Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2010] NSWIRComm 1033 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 32 of 2010 CORAM: Connor C CATCHWORDS: industrial dispute - steel industry - bulk berth area - allegations of speeding with a front-end loader - warning given - allegation of victimisation dismissed - requirements of safety in the steelworks - insufficient evidence to establish the offence of speeding - decision that warning notice should be removed from employee's personnel file Industrial Relations Act 1996 LEGISLATION CITED: Federal Fair Work Act 2009 Federal Workplace Relations (Work Choices) Act 2005 Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 BlueScope Steel (AIS) Pty Limited Stainless Warehouse Disputes Case [2009] NSWIRComm 1012 Briginshaw v. Briginshaw (1938) 60 CLR 336 CASES CITED: Homebush Abattoir Case (1966) AR 371 London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Pinto v. BlueScope Steel (AIS) Pty Limited [2008] NSWIRComm 1017 Wang v. Crestell Industries Pty Limited (1997) 73 IR 545 HEARING DATES: 16/06/2010, 29/06/2010 DATE OF JUDGMENT: 9 July 2010 APPLICANT Andy Gillespie Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Mark Davis BlueScope Steel (AIS) PTY Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 9 July, 2010 Matter No IRC 32 of 2010 Australian Workers Union and BlueScope Steel (AIS) Pty Limited Notification under S.130 of the Industrial Relations Act, 1996 re warning notice on personnel records of an employee for alleged unsafe driving of front-end loader DECISION [2010] NSWIRComm 1033 Introduction 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers' Union has lodged a notification of an industrial dispute with BlueScope Steel (AIS) Pty Limited concerning a formal warning placed on the personnel records of a wharf labourer, Mr Mark Dilevski, engaged on the bulk discharge berth. Mr Dilevski has allegedly breached safety requirements by speeding while driving a large front-end loader ("Caterpillar") at the wharf - an allegation which he denies. The AWU has sought the removal of the formal warning placed on Mr Dilevski's personal file. 2 The matter was allocated to me and I set it down for conferences on Monday, 18 January, 2010 and Wednesday, 27 January, 2010. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. Conciliation failed to settle the matter. I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, programming the matter for hearing on Monday, 12 April, 2010. At the request of BlueScope Steel, and with the concurrence of the AWU, I adjourned that hearing until Tuesday, 8 June, 2010 but those proceedings were also adjourned, this time at the request of the AWU, and with the concurrence of BlueScope Steel. I scheduled the hearing on Wednesday, 16 June, 2010 and Tuesday, 29 June, 2010. 3 Mr Gillespie represented the AWU in the hearing, calling him to give evidence. Mr Davis represented BlueScope Steel in the hearing. He called three witnesses to give evidence in the hearing: Mr Paul Downing, the manager of bulk berth operations, Mr Paul Dawson, relief team leader and Mr Darren Ranzi, a structural/civil engineering cadet. Mr Ralph Keats, the principle safety advisor for iron and slab at the Port Kembla steelworks, had provided a written statement and was to be called to give evidence by Mr Gillespie but Mr Gillespie opposed that written statement of Mr Keates and Mr Davis did not press for its admission into evidence. Mr Keates did not therefore give evidence in the hearing. 4 BlueScope Steel is, of course, a trading corporate within the meaning of S.51(xx) of the Commonwealth Constitution. Consequently, its industrial activities would ordinarily fall under the 2005 Federal Workplace Relations Amendment (Work Choices) Act and the 2009 Federal Fair Work Australia Act which has now replaced it. But a protocol has been established for BlueScope Steel operations in Port Kembla by virtue of which individual industrial disputes are referred to the State Industrial Relations Commission for conciliation and, if necessary, arbitration. Issue 5 On day shift on Wednesday, 2 December, 2009 Mr Dilevski was engaged as crane operator. He was relieved from those duties and drove a front-end loader back to the car park and parked the front-end loader there. He drove the forklift along the berth area (Harbour Road), turned to the right and across a pedestrian crossing to reverse park the front-end loader in an area adjacent to the office for the bulk discharge berth. The front-end loader is a substantial plant item. Mr Dilevski was observed by Mr Downing through windows and a glass door to the office. Mr Downing recorded in a written statement which formed the basis of his evidence in this hearing: "....As I reached my office doorway, my attention was drawn to the unusual movement of a front-end loader that was travelling from the bulk berth in an easterly direction. My attention was drawn because of the speed at which the front-end loader was moving. Typically a front-end loader would travel past the office from 20 to 40 times per day. I would typically observe 10 movements per day on the berth. The high speed that this front-end loader was travelling at was completely incompatible with any of the typical front-end loader movements I observe. While standing in my office doorway, I was able to observe approximately 40 to 50 metres of travel of the front-end loader along the bulk berth and then observe the front-end loader as it began to turn right into Harbour Road to the east on our office block. The front-end loader then went out of sight. I moved approximately 3 metres to my right and then observed the front-end loader crossing the pedestrian crossing in Harbour Road... My observation regarding how fast the front-end loader was moving along the bulk berth, plus the fact that it did not appear to slow down to turn right into Harbour Road and then also proceeded across the pedestrian crossing without slowing down concerned me greatly. I regarded it as very unsafe behaviour which was totally unacceptable..." There appears to be two issues of concern to Mr Downing - that Mr Dilevski was driving too fast in the front-end loader and that he drove unsafely over a pedestrian crossing. 6 Mr Dilevski was subsequently confronted by Mr Downing and later that day there was a further meeting between Mr Dilevski, Mr Downing and Mr Ranzi . Mr Dilevski now disputes that he was speeding on the front-end loader or that he was driving unsafely. During the meeting Mr Downing recalled Mr Dilevski saying: "I wasn't aware that I was speeding. I didn't think I was doing anything unsafe. However, if you think I was then I apologise. But I don't think I was." Mr Ranzi also recalled Mr Dilevski expressing words to that effect. Mr Downing informed Mr Dilevski that he would require a commitment from him that he drive the front-end loader safely and Mr Dilevski gave that commitment. 7 The comments by Mr Dilevski in the meeting do not necessarily represent any real admission on his part that he was speeding or driving unsafely on the front-end loader and Mr Downing seems not to have really accepted them as such. The front-end loader has four gears and no governors on it to control its speed but Mr Dilevski claimed that he always drove front-end loaders in second gear which would limit its speed to 15kph, consistent with the maximum speed for the wharf area. Mr Downing disputes that assertion, however, claiming that Mr Dilevski was travelling in excess of 15kph at the time and that, consequently, he must not have been in second gear. 8 It was also suggested in the meeting that some domestic issues involving the health of Mr Dilevski's mother-in-law may have affected his judgement but Mr Dilevski denied that was the position. Mr Ranzi claimed that Mr Dilevski said: "I have things on my mind which are a personal matter which has nothing to do with work." The formal warning that Mr Dilevski received was not accompanied by any further disciplinary action, eg a suspension. In the meeting Mr Downing had not informed Mr Dilevski that if there was any further safety incident involving him, disciplinary action (unspecified) may be taken against him but that was ultimately conveyed to Mr Dilevski by Mr Downing in a further meeting on Friday, 4 December, 2009. 9 Mr Downing gave Mr Dilevski a letter to that effect on Friday, 4 December, 2009, viz: "...Mark was observed by myself driving a front-end loader [FEL] from No.1 Discharge Berth to the FEL car park. In my opinion, Mark was driving above the permitted speed limit, and then proceeded around the corner into Harbour Road and across the pedestrian crossing without any attempt to slow down. I believe that was very dangerous and unacceptable behaviour. Mark stated that he did not realise that he was speeding and apologised for the behaviour. Mark gave a commitment to drive safely in the future. I advised Mark that he was being given a written warning for this unsafe behaviour and that a copy of this warning would be placed in his personnel file. I have further advised that a repeat unsafe behaviour could lead to more severe disciplinary action... " I note that the letter was also dated Wednesday, 2 December, 2009. I also note that the letter concludes by warning Mr Dilevski that a repetition of any unsafe conduct "...could lead to more severe disciplinary action...". Strictly speaking, it would appear to me, in fact, that the warning letter constituted no disciplinary action at all against Mr Dilevski. It is only the threat of (unspecified) disciplinary action in future which has apparently given Mr Dilevski any real cause of concern. Conclusion 10 The action taken by Mr Downing against Mr Dilevski was therefore far from an extreme one. The warning letter was not accompanied with any period of unpaid suspension for him and therefore he has not suffered financially from the incident. Mr Gillespie conceded in his submissions that the letter would not ordinarily be regarded as a serious matter. Nevertheless, warning notices placed on an employees' personal records in the Port Kembla steelworks have some significance to the employee concerned, since such a notation may be considered in the case of subsequent retrenchment or other disciplinary action. In my unreported decision of Thursday, 2 April, 2009 in the BlueScope Steel (AIS) Pty Limited Stainless Warehouse Disputes Case [Matter No.IRC 531 of 2008] I commented (at pp.7 and 8): "...It is not an uncommon practice in the Port Kembla steelworks for BlueScope Steel that warnings are given over a range of issues, including breaches of safety, and that those warnings be retained indefinitely on the personal files of the employee concerned to establish an overall employment record. As far as the Commission is concerned however, I believe that all warning notices to employees should have a finite life. The warning notice to (the employee concerned) is almost twelve months old by the time the arbitration of the matter finally got underway. But it is still not a dead letter as far as (the employee) and the AWU is concerned..." BlueScope Steel is entitled to regard safety issues very seriously, however, and as I pointed out in the BlueScope Steel (AIS) Pty Limited Stainless Warehouse Disputes Case (at p.8), the steelworks is not a workplace which permits a casual approach to safety issues. 11 In fact, in the past I have raised safety issues in the steelworks to the level of a fundamental condition for all employees working there. In my unreported decision of Wednesday, 19 December, 2007 in Abbott and Markham v. BlueScope Steel (AIS) Pty Limited [Matter Nos.IRC 1190, 1191 and 1485 of 2007], for instance, I went so far as to suggest (at pp.19 and 20) that: "...such a fundamental breach of an important condition of contracts of employment in the steelworks is... misconduct. (The two dismissed employees) recklessly disregarded what I consider to be an essential condition in their contracts of employment at the steelworks [ Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285]. That is sufficient to ground (the) allegation that they were guilty of misconduct. I note in that respect the comments of Cook J of the former State Industrial Commission in the Homebush Abattoir Case (1966) AR 371 at p.374), viz: '…In my view, the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service ...'. My emphasis. The conduct of the (dismissed employees) strikes at the heart of their employment in the steelworks..." 12 Since Mr Dilevski has actually denied wrongdoing in this hearing, the onus of proof rests with Mr Davis to establish that wrongdoing [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84 and Wang v. Crestell Industries Pty Limited (1997) 73 IR 545 at pp.463 and 464]. Because of the importance of safety issues in the steelworks in general, the allegation against Mr Dilevski must be taken seriously and whilst the evidence before me should be assessed on the civil standard of proof - the balance of probabilities - a higher level of proof would ordinarily be expected and I should still act with some caution in assessing the evidence before me. 13 The decision of the High Court (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) in Briginshaw v. Briginshaw (1938) 60 CLR 336 the High Court (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) is, of course, the authority which has relevance on the standard of proof required in such civil claims. Dixon J commented in that respect (at p.362): "....The seriousness of an allegation made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences..." But, as I indicated earlier in this decision, the disciplinary action taken against Mr Dilevski was far from at the extreme level: it was a simple counselling letter - sensible advice that he not drive a forklift at speed at the discharge berth. To use the language of Dixon J in Briginshaw v. Briginshaw (at p.362) "...the consequences flowing from a particular finding..." would not appear to be as grave as they might otherwise have been, ie a suspension or dismissal. 14 Ordinarily, I would not be inclined to regard a letter of the type placed on an employee's history card, unaccompanied by any period of unpaid suspension, as warranting the intervention of the Commission, at least on the basis of the higher standard dictated by Briginshaw v. Briginshaw. The consequences flowing from such a letter to employees would be far from significant. They would be no more than a reminder that the employee exercise more care when he drives items of plant in the steelworks - sensible advice, I would think. In those circumstances, I would be more inclined to accept Mr Downing's version of the incident. 15 But it is Mr Dilevski's perception that he is regarded by Mr Downing as a "troublemaker" and that he has been victimised in the past by BlueScope Steel management in general and Mr Downing in particular. Mr Downing emphatically denies that allegation and, as Mr Davis submitted, there is nothing established in the evidence before me to support Mr Dilevski's assertion in that respect. However, Mr Dilevski's employment with BlueScope Steel has not been without incident. For instance, in 2007 he received a final warning (again without any suspension) when he claimed falsely that it had been he who had been driving a front-end loader which was involved in an accident to cover for another employee who had been driving the plant item and sought to avoid a drug and alcohol test - see for instance the unreported decision of Macdonald C of Friday, 29 February, 2008 in Pinto v. BluesScope Steel (AIS) Pty Limited [Matter Nos.IRC 1329 and 1330 of 2007]. 16 It should be noted that Mr Downing did not act on that final warning and dismiss Mr Dilevski over the incident on Wednesday, 2 December, 2009, which would appear to me to suggest that Mr Dilevski's claims that he is being victimised have no substance. The warning he received over that incident on Wednesday, 2 December, 2009 was not even expressed as a final warning. But the fact remains that a further formal warning on Mr Dilevski's personnel file would still have a considerably more serious consequence for him than would be the case for other BlueScope Steel employees. That suggests to me that I should consider the evidence before me with some caution - according to the standard demanded by Briginshaw v. Briginshaw. 17 I accept Mr Downing as a credible witness of the incident but he is not in a position to give anything more than his perception that Mr Dilevski was speeding in the front-end loader. He acknowledges as much when he indicated in his warning letter dated Wednesday, 2 December, 2009 that it was his opinion that Mr Dilevski was driving above the permitted speed. Mr Downing's perception was based essentially on the assessment he made of the briefer time it took for the front-end loader to pass by the office where he was standing observing it through the windows of the office. Not unnaturally, he was not in a position to check the speed which Mr Dilevski was travelling whilst driving the forklift with a watch. Nor was Mr Downing's evidence corroborated by any other person. Mr Dilevski claimed that he was not speeding: it boils down to one person's evidence against another. 18 In those circumstances, I am not satisfied that Mr Davis has satisfied the onus resting with him to establish that Mr Dilevski was speeding. I therefore direct BlueScope Steel to remove the warning notice over the incident from Mr Dilevski's personnel file and replace it with this decision. 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.