Industrial Relations Commission New South Wales Medium Neutral Citation: Zivko Likoski v. BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1016 Hearing dates: 11 April, 2011 Decision date: 29 April 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Application for reinstatement of a dismissed employee considered. The employee dismissed for a serious breach of established safety requirements. Jurisdiction for the referral of the matter discussed. No justification for intervention in the decision of the employer to terminate the employment of the employee Catchwords: DISMISSAL - steelworks - referral of an industrial dispute for arbitration - jurisdiction to deal with the matter by conciliation and/or arbitration - acknowledged breach of workplace safety - no grounds for intervention in support of the dismissed employee - application for reinstatement dismissed Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Federal Fair Work Act 2009 Federal Workplace Relations Amendment (Work Choices) Act 2005 Cases Cited: Abbott and Markham v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1006 Coelho v. BlueScope Steel Limited - unreported Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Metropolitan Meat Industry Board v Australasian Meat Industry Employee' Union (1973) AR 231 Pacific Power v Crump (1993) 48 IR 296 Parker v Capitol Painters and Decorators Pty Limited (1996) 68 IR 100 Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132 State of New South Wales v Commonwealth of Australia (2006) 156 IR 1 Vehicle Builders Employees Federation of Australia v Toyota Manufacturing Australia Limited (1987) 24 IR 784 Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 Zdraveski v BlueScope Steel Liimited [2008] NSWIRComm 1028 Category: Principal judgment Parties: Zivko Likoski (Applicant) BlueScope Steel (AIS) Pty Limited (Respondent) Representation: Dave Hancock, Australian Workers Union (Applicant) Mark Davis, BlueScope Steel (AIS) Pty Limited (Respondent) File Number(s): IRC 1510 of 2010 DECISION INTRODUCTION 1Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [ss.83 to 90] of the Industrial Relations Act 1996 , the Australian Workers Union has lodged an application on behalf of its member, Mr Zivko (Jimmy) Likoski, who was dismissed from his crane driver position in the BOS (Basic Oxygen Steelmaking) of BlueScope Steel (AIS) Limited. That dismissal was on Tuesday, 21 December, 2010 and it was based on a breach of safety. Mr Likoski had over 32 years of employment at that time. The AWU has sought Mr Likoski's reinstatement in employment. 2The matter has been allocated to me and I set it down for a preliminary hearing in the Commission's premises at 90 Crown Street, Wollongong on Monday, 24 January, 2011. Conciliation failed to resolve this matter and I therefore set it down for arbitration in a hearing on Monday, 11 April, 2011. Mr Hancock represented Mr Likoski 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 Martin Perry and Mr Stefan Grey, shift team leaders, and Mr Brett Tarrant, the BOS furnaces slabmaking manager. 3Whilst BlueScope Steel is, of course, a trading corporate within the meaning of S.51(xx) of the Commonwealth Constitution, industrial disputes (including claims of unfair dismissal) have not been dealt with under the federal Workplace Relations Amendment (Work Choices) Act 2005 and the federal Fair Work Australia Act 2009 which has replaced it [ State of New South Wales v Commonwealth of Australia (2006) 156 IR 1]. The steelwork operations of BlueScope Steel are covered by a protocol by which industrial disputes, including claims of unfair dismissal, are dealt with, initially by conciliation but ultimately, if necessary, by arbitration, by members of the State Commission. That procedure is now recognised under s.146B of the State IR Act (complimented by ss.738 and 740 of the FW Act). 4The jurisdiction for the State Commission to hear and determine such matters is now fairly settled. But a dispute between an individual dismissed employee and his former employer does not, on its own, constitute an industrial dispute for the purposes of s.146B or the BlueScope Steel protocol [ Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132]. Unfair dismissal claims heard under Part 6 are heard as a separate code of jurisdiction [ Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 at p.49]. But, in my opinion, what gives the dismissal of an employee the status of an industrial dispute , is the involvement of a trade union acting on behalf of that dismissed employee, as is the position in these proceedings. As I indicated in my decision of Wednesday, 11 April, 2007 in J ovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 at para 6 to 10]: "...The question remains whether the dismissal of an individual employee constitutes, on its own, an industrial dispute in that respect. I do not believe that it does. What, in fact, gives it the character of an industrial dispute is the involvement of the (trade union) and its notification of the matter..." 5For instance, in my unreported decision of Tuesday, 29 January, 2098 in Coelho v BlueScope Steel Limited [Matter No.IRC 2259 of 2007] I concluded that the jurisdiction of the State Commission to arbitrate on an unfair dismissal claim initially lodged by the AWU ceased when the AWU withdrew from the proceedings. In such a case, there was no longer any industrial dispute to support the jurisdiction of the State Commission. The arrangements which brought this matter effectively before the State Commission was made between BlueScope Steel and trade unions representing its employees, including the AWU, and without the involvement of the AWU in the proceedings, the matter was beyond the jurisdiction of the State Commission. THE INCIDENT 6The BOS operates three furnaces processing molten iron and steel. The work in the BOS involves crane drivers, furnace operators, hot metal operators and process controllers. I accept, as Mr Perry indicated in his evidence, that the BOS is a high risk facility due to the fact that the process carried out carries the potential risk of creating a fatality and consequently there is a high level of demand on BOS employees to meet all established safety requirements. 7There appears to be no issue concerning essential aspects of the incident which occurred on Thursday, 16 December, 2010. On that day Mr Likoski was working on day shift as a crane driver on the remote controlled service crane [15/50T]. The ropes of the crane had caught on a structure as he was long travelling and became dislodged off the drum of the crane, wrapping around the shaft that drives the rope drum. Mr Likoski noticed that the ropes had become slack as he raised the hook on the crane. He stopped the crane and attempted to assess what had happened. 8He could not see what was the problem from where he was standing and so he took the lift to the crane and walked along an unprotected, unfenced ledge for approximately 8 metres to access the crane which was some 25 metres from the ground, walking back the same way. As Mr Tarrant indicated in his evidence, a fall from that height would likely prove to be fatal, particularly since there were many items of plant protruding out as obstacles for such a fall. 9Mr Likoski approached Mr Grey and explained to him what had occurred and the steps he had already taken in his attempt to rectify the situation, viz: "I tried to get it back on, but I need some help from a rigger." 10At that time Mr Grey assumed that Mr Likoski had attempted to rectify the problem with the remote control. Mr Grey and Mr Likoski took the lift and it was at that time Mr Grey observed footprints in the dust in the beam leading out to the crane and concluded then that Mr Likoski had accessed the crane in an unsafe manner. 11Mr Grey informed Mr Likoski that he should not have accessed the crane in that unsafe manner and Mr Likoski conceded: "I realise that now." 12Mr Grey recorded in the written statement which formed the basis of his evidence in this hearing that: "...my expectation and that of most team leaders is that a crane driver would advise their team leader by a call over the PA almost immediately that they had a crane issue. The reason the team leader or melter needs to be notified is that a rigger is quite often required to untangle the ropes, put them back on the sheaves, etc without doing any more damage to the ropes or crane. The other reason a rigger is required is to inspect the rope for damage. He is accredited to do this as part of his trade. This procedure is normally followed very well. In this instance, Mr Likoski had waited for a minimum of 20 minutes before making attempts to communicate to me about the service crane incident. I cannot think of a real reason for this delay as typically the crane driver cannot, nor is required to, fix such crane incidents by themselves... Just an inspection by the crane driver is likely to delay rather than speed up any repair actions. In my view, it would only be if the employee was trying to repair the damage so that they did not get in trouble. Attempts to repair this could easily result in more damage and potential failure of the ropes. 13Mr Likoski denies that when he attended the crane he was attempting to repair it manually himself. In any event, he claimed that it would have been impossible to put the rope back on the drum manually and that a rigger was needed to rectify the problem. That is not Mr Grey's assessment. He believes that some minor manual adjustments may be made and that, in fact, Mr Likoski was attending the crane to rectify the problem without the need to report it. Mr Grey recalled that when he was speaking to Mr Likoski after the incident, in response to his question: "Did you try to get the rope back on the drum yourself?" 14Mr Likoski had allegedly replied (rather sheepishly, according to Mr Grey): "Yes" 15Whilst Mr Likoski now denies that he attempted to rectify the problem manually, or that he had told Mr Grey that he had done so, I prefer Mr Grey's evidence. Why would Mr Likoski attend the crane in the first place unless it was his intention to manually bring the rope back on the drum if he could and thereby avoid having to report the incident? I believe he tried to do so and it was only when he failed in his attempts that he reported the incident. 16Mr Likoski was required to attend for a drug and alcohol test. Mr Perry asserted that Mr Likoski did not appear to have been fazed in attending for a drug and alcohol test. He attended the medical station for the drug and alcohol test. His blood alcohol level came in under 0.05. It registered at approximately 0.02. The nurse informed Mr Perry that at that level he should not drive a crane but that he may drive home, which he did. 17Mr Perry suspended Mr Likoski on pay pending an investigation. On Monday, 20 December, 2010 Mr Likoski met with Mr Tarrant. Mr Likoski admitted to Mr Tarrant that he knew what he had done was wrong in accessing the crane. Mr Tarrant told him that he would make a decision on the matter. Mr Likoski contacted the AWU which represented him at further meetings with Mr Tarrant and Mr Perry later that day and on Tuesday, 21 December, 2010. Mr Likoski's services were terminated following the latter meeting on Tuesday, 21 December, 2010. CONCLUSION 18My task in this hearing is primarily to determine whether or not, in all the circumstances, Mr Likoski's dismissal was unfair. Using the language of s.84(1), that task is to determine if the dismissal was "harsh" - meaning too severe having regard to all the circumstances - "unreasonable" - meaning immoderate, excessive or extravagant - or "unjust" - meaning unfair, inequitable, undeserved or biased [ Parker v Capitol Painters and Decorators Pty Limited (1996) 68 IR 100 t p.104]. 19It is trite to say that it is in an employee's own interests, and the interests of the employees with whom he works, to ensure that at all times he acts with safety at work. Mr Davis emphasised that obligation on employees in his submissions. In Vehicle Builders Employees Federation of Australia v Toyota Manufacturing Australia Limited (1987) 24 IR 784 Munro J of the former Australian Conciliation and Arbitration Commission declined to re-instate an employee dismissed on the ground that he had done a deliberately dangerous act in clear breach of safety rules known to him (hanging by his hands from a plate being moved by a mobile crane). His Honour had this to say (at p.76) "....I find that (the dismissed employee's) action was foolish and unnecessary. His action not only endangered his own life; his action risked the trauma to his workmates and the entire workplace that a death or maiming at work causes; his action placed in balance the employment of his supervising crane chaser and the crane operator; his action repudiated the company's direct educational programme in his workplace on safety procedures..." 20An obligation is placed on employees under s.20(2) of the Occupational Health and Safety Act 2000 to co-operate with their employer and comply with any direction concerning workplace safety. BlueScope Steel acts with proper training to steelwork employees and has laid down "cardinal rules" over safety which reinforce that training and which I regard as sensible in the circumstances. Clearly, Mr Likoski's conduct on Thursday, 16 December, 2010 was a breach of those "cardinal rules" for safety. 21Indeed, as far as the Port Kembla steelworks - an acknowledged inherently dangerous place to work - in my previous decisions I have consistently raised safety issues to the level that I regard them as being a fundamental condition for all employees working there, expressing the view that a serious and wilful breach of safety conditions may, in fact, constitute misconduct and grounds for dismissal [ Abbott and Markham v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1087 at para.45 and 46, Zdraveski v BlueScope Steel Limited [2008] NSWIRComm 1028 at para.27 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1006 at para. 31]. 22Mr Likoski described his actions on Thursday, 16 December, 2010 as a "mistake". Mr Davis disputes that claim, submitting that it was a conscious decision of Mr Likoski to walk along the narrow unfenced ledge and that he believed that he would not have been observed in what was an area of the plant which was not frequented by other staff members. It was a serious matter to BlueScope Steel, in any event. 23And it would seem to me that Mr Likoski's actions on Thursday, 16 December, 2010 were directed chiefly to avoid what he saw as possible adverse complications which may have arisen if he reported the fact that the rope had come of the drum while he was operating it and whether his incorrect handling of the crane had led to the rope being dislodged. Whilst I accept that when the rope comes off the drum - a rare occurrence, according to Mr Grey - it may not necessarily mean that the crane operator was at fault: there is no evidence before me in this hearing that Mr Likoski was at fault on this occasion. But if Mr Likoski was able to manually rectify the problem, it would have avoided any report of the incident being made. It would go without saying that the appropriate action in that case was not to attempt to hide that fact - which I believe he was trying to do - but simply to report the situation immediately to his team leader and leave it to the proper safety procedure to be followed. 24Nevertheless, as Mr Hancock suggested in his submissions, where there are grounds for dismissal in such circumstances, as I believe there was on this occasion, it is always open to an employer to chose a lesser penalty to dismissal, eg counselling or a warning, having particular regard to an employee's length of otherwise satisfactory service. It is also a legitimate function of the Commission to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: such an approach is, in fact, suggested by the word "harsh" in s.84(1) [ Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR(NSW) 231 at p.233 and Pacific Power v. Crump (1993) 48 IR 296 at p.302]. 25Mr Likoski has a lengthy period of employment at the Port Kembla steelworks. He commenced working there in 1978 and was transferred to the BOS as an operator in 1982. He has worked in the BOS since that time. Mr Grey indicated in his evidence that Mr Likoski worked on overtime shifts with him and he believed he had a good working relationship with him, indicating that he was usually eager to help at work. Mr Tarrant also accepted that he was honest in revealing his wrongdoing and that he expressed what he believed to be genuine regret over the incidence. 26But Mr Likoski's employment record is not without incident and, in particular, reveals a number of safety breaches which suggests that he has a far too casual approach to workplace safety: for instance, walking into and standing in a furnace charging zone whilst metal was being poured into the furnace and a traffic infringement for riding a bicycle on the steelwork site in an unsafe manner. He has received oral and written warnings, counselling and a suspension. And, as Mr Tarrant indicated in his evidence, standing in a furnace charging zone whilst metal was being poured and walking along an unfenced area were very serious safety breaches. 27Mr Perry recorded in his written statement: "....As shift team leader I have a practice of keeping a crew profile of issues regarding significant events, whether positive or negative, relevant to my shift team members during their time on my shift. My review of Mr Likoski's profile identified a trend that is telling to his current situation. Mr Likoski has had numerous incidents that I consider demonstrate a reckless and risk taking attitude in the way he approaches and undertakes his work at the BOS. Following each instance Mr Likoski was counselled and/or received a level of discipline aimed at correcting his behaviour to that required of a BOS operator. Mr Likoski's lack of care and consideration for his team members and crane was evident, as his team members would often report faults with the cranes immediately following a handover from him..." 28On Tuesday, 9 February, 2010 Mr Likoski received a final written warning (to accompany a four shift suspension) which concluded: "...Please be advised that any subsequent breach in safety requirements will result in termination of employment. I ask that you reflect on your behaviour and, in particular, review the choices that you make to work safely. Our safety beliefs state that working safely is a condition of employment. I strongly urge you to speak to the company about any way it can help to improve your behaviour. The company provides a counselling service if you feel they can be of benefit..." 29Mr Tarrant indicated in his written statement that: "....the nature of the BOS process and operations presents hazards in many forms. There are controls in place for all of these hazards and in some cases these controls include people behaving in a manner to keep themselves and others from coming to harm. We train everyone that working safely is a condition of employment on our plant. Mr Likoski has repeatedly demonstrated that he does not intend to meet that condition and that is why I must argue against any reinstatement..." 30As far as the current incident is concerned, Mr Tarrant recorded in his written statement that Mr Likoski: "... did not report the incident immediately after it occurred. He had full knowledge of the safe work practices and he made a decision to walk 8m along a dusty walkway and expose himself to a 25m fall. These actions were deliberate and negligent. This all occurred only ten months after he had received a final warning relating to another serious breach of a safety critical procedure and had given commitments to his manager and team leader that he would not put himself at risk ever again. I have a duty of care to all employees at the BOS however. I cannot allow the deliberate and reckless behaviour of one employee to potentially put him and others at risk. Mr Likoski clearly has a different value set to what is required of employees working for BlueScope Steel and consequently I believe the termination is the correct decision and should be upheld..." 31I agree with Mr Tarrant. I consider that BlueScope Steel management has been very patient with Mr Likoski. I appreciate that Mr Likoski is an experienced and capable crane driver in the BOS. It is therefore most regrettable that he had chosen by his conduct to place his employment in jeopardy. However, in the circumstances described to me in this hearing, I see no grounds for my intervention in support of Mr Likoski and I dismiss the AWU application made on his behalf. 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. Decision last updated: 29 April 2011