr Cook claims that by that time he had, in fact, switched his radio to the other channel and he therefore missed Mr Graham's comments in that respect. 13 Mr Cook tied up his locomotive but he did not see Mr Doyle. Mr Cook recorded in his written statement that: "...when I arrived at Mr Doyle's office, it was locked. There was no one around. I felt so sick I could not wait, and I left work. I went home and straight to bed. I had a severe headache and cold shivers when I went to bed. I woke up after a number of hours feeling a lot better and went to work at my next available shift..." 14 When Mr Cook arrived at work on Thursday, 26 October, 2006, he was handed a letter signed by Mr Andrew Gripton, the acting rail transport manager, informing him that he had been suspended for two shifts for not notifying Mr Doyle that he was going home. That letter reads as follows: "...This letter is to confirm that you have been suspended without pay for two shifts, following unacceptable performance by refusing duties and leaving before the end of the shift without permission of your team leader. This action was explained to you in a meeting on Thursday, 26 October, 2006 at the conclusion of the investigation. As discussed, there was a performance issue that resulted in the disciplinary action. The performance issue was: * refusing duties and leaving early without permission of the shift team leader. As the driver of the locomotive, you are expected to remain working until the end of the shift, unless you receive permission from the shift team leader to absent yourself from work. This is a serious performance issue. Your previous performance was taken into consideration when the decision was made around disciplinary action. An entry outlining this suspension and notes from the discussion will be recorded on your personnel file. As outlined to you during the discussion, repeat poor performance of this nature will result in further disciplinary action which could include suspension or dismissal. Please contact your team leader or myself if you require further assistance regarding your performance..." Conclusion 15 Mr Cook has not sought to be paid for his absence from work as sick leave. Nor does he have any medical certificate to support his absence from work. But there is no reason to dispute his claim that he was unwell (and, as I see the situation, BlueScope Steel does not do so). Mr Phillips' claim in these proceedings is for Mr Cook to be reimbursed for the two days of his suspension and for the removal of the notation placed on his personnel file concerning the incident. Mr Phillips submitted that Mr Cook had earlier informed Mr Doyle that he was unwell and that both Mr Shepherd and Mr Graham both were aware that he proposed to leave work. 16 Mr Patti argued that Mr Cook had provided no reasonable or sustainable grounds upon which I should intervene on behalf of Mr Cook in this hearing and that an obligation rested on Mr Cook to inform his team leader before he left the site on Wednesday, 25 October, 2006: he had failed to do so. In the written submissions provided by BlueScope Steel on which Mr Patti relies there is the comment that: "...it is not the position of the respondent that Mr Cook would have been refused permission to leave had he requested same, but that Mr Cook must make such a request of his supervisor in order for that supervisor to make appropriate arrangements to ensure operations continue unaffected..." 17 Mr Patti referred to the decision of the Full Bench of the South Australian Industrial Commission (Stanley P, Cawthorne CP and Stevens C) in Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 which stressed the importance of a proper investigation by an employer of any incident leading to the disciplining of an employee and concluded that if there were reasonable grounds for an employer to take the view it had in disciplining an employee, that alone was fair and sufficient, whether or not, in fact, the employee was guilty of the conduct alleged. The Full Bench of the Commission (Sams DP, Boland J and Grayson DP) have rejected that notion in its to date unreported decision of Thursday, 19 April, 2007 in Rudder v. Booroongen Djugun Aboriginal Corporation [Matter No.IRC 2539 of 2006 at pp.8 and 11]. I have no reason to doubt the thoroughness of the investigation conducted by BlueScope Steel on this occasion but it is still necessary for me to form an independent assessment of the issues in dispute. 18 It is my view that, in the circumstances, BlueScope Steel has not acted unfairly or unreasonably in suspending Mr Cook and placing a notation of the file over the incident on Wednesday, 25 October, 2006. Among other things, for reasons of safety, it is important that every employee in the Port Kembla steelworks inform those supervisors to whom they are directly responsible of their whereabouts. Also I accept that the rail operations of BlueScope Steel occupy a pivotal role in the Port Kembla steelworks and it is especially important that employees working in that section of the steelworks take every reasonable step to ensure that if they must absent themselves from work, on either medical grounds or any other grounds, they communicate that fact to their supervisor at all times. If Mr Doyle's office was closed to Mr Cook, he still had the opportunity to contact him on a mobile telephone. It was not sufficient for him to simply rely on what he told Mr Shepherd and Mr Graham, neither of whom occupied a direct supervisory position to him. Mr Shepherd reminded Mr Cook of his obligation to tell Mr Doyle if he had to cease work earlier. Mr Cook informed him that he would do so. And, even though the comments of Mr Graham to that effect did not get through to Mr Cook when he changed channels on the radio, Mr Graham attempted to convey that message to Mr Cook as well. It should have been well understood by Mr Cook that he had certain obligations in that respect. 19 In the circumstances, I see no grounds for my intervention in this hearing in support of Mr Cook and I decline to do so. 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.