Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Workers' Union New South Wales and BlueScope Steel [2011] NSWIRComm 1038 Hearing dates: 18, 19 and 23 May 2011 Decision date: 20 July 2011 Jurisdiction: Industrial Relations Commission Before: Bishop C Decision: Application dismissed Catchwords: INDUSTRIAL DISPUTE: disciplinary matter -safety issue - two day unpaid suspension and warning letter imposed on employee who failed to properly follow and complete an - learner/operator observing - employee claimed mistake made - issues raised as to adequacy of training etc. lengthy unblemished service - lifting of suspension sought. HELD: employee careless - no excuse for failure to carry out task adequately - mistake entirely avoidable - appropriate expectations based on length of service and experience of employee - if inadequate training alternative action available under company policy - poor example for learner operator - penalty appropriate in circumstances - application dismissed. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Australian Workers' Union v BlueScope Steel (AIS) Limited [2000] NSWIRComm 1071 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers' Union v BlueScope Steel (AIS) Pty Limited [2011]NSWIRComm 1006 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1021 Inspector Ian Lancaster v BHP Steel (AIS) Pty Ltd [2001] NSWIRComm 261 Inspector Ross Wolf v BHP Steel (AIS) Pty Ltd [1999] NSWCIMC 89 Jankoski v BHP Port Kembla (1996) 71 IR 313 Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Juleff v Linfox IRC 4293/2004 (17 June 2005) Category: Principal judgment Parties: The Australian Workers' Union, New South Wales (Applicant) BlueScope Steel (Respondent) Representation: Duncan Cotterill Lawyers (Respondent) Mr B Baraldi Australian Workers Union (Applicant) Mr A Deardon,(Respondent) File Number(s): IRC 1429 of 2010 DECISION 1This matter concerns a notification made pursuant to section 146B of the Industrial Relations Act 1996 by the Australian Workers' Union, New South Wales (the AWU) of a dispute with BlueScope Steel (AIS) Pty Ltd (BlueScope). The dispute was notified to the Industrial Registrar on 7 December 2010 and concerned a written warning and 2 day unpaid suspension imposed on the AWU's member Mr Ciarelli as a consequence of an incident involving Mr Ciarelli which occurred on the 19 November 2010 in the Hot Strip Mill (HSM) at the Port Kembla Steelworks. 2The matter was set down for compulsory conference before me in Wollongong on 15 December 2010, at which time conciliation took place. The parties were directed to confer and the matter set down for report back on 19 January 2011. Further report backs took place on 2 and 23 February 2011. However as no settlement of the dispute could be reached directions were issued as to the filing and exchange of witness statements and the matter set down for hearing on the 18 and 19 May 2011. The hearing concluded on the 23 May 2011. 3At the hearing Mr Baraldi, AWU Organiser, appeared and called the following witnesses who gave oral evidence in addition to the witness statements as filed: Mr Giuseppe Ciarelli - Hot Strip Mill Operator Level 16+ (Exhibits 3 and 4), Mr Colin Punshon - Hot Strip Mill Operator Level 16+ (Exhibit 2). 4Mr Deardon , Solicitor, appeared on behalf of BlueScope Steel, and called the following witnesses who gave oral evidence in addition to the witness statements as filed: Mr Robert Munkman - Operations Engineer Furnaces HSM (Exhibit 9), Mr Peter Spicer - Shift Team Leader HSM (Exhibit 16), Mr Robert Willets - Senior Operations Engineer HSM (Exhibit 17). Remedy Sought 5The AWU sought the following remedy (Exhibit 1): An amendment to the disciplinary action taken against Mr. Ciarelli in the form of: a.) Rewording of the disciplinary letter to a verbal instruction. b.) Removal of the two-day suspension without pay and restitution of the monies lost by Mr. Ciarelli. Background and Chronology 6Mr Ciarelli commenced employment at the Port Kembla Steelworks in 1994 and transferred to the HSM in 1996. His principal role at the HSM is as a Walking Beam Furnace Roughing Mill (WBFRM) Operator. He has achieved all necessary accreditations and full competencies required to carry out his role. 7Mr Munkman is responsible for optimising furnace operations and ensuring the safe operation of the furnaces. 8On the morning of Friday 19 November 2010, Mr Munkman and Mr David Relf, Shift Electrician, isolated the Coke Ovens Gas Bleeders and Nitrogen Key of No.2 Walking Beam Furnace so that the Air Quality Group could safely continue with the sampling of the stack. The isolation was done in accordance to HSM Isolation Procedure SP-SPS-SMI-10816, WBF2 Isolation Procedure for COG North & South Header Bleeders and Nitrogen Key (Exhibit 9-RM1) and involved 5 locks in total. 9As the Air Quality Group wanted to work back later than 4:00pm and Mr Munkman could not work back, he handed over the role of Isolation Coordinator to Mr Relf and asked him to hand over the role to the Night Shift Electrician. He also spoke to a couple of the Day Shift WBFRM Operators on Crew C about passing over the lifting of the isolation to the Night Shift operators . Mr Munkman left the plant at approximately 4:30pm. 10At about 7:15pm Mr Munkman rang the Night Shift WBFRM Operators and spoke to Mr Ciarelli, (who was the operator at the control desk) about lifting the isolation for No.2 WBF Coke Ovens Gas Bleeders and the Nitrogen Key. Mr Ciarelli advised him that he had received the message from those operators and would get the job done. 11Mr Ciarelli subsequently proceeded to the WBF2 Isolation Board accompanied by Learner Operator Mr Michael Sharrock. Mr Livio Tagliapietra, the Shift Electrician, and Acting Isolation Coordinator provided Mr Ciarelli with the printed Isolation Procedure with the equipment key (the procedure documentation as used by Mr Munkman and Mr Relf that morning). 12Mr Ciarelli then proceeded to lift the isolation locks, but in doing so only lifted 2 of the 5 locks (the COG Bleeders) and returned to the Isolation Board with the Procedure and the 2 locks and gave them to Mr Tagliapietra who placed the locks in the bag and discarded the printed procedure in the bin. 13Following the night shift on 19 November Mr Ciarelli was rostered off work, returning on Wednesday 24 November 2010. 14Mr Munkman returned to work on Monday morning, 22 November 2010 and went to isolate No.2 Walking Beam Furnace Coke Ovens Gas Bleeders and Nitrogen Key, with Mr Gerry Giorgio, WBFRM Operator, so that the Air Quality Group could continue the testing of the stack. When he went to get the Equipment Locks for the isolation he found that there were only two of the five locks in the bag holding the locks and that three Equipment Locks had not been removed from the Nitrogen Key. As Mr Munkman had a copy of the Isolation Procedure with him he proceeded to de-isolate the Furnace and then recommenced the isolation for the Air Quality Group. 15Mr Munkman then telephoned both Mr David Silke, HSM Plant Supervisor and Mr Willets, advised them of what had occurred and that he was going to put a report into HARMarminIE and commence the investigation. 16In the HARMinIE Report which Mr Munkman initiated (Exhibit 3) under "Consequences - Actual & Potential' he rated 'Safety' under 'Risk' as a level 2 and for 'Plant and Business' as a level 4 'Risk'. The risk levels go from 1 to 10, with 10 being the maximum. 17Mr Willets subsequently asked Mr Spicer to have a meeting with Mr Ciarelli on his return to work to gather more information on what had occurred on 19 November 2010. During the course of that meeting Mr Spicer printed out a copy of the Isolation Procedure from the lockout database and showed it to Mr Ciarelli who maintained that whilst it was the procedure he had used on the night, it had extra pages, (pages 3, 6 and 8). He was also shown the front page which indicated 5 locks and Mr Ciarelli maintained that the Procedure he had only had 2 locks and that was what he took off. There is a dispute between the parties as to the explanation given by Mr Ciarelli. 18However the de-isolation performed by Mr Ciarelli did not match any of the pages in the procedure. 19Mr Spicer advised Mr Munkman of this and Mr Munkman asked him to interview Mr Ciarelli again. Mr Munkman subsequently located the discarded Isolation Procedure (with 7 pages as attached on 19 November), retrieving it from the rubbish bin at the Furnace Group Isolation Board. This was shown to Mr Ciarelli by Mr Spicer in the second interview. Mr Ciarelli maintained that pages were missing or that in the process of turning the pages he must have turned 2 pages by accident and failed to pick up all of the isolation points. The reason given by Mr Ciarelli for the error is in some dispute and dealt with in the evidence below. 20Mr Willets subsequently began his own investigation and on Thursday 25 November 2010 conducted separate interviews of Mr Sharrock, Mr Tagliapietra and Mr Ciarelli. All interviews were conducted in the presence of Mr Spicer. Mr Willets also made contemporaneous notes of the meetings (Exhibit 17-BW2). 21Mr Willets' notes of the meeting with Mr Ciarelli on Thursday 25 November relevantly noted the following: ...... ...... ...... They went to the board and Joe collected the key and procedure from Livio. Joe says that he then flicked through the procedure, saw that there were no boxes to be filled in and concluded there were only 2 locks. He was convinced that the procedure was only 3 pages. He did not tick-off anything as he de-isolated. He stated that he realises he screwed up and that he should have taken more time to read the procedure. He says that he mostly follows Gas Procedures that have separate isolation and de-isolation tick boxes. He does not use the standard type isolation procedure and states that he is not proficient in their use. Asked if he had LOCKS 2 training, Joe replied that he had but it was some time ago. (This was checked in SAP and found that he was noted as a "Performer" for locks 2 theory on 30-1-2008. This was also recorded in audit 468211). 22The notes concerning Mr Sharrock relevantly noted the following: ..... ..... Mick said that he had had the procedure in his hand a time. He did not see Joe open the procedure and read it. The two locks were removed and they went back to the board where Livio still was. ....... Mick says that he has not done isolations or de-isolations on his own. He is still learning and watches the other operators. 23Neither the AWU nor BlueScope called either Mr Sharrock or Mr Tagliapietra to give evidence. 24Following the interviews, and after Mr Willets had checked Mr Ciarelli's training records, he discussed the incident with Mr Richard Lorenc, HSM Operations Manager, and Mr Sam Gerovasilis, Manager HSM. As a result of their discussion it was determined that an appropriate disciplinary action for the incident was that Mr Ciarelli be given a formal written warning and have a 2 day unpaid suspension imposed. Mr Lorence subsequently met with Mr Ciarelli at the start of his shift that evening and gave him the warning letter (Exhibit 17-BW3). 25The Warning Letter issued on 29 November 2011 indicated inter alia as follows: ........ The findings have shown unacceptable behaviour in the form of: Not carry out Company essential de- isolation as per Company Isolation Procedure SP SPS SMI 10816ps. This is specifically breaching the principles of Isolation and responsibilities of an Isolating Person. This action place WBF2 in a position of a decreased level of safety for a 60 hour period. This technically being the inability of the Furnace to perform Nitrogen purging in the event of a furnace trip. TA further consequence could have been an increased delay to the mill throughput process. Failed to provide clear direction and example for a Learner Operator. .......... prior Joe, the Company has looked upon this with an understanding that you are a level 16 Operator in the HSM. This position carries a high level of responsibility. You are one of a few operators who have a Training Accreditation that allows you to conduct formal assessments of other level 16 Operators. Additional to this is that you are Operator in the Furnace area where following procedures with relation to isolation and de-isolation of gas is a critical role. The action that you have taken in this incident raises a level of doubt as to the manner in which you may also follow other procedures. ....... 26The actual 8 page "WBF2 Isolation Procedure for COG North & South Header Bleeders and Nitogen Key" used on the 16 November 2010 was also in evidence (Exhibit 9-RM2). Pages are numbered at the bottom right hand corner - " 1 of 8 Pages, 2 of 8 Pages, 3 of 8 Pages " etc. Also at the bottom right hand side of the first page appears the following: Multi-Locks required: 5 Padlocks Required: 5 27The following two pages under 5 columns, both itemises and describes the specific equipment to be isolated and also lists the Location and Action , (with columns following verifying the Test and containing boxes to be initialled in confirmation and verification) as follows: Page 2:- Step 1 - Contact the WBF/RM Operator, Ph. 2008 and inform them that the WBF2 North and South Ovens Gas Bleeders valves and the Nitrogen Key will be isolated. Ask them to follow the Standard Operating Procedure SP-HSM-RF-53-09 WBF2 Operating Guidelines when the COG Bleeders and the Nitrogen key are isolated. Step 2 - Nitrogen Block ( The Action listed for both is: Valve FSV2908A (Shut & disconnect line to FSV etc., Step 3 - Nitrogen Block (and attach multi lock & Valve FSV2908C (Yellow lock. Page 3:- Step 4 - Nitrogen Vent Valve ( Action listed: FSV2908C ( as per Steps 2 &3 Step 5 - Nitrogen supply to ( Action listed for Steps 5 & 6 : WBF2 Coke Ovens (Close Valve, Gas North Header (disconnect Bleeder Bleeder (hose & Valve FSV2901E (attach Step 6 - Nitrogen supply to (Multilock WBF2 Coke Ovens (device & Gas South Header (Equipment Bleeder Bleeder (Lock to hose Valve FSV2901D Page 4:- Provides for the Isolation Person (1 and 2 where required) and Isolation Checker (1 and 2 where required) to sign off (in two places) that the steps have been performed and also contains two boxes at the top right hand side which state: Multi-Locks required: 5 Padlocks Required: 5 Pages 5 and 8 both provide as follows: Group Isolation for : WBF2 Isolation Procedure for COG North & South Header Bleeders and Nitrogen Key The following equipment is isolated under this Procedure. SP SPS SMI 10816 1 Nitrogen Block Valve FSV2908A 2 Nitrogen Block Valve FSV2908C 3 Nitrogen supply to WBF2 Coke Ovens Gas North Header Bleeder Bleeder Valve FSV2901E 4 Nitrogen supply to WBF2 Coke Ovens Gas South Header Bleeder Bleeder Valve FSV2901D 5 Nitrogen Vent Valve FSV2908C ( Note: the equipment listed above appears in the Exhibit as set out in 2 columns in 'landscape' format.) Page 6 is a revision Review page with a heading and the rest of the page blank and Page 7 is set out in 6 lined columns and provides for the Isolation Co-ordinator handover and has been signed by D Relf. 28The following documents were also tendered during proceedings and the subject of further oral evidence: The printout of Mr Ciarelli's Training history (Exhibit 5), Various Audit Reports September - November 2010 (Exhibits 6 ,7 & 8), Mr Ciarell's attendance records for those dates (Exhibits 6a, 7a, & 8a), Various relevant Standing Operating Procedures (Exhibits 10, 14, &15), BlueScope OH&S Isolation Regulations (Exhibit 11), BlueScope Gas Regulations - section5 (Exhibit 12), Various HARMinIE Incident Reports (Exhibits 13, 18a -d). The Evidence General 29It was generally acknowledged by the witnesses that BlueScope took its responsibilities as to safety seriously, as did the AWU; both BlueScope and individual employees had obligations in relation to the OH&S Act; and that BlueScope had been prosecuted in the past for safety breaches (although Mr Ciarelli said he was not aware of such prosecutions). Events of 19 November 2010 30Mr Ciarelli maintained that on 19 November, after he had been advised by Mr Munkman about the isolation to be lifted, he then contacted the Shift Electrician Mr Tagliatietra by phone, who said that he had no knowledge of the work to be carried out and asked the whereabouts of the isolation procedure. Mr Ciarelli told him that the day shift Electrician should have left details of the job, and if he could not locate it that he should contact the Shift Leader. Mr Tagliapietra rang him about 10 to 15 minutes later saying that he had the procedure which had been located at the WBF2 Isolation Board and he would meet him there. 31Mr Spicer refuted this suggestion of "confusion" as to where the isolation procedure would be located, indicating that the isolation regulations stated that the procedure will be kept at the isolation board during the duration of an isolation and that both men should have known that. 32Mr Ciarelli said that when he arrived at the WBF2 Isolation Board (accompanied by Mr Sharrock), Mr Tagliapietra handed him the isolation procedure, (which was rolled up because it came out of a cylinder), with the equipment lock key. Mr Tagliatietra did not look at the procedure. Mr Ciarelli looked at the cover page of the procedure and then turned the page where he thought the page dealt with the isolation of the COG Bleeders. When he turned the page he was looking at the page where the names and signatures of the Isolating Person, Isolation Checker, and Isolation Coordinator were located. He then turned to Mr. Sharrock and stated "only two locks". 33Mr Ciarelli then proceeded to lift the isolation on the COG Bleeders and returned to the isolation board with the procedure and the 2 locks which he gave Mr Tagliapietra who placed the locks in the bag, stored it away and discarded the procedure in the bin. Mr Ciarelli then returned to the WBFRM pulpit and resumed his position at the control desk which had been covered by another Operator, Mr Ngo. Events of 22-25 November 2010 34Mr Ciarelli said that when he was subsequently approached by Mr Spicer on Wednesday 24 November he was told by him that an isolation procedure had not been lifted correctly and asked what had occurred. Mr Spicer also told him that he was under instruction from Mr Willetts to find out what had occurred. 35Mr Ciarelli said that his initial response was one of surprise and he told Mr Spicer that he thought it was only two locks and proceeded to explain the course of events concerning the procedure, including that Mr Tagliapietra "threw it in the bin as it was no longer required." 36Mr Spicer's account of this first meeting, (having been asked to speak to Mr Ciarelli by Mr Willets) was that when he told Mr Ciarelli that the nitrogen was left isolated he replied - "no that was not on the procedure that I was given". Mr Spicer then printed out a copy of the procedure from the printer at the back of the pulpit and showed it to Mr Ciarelli and asked him if that was the procedure used, he looked and said it was, but that it had extra pages and showed Mr Spicer by pointing and saying words to the effect of - "this one, this one and this one", pointing to pages 3, 6 and 8 and said that they were not on the procedure he had used and that the one he had only had two locks on it. Mr Spicer showed him the front page where the number of locks required was five and Mr Ciarelli responded "the procedure I had only had two locks on it and that was what I took off." 37Mr Spicer said that Mr Ciarelli also asked Mr Sharrock to look at the procedure and confirm whether it was the one used, which he did. 38Mr Ciarelli made no mention in his written evidence of being shown a copy of the procedure as printed out by Mr Spicer or of indicating to him the actual pages that were missing. He maintained that this occurred during his second interview with Mr Spicer. 39It was Mr Munkman's evidence that early that morning he was on his way to talk to Mr Ciarelli about the issue of the Nitrogen Key being left isolated when he met Mr Spicer who told him that he had spoken to "Joe" and he had explained that he had missed removing three of the locks because he only had two of the pages of the isolation procedure. Mr Munkman acknowledged that he never subsequently spoke to Mr Ciarelli and relied on what Mr Spicer told him about what Mr Ciarelli said in the conversations. 40Whilst Mr Munkman responded that this probably explained it, shortly after this he decided to review the procedure on the lockout database and when he reviewed the procedure he realised that Mr Ciarelli's explanation did not account for the three locks being left on the Nitrogen Key. He maintained that he phoned Mr Willetts with this information who in turn asked him to print off a copy of the procedure and give it to Mr Spicer. This he did and then met Mr Spicer at the WBF/RM Pulpit where they had a conversation about Mr Ciarelli's explanation and checked that against the procedure. Finding that it didn't make sense he asked Mr Spicer to talk to Mr Ciarelli again. 41Mr Spicer maintained in his evidence that after the first meeting he phoned Mr Willets and relayed his conversation with Mr Ciarelli. Mr Willets asked him to come to the Scope room to discuss the matter further. When he arrived there a meeting took place with Mr Willets and Mr Munkman to discuss the incident. Mr Spicer still had his copy of the procedure which he had printed out and shown to Mr Ciarelli. They then tried a 'substitution test' using the information supplied by Mr Ciarelli to see if the pages that he had claimed were missing, were in fact missing, and whether the state of the equipment on WBF2 after he had finished de-isolating would correspond with the page he claimed to have followed. 42Mr Spicer said that in doing so it was readily apparent that Mr Ciarelli could not have followed the procedure. This was because page 2 dealt with the nitrogen block valve and the nitrogen system was still isolated on Monday 22 November 2010. They also determined that if it was assumed that Mr Ciarelli had only a copy of page 3, and page 2 was missing, the equipment de-isolated still did not match up, as this page involved three locks. One lock was for the nitrogen vent valve, and two for the COG bleeders. The state in which Mr Munkman found the equipment on WBF2 on 22 November 2010 was that the two COG bleeders were de-isolated but the nitrogen vent valve was still isolated. 43Both Mr Willets and Mr Munkman pointed out that on the first page of the isolation procedure, in the bottom right hand corner, it clearly stated that 5 locks were required. Page 2 only two had isolators on it, and both were for the Nitrogen Key, which were not de-isolated, and not the Coke Ovens Gas Bleeders. Mr Ciarelli had de-isolated the Coke Ovens Gas Bleeders which were on page 3, along with one isolator for the Nitrogen Key (which had not been de-isolated). 44Mr Spicer said that it was concluded that the de-isolation performed by Mr Ciarelli did not match with any of the pages in the procedure. Mr Willets asked if they still had the original procedure and Mr Munkman advised not to his knowledge. 45Mr Willets' recollection of this meeting was that it was Mr Munkman who "confirmed' that Mr Ciarelli claimed that pages 3, 5, 6 and 7 were missing from the procedure. Mr Willets also said that it was in the afternoon that Mr Munkman contacted him and told him that he had found the original procedure. Mr Willets then saw Mr Spicer a short time later and told him to speak to Mr Ciarelli to let him know about this latest development and speak to him again about his story. Mr Spicer reported back to him at the end of his shift and said he had given the information and he was sticking to his story. 46Mr Willets acknowledged that he was not aware that Mr Munkman had not spoken directly to Mr Ciarelli and had relied on Mr Spicer's account of his conversations with Mr Ciarelli. 47Mr Spicer also said that at the end of this meeting Mr Willets told him to inform Mr Ciarelli that until the matter was investigated further he was not to be used in an isolating role unless authorised by Mr Willets. He passed that information on to Mr Ciarelli. 48In contrast to this evidence, Mr Ciarelli maintained that this information was one of the outcomes of the subsequent meeting he had with Mr Willets and Mr Spicer (25 November), where he was informed that he was not to perform any isolation tasks until further notice. 49Mr Ciarelli went on to say that on that same day (25 November) a furnace trip occurred on WBF1 which required that a Gas Safety Level 2 (GSL2) person supervise other furnace accredited Operators in the operation of a Standard Operating Procedure (concerning Lightup of entire furnace when >800 degrees). Given the mitigating circumstances of the situation, he acted as the GSL2 and assisted a fellow Furnace Operator (Mr Campbell) return the furnace to its normal operation and a safe state. Mr Sharrock and Mr Spicer (as team leader) were also present and Mr Spicer did not object, or stop him from performing this role. 50Mr Munkman made no mention of meeting with Mr Spicer and Mr Willets and said that later that morning when he was in the Furnace Auto Equipment Room he inadvertently discovered a copy of an Isolation Procedure that had been used earlier in the week and that made him consider the possibility that he could find a copy of the original procedure that had been used on 19 November. He then went to the rubbish bin at the Furnace Group Isolation Board and found the original isolation procedure, which was still intact, with 7 of the 8 pages of the procedure stapled together. He said that the last page ( page 8), the 'List of Isolated Equipment' is removed from the procedure when the Group Isolation Board is activated. He then phoned Mr Willetts to let him know what he had found and was told to give it to Mr Spicer, which he did, but could not remember whereabouts this occurred. Mr Munkman had no further involvement in the investigation. 51Mr Spicer maintained that whilst he was walking with Mr Willets he received a phone Mr Munkman who told him he had found the original procedure in the bin. Mr Munkman was at the WBF lock out board. As Mr Spicer and Mr Willets were very close to that area he told Mr Munkman to wait and they would meet him there. They then looked at the procedure which was missing page 8 (which Mr Spicer said would be usual). In the light of this new information Mr Willetts told Mr Spicer to go and talk to Mr Ciarelli and let him know that they had found the procedure and see if he still claimed pages were missing. 52Mr Spicer said that within about half an hour he had another meeting with Mr Ciarelli, showed him the original procedure and asked him if it was the procedure he used on the Friday. Mr Ciarelli said that he 'guessed' that it was and that the names matched up. Mr Spicer pointed out that all the pages were attached but Mr Ciarelli replied that the one he had followed had pages missing. Mr Spicer then told Mr Ciarelli that it had been found in the bin at the lockout board by Mr Monkman and did he still think pages were missing. Mr Ciarelli replied that there must have been, as the one he had didn't have all those pages. Mr Spicer asked him what pages he did follow and Mr Ciarelli pointed at page 2 and told him 'that one' and that was why he removed two locks. Mr Spicer then told him that that page wasn't for the COG Bleeders, it was for the Nitrogen, and that he had taken the locks off the COG Bleeders, and that was on the next page. 53Mr Spicer maintained that he then went on to say to Mr Ciarelli words to the effect of: "I am not saying that this is what happened but let's say if a person performing the de isolation had done so without referring to the procedure or for whatever reason had missed a step they would be better off admitting to that rather than trying to cover it up because management would take an even more dimmer view about it." 54He then asked Mr Ciarelli whether maybe he had just missed a page and he replied that he could have missed one perhaps, but he went on to say that pages were missing or they gave him the wrong procedure and that he was not even used to using these procedures. He said that they normally used gas isolation procedures and they were a lot easier to follow. Fitters and Electricians used these procedures, not Operators. 55Mr Ciarelli also told him that he wasn't supposed to lift the isolation on that night, another WBF operator on A Crew (Mr Ngo) was going to do it, but he offered to do it instead as a favour. 56Mr Spicer also asked Mr Sharrock if he could confirm whether the original procedure found in the bin was the one followed on the night and he told him that he thought it was, but hadn't looked at it very carefully as it was Mr Ciarelli who had the procedure. 57Mr Spicer said that he told Mr Ciarelli that the two locks he removed did not match up with the procedure but he maintained he had done nothing wrong and continued to maintain that the procedure he followed only had two locks and that pages must have been missing. 58Mr Spicer then relayed what he had been told by Mr Ciarelli to Mr Willets. 59It was Mr Ciarelli's evidence that about an hour after Mr Spicer first spoke to him he returned and told him that the original isolation procedure had been retrieved from the bin. Mr Spicer showed him this original procedure and asked him to confirm whether this was the one he had used on the night and he confirmed that it was from the names listed on the last page. Mr Spicer then told him that he had in fact missed a page on the procedure. Mr Ciarelli said his response to that was that in the process of turning the pages he must have turned 2 pages at once. He maintained that he admitted to Mr Spicer that he had made a mistake. 60Mr Ciarelli did not agree with Mr Spicer's recollection of what was said and maintained, in his reply statement, that it was at this time that he stated to Mr Spicer that - "perhaps because I was wearing the Kevlar gloves, I might have missed a page" (Exhibit 4). 61However Mr Ciarelli in his initial statement (Exhibit 3) made no mention of saying this to Mr Spicer and raised it in the context of the 25 November meeting with Mr Willets as follows: ........At that meeting, I reiterated what I had stated the day before to Mr. Spicer. In hindsight, I understand that my actions that night were both an unintentional lapse in concentration and a mistake. I can only think that I was wearing Kevlar gloves at the time as I'm required to do so under BlueScope policy, I have accidently (sic) turned two pages and have failed to pick up all of the isolation points. 62In cross examination Mr Ciarelli agreed that his attention to detail was quite good and that when he followed procedures he checked line by line that was required of him as an operator, if it was a gas procedure he would have followed all the steps. This (the incident) happened because he wasn't familiar with the lockout procedure. However he agreed he had followed procedures step by step and that was what he had done in the course of his employment and that as a proficient level 16 Operator he followed those procedures correctly. 63Mr Ciarelli indicated that if he was asked to perform a task that he didn't know how to appropriate steps to take was what they called "escalation". So he would escalate it to his Team Leader and if he couldn't find him he'd escalate it to the appropriate technical engineer involved in that section. If it would have been the furnace that would've been Mr Munkman. He did not escalate the matter that night because he did not think he had made a mistake. He thought he completed the procedure. 64When asked whether if he didn't know what he was required to do it he was required to "take two" he responded, ....."That's why you have an isolation coordinator. He's supposed to be checking on how many locks you return". He went on to say that was why he felt the isolation coordinator (Mr Tagliapietra) should have been under scrutiny. He could have checked his mistake and they wouldn't be here in the first place. He would have picked up that in five locks he only returned two. That's what happened in the past and they say you've got three locks missing and that was like a safeguard. He did not agree that it was not the responsibility of the isolation coordinator to check on every operator's de-isolation. 65He went on to say that at the time of the incident he "really believed" he only had two locks to take off. When it was pointed out to him at the second interview with Mr Spicer he agreed that he made a mistake and he also told that to Mr Willets. 66Whilst Mr Ciarelli initially maintained that it would have been page 5 that was put up on the Isolator Board he accepted that it was in fact page 8 that had been put there and agreed that once completed that page would also be thrown away just like the rest of the pages. He said he wasn't very aware of that as he did not do these sort of things very often and actually asked Mr Tagliapietra what to do with it and he threw it in the bin. 67Mr Ciarelli acknowledged that he had acted as a Gas Safety Level 2 person but was not isolating as part of that role, the supervisor was the isolating person. 68The difference between completing a procedure when he thought he was trained in it versus completing the procedure when he didn't believe he was trained in it he responded: I say that the culture in the mill is sometimes you do the job, you don't - you always follow the safety standards of the mill, but you try to do the job as much as you can and then if you get to a standstill, in the case of case of a gas procedure, you must call a Level 3 - gas Level 3, but from a lockout procedure, especially when you think you didn't do anything wrong, because that's a sticky issue with this one. I thought that I completed the procedure to standard. 69He went on to say that he had never been shown where the isolators were, while he knew where they were he had never been shown how to do it. He had isolated the nitrogen key in regards to other isolations but this was the first time he had ever come up with this sort of isolation. 70He acknowledged that he did not really have any concern before attempting the task, did not have any concern about undertaking the task without training and on the night did not express any concern to Mr Munkman when he spoke to him on the phone about the fact that he had never done it before and he didn't know how to do it. 71Mr Ciarelli also said that his initial reaction was that he must not have had all the pages on the night but agreed that when he was able to think about it and was shown the document he realised that when he moved the pages he must have moved more than one page at a time. He had made a full disclosure of this. He was never told that a substitution test had been performed by Mr willets and Mr Spicer and that did not help resolve his confusion, it was being shown the actual document that he accepted that there were no pages missing. 72Mr Ciarelli agreed that a complex isolation was one that required three locks but said he only knew that because of the retraining he had received in February this year as part of his retraining after the incident. He wasn't very familiar with such procedures in November last year, Operators had a low exposure to gas procedures. 73Mr Ciarelli was taken in some detail to the original procedure used on the night. He agreed that the front page was a summary of the work to be done, that you read the safety requirements set out before you start the job and that there was a reference to 5 multi-locks and padlocks required and that dealing in with that page it would be easy to tell there were five locks behind it. He agreed to this last proposition on the basis of.... " yes, but that's if you're familiar with it", but then agreed that it was "simple" to read the front page. 74He agreed that he did not read it carefully, he only read part of it, the front page. He did not recall if he read the safety comments or the equivalent positioning section. He read some of it but couldn't remember what he read and what he didn't read. he knew he read about the gas bleeders valves. 75He also agreed that in the bottom right-hand corner there was a reference to 'multi-locks required 5, padlocks required 5' and that told the person reading the documents that there were five locks involved in the procedure but said that you had to look for it, if you were very proficient with this document. 76When asked to accept that a person not proficient with this document had been able to identify it and that on the front page of the document it was very clear that five locks were involved with this procedure he responded as follows: I say that's what was visible, yes, it's visible and the isolation coordinator should have double checked it as well. 77He said he was not trying to pass the blame he was trying to say that the blame had only passed on to him. Other people were involved in this and there were no consequences for them, only himself. The Company had decided to make him the 'fall guy'. 78Mr Ciarelli also believed that the Company thought, and went down the path, that what he did was deliberate whereas he said it was a genuine mistake. 79He went on to agree that it didn't matter whether or not he moved one or two pages with his Kevlar gloves, it was still apparent from the front page of the document that he was required to get five locks, and that on this occasion he did not maintain attention to detail. He said it was a mistake, a lapse which he admitted to. 80Mr Ciarelli also maintained that he raised the issue of the wearing of the Kevlar gloves with both Mr Spicer (second interview) and Mr Willets. 81Mr Ciarelli was also taken at length and in some detail to the substitution test referred to in Mr Spicer's witness statement and to which Mr Ciarelli had not responded in his reply statement (paragraphs 27, 28 and 29) and taken through the pages in the procedure in response to his explanation of what he had done on the basis essentially that what he had done did not correspond to the pages in the procedure. He agreed that he did not read page 3 at all as he did not see it. He ultimately agreed that "by chance", he removed those locks using "intuition or your experience at the steelworks". 82In oral evidence Mr Munkman was also taken in some detail to the procedure and provided further extensive explanation to confirm the substitution test undertaken and why that could not have matched up with the pages that Mr Ciarelli maintained he did have and had followed. 83He also indicated in response to questions about Mr Ciarelli's explanation of how he had carried out the isolation (looking at Step 1 and making an assumption about 2 locks to be taken off), that Step 1 was a set up step for then carrying out the actual procedure and that if he had read Step 1 then he would hope that through his training and understanding of the furnace that he would then lift the isolation on the Bleeders as well as the Nitrogen Key. 84Mr Willets also provided further explanation in oral evidence about the substitution test and Mr Ciarelli's explanation of only reading Step 1 and making an assumption about two locks to be lifted. He discounted this as Step 1 went on to specify the Nitrogen Key and also the references to 5 multi locks of the procedure. 85Mr Munkman also maintained, in relation to Mr Ciarelli's claim of lack of specific training, that as an accredited Gas Level 2, although that accreditation was not specific about putting locks on and taking locks off, it is used in a gas isolation which is Gas Safety level 2 and his expectation was that Mr Ciarelli would understand and know how to use locks and how to use isolation procedures. He also agreed the one obvious step of an isolation procedure was that you read the procedure, that was the case for both gas procedures as well as isolation procedures. He further confirmed that if Mr Ciarelli believed he either could not perform the isolation or was not qualified to perform the isolation then the Company's expectation was that he would not carry it out and would stop and inform his supervisor. 86Mr Munkman also explained the procedure he followed if he was asked to de-isolate something similar, that being that he would take the procedure and then on each isolator label he would generally put a cross when he de-isolated that particular isolator. He indicated that the difference between gas isolations with their system of boxes to be initialled on both isolation and de-isolation as compared to isolation procedures, was that they had just evolved that way, it was tied up in the difference between the Company's Isolation Regulations and the Gas Regulations. He agreed that it had been raised on occasion within their department as to the utility of having such boxes in an isolation procedure but he did not think that was necessary. He considered the crossing out or the putting of some mark that you had removed the isolator seemed to have worked so far and that most people usually put a mark. His mark happened to be a 'cross' but other people just put a line through, it was very common. Once you had finished lifting the isolation the one thing he did do was to count the number of locks and see if it matched the number that was used in the procedure. 87Mr Munkman also explained that an Isolation Checker was not meant to assist or attend the de-isolation process because the process of carrying out right an isolation was more important than the process of lifting an isolation. In the de-isolation it was really taking the lock off, turning the valve on, nothing more complicated than that. 88Mr Munkman also indicated that the only role for Mr Tagliapietra as the Isolation Coordinator was to deactivate the Group Isolation Board, give the key for the equipment locks and the procedure to Mr Ciarelli so the isolation could then be lifted that was all he was required to do. When the bag came back either he or Mr Ciarelli could put the equipment away, and the locks away when they were finished. 89Mr Willets also confirmed that Mr Tagliapietra did not have a role under the Isolation Regulations that he fulfilled the role he had which was to "deactivate the board, line 6, activate and deactivate the group isolations. He has deactivated the Board, handed the procedure and the key over". 90He acknowledged that Mr Tabliapietra should have "technically" signed the procedure when he took over from Mr Relf, he had not done that step and had more or less done the step on behalf of Mr Relf who was at that stage still signed on as the Isolation Coordinator. He was unaware of how well the handover was between Mr Relf and Mr Tagliapietra. There was no requirement for Mr Tagliapietra to sign off when the locks were handed back to him. 91In cross examination Mr Munkman indicated that he could not recall whether he advised the day shift Plant Supervisor that the work was likely to carry over into the night shift. He acknowledged that there was a handover process between Isolation Coordinator (Mr Relf on day shift to Mr Tagliatpietra on night shift) he was not sure whether there was also an obligation for the Plant supervisor to be informed when an isolation had to be lifted. 92He also acknowledged that as one of the follow up actions resulting from the incident he had been advised that in relation to any tasks he assigned to WFB Operators he also had to inform their Shift Supervisor. 93Mr Munkman also acknowledged that during the 60 hours over the weekend (with the plant continuously operating) the locks not lifted had not been picked up during any scheduled routine shift inspection which would also take in both furnaces and take about 1 hours to complete. To check the particular area that had been isolated would have taken about 2 minutes. He did go back and check to see who had missed it but had not followed it up with those persons. 94Mr Munkman also indicated that isolations would take place routinely every week with the majority taking place in the Strip Mill on the second week as they stopped for maintenance every two weeks, with, he estimated, about 500 isolations per year being undertaken. 95Mr Willets also confirmed that isolations took place frequently and a particular isolation could sometimes last some days and essentially indicated that just because there was a yellow lock on an item of plant would not necessarily alert anyone that an isolation should have been lifted and that had not happened. He acknowledged that the matter had not been followed up with those shifts and acknowledged that should have happened. 96In cross examination Mr Munkman was also taken in some detail to the Isolation Regulations (Exhibit 11) and the Gas Regulations (Exhibit 12) and a specific gas SOP (Exhibit 10), he confirmed the steps that had to be followed in gas isolations, and that operators were familiar with the types of procedures in Exhibit 10 which involved both an isolation and de-isolation in a combined procedure, and that Mr Ciarelli, as far as he knew always followed these steps in a combined procedure. 97He did not agree that the isolation procedure used by Mr Ciarelli on 19 November should have had a gas procedure attached to it but agreed there was a link. What he did say was as follows: A: There's definitely a link and I have discussed this issue with some more senior gas supervisors than me. It's a little grey, a little borderline, but essentially the isolation that we do - the isolations that you refer to, the one that Joe was involved in and the one for the harbour master, don't actually involve any purging or end point testing, fairly simple. So hence we made a decision that they didn't require a gas procedure. 98There was also extensive cross examination of Mr Munkman in relation to various other HARMinIE Reports and also the SOP (Exhibit 14) for the steps to restart Furnace 2 after a furnace trip. He acknowledged that it generally took an operator about 5 minutes at most to recover from such a trip. However he was not prepared to accept that in Mr Ciarelli's incident the furnace would not have purged and that the Operator would have had an alarm saying that the nitrogen hasn't purged saying that he wasn't sure about that because they had never tested that scenario. He then went on and postulated hypothetically what might happen and thought that it might take a couple of hours. He also pointed out that they had not tested this and had not checked the code in the PLC. 99Mr Spicer maintained that at no stage in his conversations with Mr Ciarelli did he admit that he had made a mistake. This was raised for the first time in the interview with Mr Willets. 100Mr Willets maintained that at no stage was the subject of Kevlar gloves and the accidental turning of pages ever raised by Mr Ciarelli. This explanation was only raised in by Mr Ciarelli in his witness statement. Mr Willets questioned the truthfulness of this explanation particularly when Mr Sharrock confirmed that he never saw Mr Ciarelli open the procedure. 101Mr Willets also maintained that Mr Ciarelli's suggestion that he was unfamiliar with this type of procedure was not supported by the training he had received nor his qualifications and duties as a Level 16 plus HSM Operator. Further if he was unsure of the procedure or what to do, he should have spoken to his Shift Team Leader for further assistance. An employee, and in this particular case Mr Ciarelli, should never proceed if they were in a situation where they had concerns or were not sure what to do. 102Mr Ciarelli also said that at neither of the meetings with Mr Spicer did he have a support person with him, nor was such offered to him. Mr Ciarelli did have a support person present in the interview with Mr Willets and Mr Spicer on Thursday 25 November. 103Mr Ciarelli drew attention to the fact that in Mr Willets' statement there was acknowledgement that in that interview he admitted that he made a mistake and that he should have taken more time to read the procedure. 104Mr Ciarelli believed that the manner in which the investigation was initially conducted had been prejudicial to his situation and that both Mr Munkman and Mr Willetts had formed opinions based on Mr Spicer's information that had brought into question his integrity and honesty. 105Mr Spicer generally confirmed, through his recollection, the main points of the interviews conducted with Mr Sharrock, Mr Tagliapietro and Mr Ciarelli a set out in the notes made by Mr Willets. He further added that as soon as Mr Ciarelli entered the room for the interview, the first words out of his mouth were - "I fucked up". Mr Spicer said that he was very surprised to hear this as he had not admitted this to him during his earlier conversations. Mr Spicer said that Mr Ciarelli explained words to the effect of: "I only flicked through the pages, I must have missed some pages and that's why the nitrogen was left isolated. I must have missed that page or they were stuck together". 106Mr Ciarelli considered that his record with respect to safety matters prior to this incident was very good. He had no previous indiscretions as confirmed by Mr Munkman in the HARMinIE Incident Report (ID 159332). 107Mr Munkman denied that he wrote in this Incident Report that Mr Ciarelli had no previous indiscretions or had very little exposure to this type of procedure, saying that what he wrote was: "Joe Ciarelli was the Isolating Person on Friday Night Shift, many years of experience as a HSM Level 16 Operator." 108Mr Munkman in cross examination confirmed that he had rated the incident as a 'Safety Risk' level 2. He adhered to his belief that the scenario of the consequences if the furnace had tripped was a " major accident event". He denied that he had overstated the seriousness of the situation saying that the problem with a high-risk facility or major hazardous facility legislation was that it is designed about stopping multiple fatalities and the chance of multiple fatality is extremely small. So the work that they are doing is trying to achieve that scenario from occurring in less than one in every 10,000 years. Whilst it was really really low it can still happen. They were obliged to comply with major hazardous facility legislation was something they had to take care of and something they had to do. 109Mr Ciarelli also maintained that he had previously had very little exposure to this type of procedure in the past when carrying out both isolations and de-isolations in his role as Gas Safety Level 2 and Isolating Person. 110Mr Spicer maintained that this was a further reason why Mr Ciarelli was required to read the procedure through its entirety, particularly if he was unsure or not overly familiar with the process. All HSM employees were instructed that at any time while performing a task if they were not sure of any aspect, be it a safety, isolation or lack of knowledge, to stop the task and seek assistance from their Team Leader. He said that this was what Mr Ciarelli should have done on the night if he had concerns about using this particular procedure. 111Mr Spicer also maintained that Mr Ciarelli had made statements to try and cover up the fact that he did not read or refer to the procedure and did not admit that he had made a mistake or take responsibility for a mistake. 112Mr Munkman also believed that Mr Ciarelli has had exposure to both isolation procedures and gas procedures. He went on to say that most of the gas isolations performed by the HSM Operators were done in conjunction with a gas procedure and an isolation procedure. 113Mr Munkman had examined the gas isolations performed by Mr Ciarelli since 1 July 2007 for No.1 Walking Beam Furnace Soak Zone that involved a gas procedure and an isolation procedure (SP-SPS-SMI-10183, 1WBF06 Gas Isolation for Working in Front of the Discharge Doors and SP-HSM-RF-03-24, No.1 WBF Zone 8 Double Block & Bleed Procedure and SP-HSM-RF-03-25, No.1 WBF Zone 9 Double Block & Bleed Procedure). Mr Ciarelli performed this isolation on 3 November 2008, 24 February 2009, 21 May 2009, 10 November 2009 and 19 January 2010. 114Mr Ciarelli believed that the disciplinary action taken by the Company for a first offence, given his previous safety record, was both excessive and did not consider all of the circumstances and mitigating factors that led him to committing an unintentional violation. Further, when compared to similar and more serious breaches in the HSM department under the same Operations Manager over a period of four years where no such disciplinary action was taken, it was his opinion that he had been unfairly treated in this instance. 115Mr Willets considered the formal written warning and 2 day unpaid suspension given to Mr Ciarelli was appropriate for a number of reasons for this including that he had a high level of responsibility attached to his Level 16 Operator role and was accredited to assess other Operators. Added to this was the untruthfulness of his explanation that the procedure had pages missing. He was given plenty of opportunities to admit that the procedure was complete but had stuck to this story until the meeting on the 25 November. 116Mr Willets confirmed in cross examination that if Mr Ciarelli had acknowledged at the outset that he didn't read the procedure then it would have "absolutely" made a difference. That would still have involved some form of disciplinary action as in the role Mr Ciarelli fulfilled reading and following procedures was an part of that role. What had come out of this in his opinion was that "he just didn't read the thing". It was such a simple procedure to follow that it put a lot of doubt in his mind as to how well he was able to follow and execute some of the more complex procedures required under the Gas regulations and in his role as Furnace Operator. 117Mr Munkman also said that he was aware of the penalty imposed on Mr Ciarelli for the incident and considered it was appropriate in the circumstances. 118Whilst there was cross examination of Mr Spicer, it overwhelmingly concerned differences/conflicts between his evidence and that of Messrs Munkman/Willets/Ciarelli as to who said what or where something was said, and he generally confirmed and maintained his written evidence. 119Mr Punshon is also a level 16 Operator at the HSM who has achieved all necessary accreditations and competencies to carry out his role with the exception of Gas Safety level 2 for Furnace 2. 120His evidence generally concerned the difference between the procedures to be followed in gas and non-gas isolation procedures and the various regulations concerning such. 121Mr Punshon stated that he did not believe that the type of isolation procedure used by Mr Ciarelli and other operators should be used for the purposes of isolating sources of gases on the furnace. In this particular instance, those gases are Coke Ovens Gas and Nitrogen. 122He had reviewed isolation procedure SP SPS SMI 10816 and had noted a number of errors in the procedure. He had checked and cross referenced this procedure with the one that Mr Ciarelli was provided with when his incident occurred and they were the same. The errors in the procedure related to wrong identification of isolator labels, and an omission of what to do in the event that a verification test failed. In his experience all procedures that related to furnace work should have all steps identified for both isolation and de-isolation and what to do if a step could not be completed or performed. Mr Punshon annexed to his statement a copy of the procedure with the errors noted (Exhibit 2 -CP2). 123Mr Munkman disagreed with Mr Punshon's assertion and said that the isolation procedure used by Mr Ciarelli on 19 November was the correct procedure to use and follow in this situation. He went on to say that when following an Isolation Procedure if a verification step failed, or could not be completed or performed, then the Isolating Person should stop the isolation, notify the Work Owner, Plant Owner and contact the Isolation Coordinator. Mr Ciarelli was following an Isolation Procedure as the Isolating Person and if he had followed the Isolation Procedure correctly the isolation would have been lifted without incident. 124Mr Munkman did agree however that the isolation procedure in question did have errors, but the isolator labels in the procedure and on the furnace were correct. Further, the errors did not explain why Mr Ciarelli left the three isolators of the Nitrogen Key isolated. It was not an omission that the isolation procedure did not include what to do if a verification test failed. He reiterated that the Isolation Procedures relied on the skills of the isolating person to stop the isolation if an isolation could not be achieved, or if a verification step failed. 125Mr Munkman also disagreed with Mr Punshon's comments that all procedures that related to furnace work should have all steps identified for both isolation and de-isolation and what to do if a step could not be completed or performed. The isolations performed at the furnaces by the HSM Operators are done by following either a isolation procedure or a gas procedure in conjunction with an isolation procedure. The majority of these isolations are done by following a gas procedure in conjunction with a Isolation procedure. Gas procedures included written steps that must be followed if step could not be completed or followed. 126Mr Punshon acknowledged that when an employee was following a procedure they did that step by step, or line by line, and checked whether that was correct. He maintained that if an Operator was not familiar with a procedure they should be trained. He agreed that in such a circumstance an operator was entitled to raise with their supervisor that they hadn't been trained and what should they do. He also agreed that if they were not trained that they were required to "stop and take two". On the issue of whether either training would be arranged or someone else arranged to do the job, he maintained that whilst that would be expected to take place, it didn't always happen. 127In relation to the procedure used by Mr Ciarelli he agreed that the front page provided a summary and referred to the department and section where the work was to be carried out and also what the procedure was actually for. He also agreed that there were references on the page to 5 multi-locks and 5 padlocks and agreed, with reservation ("if you're familiar with it"), that it could be assumed from that information that behind that page would be a page dealing with 5 locks. He went on to agree that it was simple to read the first page and that even if one was not familiar with the procedure, it was fair to assume that behind that page was going to be a procedure to deal with 5 locks. 128Mr Punshon further agreed that if one had concerns with a procedure then that would be the time to raise it, and that it should be raised with the Team Leader. 129Mr Punshon agreed that it was BlueScope policy that if more than three locks were required then it was a complex isolation, but emphasised that they were not Locking Co-ordinators but knew what locks were for. 130Mr Punshon also indicated that in December 2010 he was reviewing a procedure dealing with skip bin removal from Furnace 2 basement with an accredited WBFRM Assistant (Jason Turnbull) and Mr Munkman. During the course of reviewing this procedure, the topic of discussion turned to the incident involving Mr Ciarelli. The outcome of those discussions resulted in Mr Munkman requesting that he and Mr Turnbull take on the task of developing the relevant procedures associated with the following: a) Isolation and de-isolation of the Coke Ovens Gas ("COG") Bleeders and Nitrogen Gas Key system for Furnace 2. b) Isolation and de-isolation of the Harbour Mast. . 131They were also advised by Mr Munkman that the procedures to be developed would be categorised as 'non-gas procedures'. Mr Punshon had subsequently checked the Company's Isolation Regulations and Section 5 of the Gas Regulations and in his opinion, Mr Munkman's view of how the procedures would be categorised was in accordance with the Regulations as set out in Clause 5.1.2. 132Mr Punshon said that they had been unable to commence the development of both procedures as they were waiting for the relevant access to the lockout database. 133Mr Munkman maintained that he did not request that Mr Turnbull and Mr Punshon develop standard procedures for these two isolations. He said that they spoke to him about preparing standard operating procedures and he agreed that once completed and approved they could be used in conjunction with the isolation procedure, not that the development of such standard operating procedures would replace or amend the existing isolation procedure. 134Mr Punshon also said that he and Mr Turnbull had had a similar experience to that experienced by Mr Ciarelli in that they had arrived for night shift and were advised by the dayshift crew that the COG bleeders and Nitrogen Gas Key system for Furnace 2 were still isolated, the key to unlock the group isolation board resided with the shift electrician Mr Bland and that he would be acting as the Isolation Co-ordinator. Mr Munkman did ring them to advise of the situation and circumstances surrounding why the isolation had yet to be lifted. 135When they were given the procedure (SP SPS SMI 10816 WBF2) by the Isolation Co-ordinator, neither he or Mr Turnbull had previously carried out this task under such a procedure. The procedure was one with which they were not familiar, nor had they received any instruction on how to proceed. Mr Punshon said that normally, procedures used on the furnaces had greater detail and specified the scope of the work, the equipment required, and the sequential steps for both isolation and de-isolation of equipment with a requirement for the Operator to initial each step as it is completed. In contrast the procedure they were provided with had no such information with the exception of the isolation steps. Whilst they had carried out the procedure, they had concerns that it was not the type of procedure that Furnace Operators were regularly exposed to and also there was poor lighting where the de-isolations took place. Those concerns had not yet been addressed or corrected. 136Mr Punshon also annexed to his statement a copy of an example of the usual procedures used at the Furnace (Exhibit 2-CP4). 137Mr Punshon also agreed, in response to questions from the Commission that his main concern was with the format of the procedure and that he believed it wasn't adequate. He agreed that he was essentially saying that the procedure would be a lot easier if it had little boxes where you actually had to tick a box and then make sure you had actually done it . This was because when lifting this isolation you were not ticking anything or signing anything. You were given it and just removing the locks. 138Mr Spicer also indicated, in reply to Mr Punshon's assertion that there was an omission of what to do in the event that a verification test failed, that Section 03:07 of the Isolation Regulations clearly covered this instance, that being that the isolation must not proceed. The same rule applied to a situation where a step could not be completed or performed. This was all covered as part of their training in the isolation process. 139In response to Mr Punshon's claim that the procedure he had referred to was not one with which they were either familiar or had received any instruction on how to proceed, Mr Spicer reiterated that all HSM employees were instructed that if at any time while performing a task they were not sure of any aspect (safety, isolation or lack of knowledge) to stop the task and seek assistance from their Team Leader. 140There was also evidence and cross examination as to various HARMinIE reports concerning other incidents which the AWU maintained were relevant in relation to the harshness of the penalty imposed on Mr Ciarelli as well as evidence and cross examination as to Mr Ciarelli's training history. Mr Ciarelli could not recall any of the specific SAO Audits referred to in the relevant toolbox meetings. 141Mr Willets was not aware of the particular circumstances of those other HARMinIE Reports. 142Both Mr Ciarellli and Mr Punshon indicated that training was done in-house by the Company and generally by their peers, other Operators. Mr Ciarelli agreed that he had completed 'train the trainer' training and was accredited to asses other Operators but said that there was no formal training accreditation required to teach other Operators the skills and knowledge of his job. The majority of the training was now self paced training through the module training systems. Submissions on behalf of the AWU 143Mr Baraldi made oral submissions in addition to the written submissions as filed (Exhibits 1 and 19) and in doing so took the Commission in some detail to relevant evidence in support of those submissions. 144The Commission was also taken in some detail to the BlueScope OH&S Isolation Regulations and the BlueScope Gas Regulations in support of the AWU's contention that the Company had not provided proper procedures for Mr Ciarelli to follow on 19 November 2010. 145Mr Baraldi contended that the AWU, through its own investigations, had identified an important lapse in the Company's safe systems of work and the Company was in breach of its own Isolation Regulations. If the Company had carried out such training as it was obligated to do in these circumstances, the outcome arising from this incident would have been somewhat different. 146It was submitted that given the evidence brought in this matter by the AWU, and having consideration for all the relevant factors raised, the disciplinary action of 2 days suspension and the wording of the written warning should be revoked by the Commission with the view to recommending a verbal instruction notation in Mr Ciarelli's file. 147In addition to outlining the chronology of events Mr Baraldi indicated that the 2 day suspension imposed on Mr Ciarelli amounted to 24 hours out of a 38 hour week and was equivalent to a 64% financial penalty in his weekly salary equating to a loss of net earnings of $880 or gross earnings of approximately $1272. Mr Ciarelli's gross weekly salary at the time of the suspension was $1987.83. 148It was submitted that Mr Punshon's evidence was telling in two key areas that being the training and the use of the particular isolation procedure in question and relevant training (Gas Safety levl 2 for WBF2) had not been given to either Mr Punshon or the Furnace Operators on his crew and this meant they were unable to act properly in cases where equipment on the Furnace would need to be isolated unless supervised by a person with the appropriate accreditation. The Furnaces at the HSM were classified as a Major Hazard Facility and to not provide appropriate training was contrary to the provisions of the Occupational Health and Safety Regulation 2001 . 149It was submitted that the onus was not on an employee to seek out to be trained, but that the onus resided first and foremost within the employer to ensure that each employee was appropriately trained. The employee then worked cohesively with co-workers to maintain the relevant skills required to carry out the role. 150It was submitted that the Commission must consider the issue of the lack of training in the overall determination of this matter. 151Mr Punshon had raised issues of concern in his evidence about the procedure used by both Mr Ciarelli and subsequently by himself. His evidence had also raised issues with the use of a gas isolation procedure as a stand-alone instrument for carrying out gas regulations on WBF2 Nitrogen Key and Bleeders. These issues of concern were not properly addressed by the Company's evidence. Further Mr Munkman agreed that the SOP being developed by Mr Punshon would make carrying out of the task much clearer and prevent the potential of such incidents occurring again. 152Mr Baraldi also drew attention to Mr Punshon's evidence as to errors contained in the procedure used by Mr Ciarelli. The Company had made a great deal of the allegation that Mr Ciarelli could not have read the procedure word for word. However until such time as Mr Punshon actually reviewed that procedure word for word, no-one who had previously used the procedure had picked up the errors it contained. 153It was submitted that this must give rise to the Commission considering the current auditing and review process used in the HSM under the current management regime. 154Mr Ciarelli had consistently expressed the view, after discovering what he had done on 19 November 2010 and his admission that he had made a mistake and had not shied away from that fact throughout his evidence. His motivation to take the matter to the Commission was due to the severity of the disciplinary action taken against him and on seeing the Company's written evidence and the defamation of his character. 155Further, Mr Ciarelli raised legitimate concerns about the evidence from the Company concerning his training history. This was subsequently found to be flawed. The Company had ample opportunity to seek more accurate and comparable training pertaining to Mr Ciarelli but chose not to pursue the matter. On that basis the training plan and what it actually recorded was questionable and could not be relied upon as evidence in these proceedings. 156It was submitted that Mr Ciarelli was the first HSM employee to be suspended without pay for two shifts since the introduction of the new mill process in 1987 was aggrieved as to why he should be singled out for such severe discipline action. 157Mr Ciarelli had not been trained in specific departmental isolation procedures as required by the isolation regulations and the Company had failed to maintain a proper training and refresher training system within the HSM Department. 158Mr Baraldi raised a number of issues of concern with the investigation that was undertaken into the incident involving Mr Ciarelli which it was submitted gave rise to issues of procedural fairness which may be summarised as follows: Mr Munkman initiated the investigation but did not speak to either Mr Ciarelli or any of his crew. Mr Willets did not speak to Mr Ciarelli on the first day of the investigation. Both Mr Munkman and Mr Willets relied on what Mr Spicer told them Mr Ciarelli allegedly said. Mr Willets admitted he knew throughout that the procedure had been discarded in the bin on the Friday night. Mr Willets only found out in cross examination that Mr Munkman had not spoken to Mr Ciarelli directly. Mr Spicer kept no notes of his conversations with Mr Ciarelli and only relied on his recollection. Mr Willetts was not observed to be taking notes in the interview by either Mr Ciarelli or Mr Spicer. Mr Willets claimed to have checked Mr Ciarelli's training record confirming that he was a Performer for Locks 2 Theory but had not provided those records in evidence. 159Mr Baraldi took the Commission in some detail to a range of inconsistencies in the evidence (and in particular the written statements) as between Mr Munkman, Mr Spicer and Mr Willets. Those inconsistencies generally dealt with who said what, and to whom, and whereabouts it was said, and also exactly where the three men met to discuss the incident. He also dealt with inconsistencies in the evidence as between Mr Spicer and Mr Ciarelli. 160Mr Baraldi refuted the reasons given by Mr Willets as to the unacceptable nature of Mr Ciarelli's conduct in relation to the incident as follows: Did not carry out the de-isolation as per Company Isolation Procedure and as instructed by Mr Munkman: Mr. Ciarelli has admitted he didn't carry out the de-isolation. However, Mr. Munkman gave no instructions simply rang to advise whoever was on the phone that the isolation had to be lifted. Mr. Ciarelli just so happened to be in the operating chair at the time and subsequently volunteered to undertake the lifting of the isolation. Failure to do so placed WBF2 in a position of a decreased level of safety for a significant period of 60 hours: Mr. Munkman told Mr Willets in response to his query as to it creating a hazardous situation that it probably about didn't but would have meant a longer delay to the Mill. He also told him that there was if the Nitrogen didn't that there was a possibility that an explosion could occur in the burner pipe if unburnt fuel gas remains however this was not highly likely. Potentially could have caused increased delay to the Mill Throughput process: In cross examination Mr. Munkman said that a recovery from a furnace trip on WBF2 could take up to 5 minutes. Mr Ciarelli failed to provide clear direction and example for a Learner Operator: At no stage did Mr. Ciarelli show the procedure to Mr. Sharrock and instruct him on its use. Mr. Sharrock would have been none the wiser as to what Mr Ciarelli was doing as he never saw the procedure: Challenged Mr Ciarelli's ability to follow simple and clear procedures and his ability to train learner operators properly: There was no history of Mr. Ciarelli not following simple and clear procedures. Both Mr. Munkman and Mr. Willetts agreed that Mr Ciarelli had always followed more complex gas procedures at the furnace and that his record in this regard was unblemished. Mr Ciarelli had been untruthful and wasted the Company's time: There was no basis for this assessment as the only time Mr. Willetts spoke directly with Mr. Ciarelli was at the interview conducted on the Thursday 25th November 2010 and Mr Willets has acknowledged that Mr Ciarelli admitted he made a mistake, should have taken more time to read the procedure, mostly followed Gas Procedures that had separate isolation and de-isolation tick boxes, and did use the standard type isolation procedure and was not proficient in their use. 161Mr Baraldi submitted that Mr Willets' evidence referred to three issues which formed the basis for determining the appropriate form of disciplinary action: Mr Ciarelli's behaviour throughout the investigation, his employment history, and other recent incidents, and that these were important indicators when assessing whether Mr Ciarelli was afforded procedural fairness as follows: Mr Willetts relied on the information provided to him by Mr Spicer, and the third hand hearsay information provided to him by Mr Munkman who never spoke with Mr Ciarelli at all and could have determined his behaviour first hand in such negative connotations. Neither Mr Munkman nor Mr Willetts found fault with Mr Ciarelli's employment history in cross examination. There were no previous indiscretions or breaches spanning 16 year employment history. At no stage did the Company produce any evidence of recent incidents to support its claim that the disciplinary action taken against Mr Ciarelli was warranted. In contrast the AWU had produced evidence to support its contention that the disciplinary action was not warranted. 162It was submitted that Mr Willetts had relied so heavily on the evidence of Mr Spicer, and what Mr Spicer relayed to Mr Munkman, that it was a source of concern that Mr Ciarelli had been judged on such evidence and inconsistent evidence at best. Further given that Mr Ciarelli and Mr Spicer were at such odds as to what was allegedly said/not said during their meetings, the Commission would find difficulty in determining the truth. Additionally Mr Spicer was uncooperative and confrontational when questions were put to him, or when propositions were made and his evidence could not assist in these proceedings. 163It was further submitted that Mr Willetts was asked by the Commission if Mr Ciarelli's alleged conduct had influenced the outcome of the disciplinary action process in any way, and to the recollection of the AWU he appeared to distance himself from that proposition. However there was no doubt that Mr Willetts was influenced by what was told to him by Mr Spicer and what he thought Mr Munkman was telling him from direct conversations with Mr Ciarelli. Mr Willetts then relayed this information to Mr Lorenc and Mr Gerovasilis on the pretence that it was fact and had resulted from face to face discussions with Mr Ciarelli resulted in a gross miscarriage of the actual course of events. 164Mr Baraldi submitted that in considering the remedy sought on behalf of Mr Ciarelli the following matters had to be considered by the Commission: Whether t he evide n ce o f, in pa r t icu l a r, M r S p ic e r a nd Mr Will e tt s , was rel i a ble enough in i t s c on s i s t e ncy t o w a r r a nt s u f f i ci e nt weight being place on i t in relation to M r C i a r e lli's c on d u c t t hrough o u t t he in ves t ig at ion. It was uncl e a r w h a t le ve l o f t r a in i ng, if a ny, M r C i a r e lli h a d in r es pect o f Isol at ion Locks 2. The AWU c on t e nded t h a t t he c om pa ny f a il e d t o pr o ve b e yond r e a s on a ble d ou b t t h a t Mr Ci a r e lli w a s c o m pe te nt a t t he t ime o f t he inc i dent a nd a s it is o b l ig at e d t o do under t he I s ol a t i on Regula t ions a nd NSW O H S R e gul at ions 2 0 01 . The C o mp a ny's w i t n es s p l a ced t he o n u s ba ck o n M r Ci a r e lli a nd Mr Pun s hon f o r t h a t m a tt e r and to s hi f t t he re s p o n s ibility b a ck t o the employees was uncon s cionable for a C om pa ny t h a t a ll e gedly took safety seriously. T he q u es tion of t r a in i n g in t he H S M mu s t b e c on s ider e d. A t no s t a ge d id t he C o mp a ny p r o d uce ap p r o p ri at e evide n ce t o c o ntr a dict w h a t b o t h Mr Ci a r e lli a nd Mr Pun s hon h a d s a id in t h e ir w ri t t e n s tat e m e nts o f e v i dence in r e s pect o f t his p ro c e dure. A ga in, t he isol at ion r e gul at i ons pr o v i de t he nec ess a ry rem e dy for wh a t t he c om pa ny should h a ve d o ne in re s pect o f Specif i c D e p a r t m e nt a l Isol at ion s . T he r o le o f the supervisory persons involved should also be considered. 165In conclusion it was submitted that t he incide n t involv i ng Mr Ci a r e lli s h ould n o t b e vi e wed in i s o l at ion from a ll t he c on t ri b uting fa c t ors m a de o u t b y t he A WU. Given that it was a fir s t o f f e nc e , a nd giv e n Mr Ci a r e lli's empl o ym e nt hi s t ory a nd t he reg a r d in which he was he l d by his fe l low workers, t he p e n a lty imp o se d was unfair, unju s t , a nd u n r e a s on a ble in a ll circum s ta nc es . Submissions on behalf of BlueScope 166Mr Deardon made oral submissions in addition to the written submissions as filed (Exhibit 20) and in doing so took the Commission to relevant evidence. 167At the outset Mr Deardon rejected the AWU's submission that the Company had to meet the standard of "beyond reasonable doubt" submitting that the Commission was well aware that this was not the standard in this jurisdiction. 168It was submitted that the disciplinary action imposed on Mr Ciarelli was warranted in all of the circumstances and the Commission should dismiss the AWU application. 169It was not disputed that on 19 November 2010 Mr Ciarelli failed to properly de-isolate the North and South bleeders and nitrogen key resulting in nitrogen key remaining isolated for a period of approximately 60 hours until it was discovered by Mr Munkman on Monday, 22 November 2010. What was disputed was how Mr Ciarelli came to make this mistake. BlueScope maintained that he intentionally and/or recklessly disregarded the Isolation Procedure whereas Mr Ciarelli claimed he inadvertently failed to follow the isolation procedure through no fault of his own. 170It was submitted that the evidence of Mr Ciarelli and Mr Punshon should be viewed with caution. Mr Ciarelli's evidence was unreliable particularly in the light of this oral evidence. The evidence of Mr Willets, Mr Munkman and Mr Spicer should be preferred. Mr Deardon also pointed out that it was apparent from cross examination that both Mr Ciarelli and Mr Punshon each provided the other with their written evidence to read prior to the hearing and that Mr Ciarelli was untruthful when questioned about when he did share his evidence with Mr Punshon. 171Further, in his written evidence Mr Ciarelli admitted that his initial reaction was that the Isolation Procedure must have been missing some pages. However, he claimed that when he was shown the Isolation Procedure he accepted that it was complete. He then believed his kevlar gloves caused him to turn more than one page at a time without him noticing. 172Mr Deardon then drew particular attention to admissions made by Mr Ciarelli in oral evidence as follows: Page 1 of the Isolation Procedure summarises the total isolation task. Mr Ciarelli admitted he only gave cursory attention to the front page of the Isolation Procedure and in doing so, he did not see the two references to 5 locks on the bottom of that page; That he only read step 1 of page 2 of the Isolation Procedure. In doing so he missed the locks identified at steps 2 and 3 of that page; He did not read page 3 of the Isolation Procedure at all. He offered no explanation as to why he chose not to do this. Notwithstanding this, Mr Ciarelli somehow managed to remove the locks at steps 5 and 6. In this respect Mr Ciarelli admitted he followed his intuition in completing the de-isolation; He referred to page 4 but did not see the reference to 5 locks on that page either. 173It was submitted that whilst Mr Ciarelli had attempted to mitigate his actions by claiming that he had not been trained in this Isolation Procedure, this was never raised by Mr Ciarelli during the investigation and he could not now seek to use a lack of training as a shield to any disciplinary action. He had also made the following admissions in his evidence: He agreed to undertake the work, did so knowing he was not trained to undertake the task, did not tell anyone that he had not been trained with respect to the Isolation Procedure he was to follow, and did not raise this when Mr Munkman spoke to him about the task. He admitted that he just wanted to get the work done and suggested that this was the culture of the team he worked within at the Hot Strip Mill, but led no evidence in relation to this and such a comment was in direct contrast to the Company training sessions regarding safety and safety awareness. He admitted that he was aware that a written procedure was required for a 'complex isolation' and confirmed that a complex isolation required more than 3 locks. 174It was submitted that Mr Ciarelli was given a written Isolation Procedure on 19 November 2010 but had failed to explain how, in light of his knowledge of complex isolations, he thought it was appropriate to return with only 2 locks. As an absolute minimum he should have known that a minimum of 3 locks should have been returned. 175Mr Deardon further submitted that the evidence of Mr Punshon was largely irrelevant. The thrust of his evidence was that a Standard Operating Procedure (SOP) should have been developed for this task which included an isolation procedure. At best, Mr Munkman agreed that he could attempt to prepare such an SOP but said that it would be used in conjunction with the Isolation Procedure, not as a replacement. Additionally, Mr Munkman confirmed, in answer to a direct question from the Commission about whether a gas procedure was required, that as part of his investigation that he had discussed this with more senior gas people but essentially the isolation Mr Ciarelli was performing was fairly simple and no gas procedure was required. 176Mr Punshon had claimed the Isolation Procedure had errors and Mr Munkman agreed that the isolator label references were incorrect but made the point that if Mr Ciarelli had read these when he was completing the task then he would have identified this and his training would have meant he knew to stop and report this to his Team Leader. Mr Munkman also confirmed that there was no direct link between the documentary errors and the mistakes made on the night by Mr Ciarelli. 177It was submitted that this case was not about whether there was a better procedure to follow, but rather, whether Mr Ciarelli actually followed the procedure he was given. The evidence of Mr Ciarelli confirmed that he did not read the Isolation Procedure in any proper manner. 178It was submitted that Mr Ciarelli as a level 16 plus Hot Strip Mill Operator was at the highest operator level in the Port Kembla steelworks and in that regard the observations made by Connor C in The Australian Works Union v BlueScope Steel (AIS) Limited [200] NSWIRComm 1071 at para.181 were relevant. He also had a learner operator with him while performing the de-isolation and Mr Willets' evidence dealt with the relevance of this to the consideration of the appropriate disciplinary action to be taken against him. 179It was submitted that Mr Ciarelli's challenge to the disciplinary action on the basis that 'no one else has got in trouble either' did not withstand scrutiny and he needed to take responsibility for his own actions. He had admitted undergoing training and accreditation to achieve the level 16 plus position, was aware of the Company's expectations that he and his fellow operators comply with Company procedures. 180In relation to Occupational Health and Safety it was submitted that Mr Munkman's evidence about the Company needing to comply with major hazardous facility legislation was not really challenged by the AWU. Mr Ciarelli also agreed that BlueScope treated its responsibilities under the Occupational Health and Safety Act 2000 seriously and expected operators to work safely. 181It was submitted that the Company was entitled to treat any breach of safety procedures seriously and that the Commission should not be seen to condone any conduct on the part of employees in respect of a breach of safety rules or procedures of an employer. 182The Commission was reminded of the Company's responsibilities under section 8 of the OHS Act to "ensure the health, safety and welfare at work of all employees of the employer." 183The Commission was also taken to the provisions of s.20 of the OHS Act covering the obligations of employees to comply with their employer's safe systems of work. This was of particular significance for the Company which operated a large and complex business in an inherently dangerous industry. Both Mr Ciarelli and Mr Punshon had agreed that they, as employees, also had responsibilities under the OHS Act. 184The Commission was referred to Mr Munkman's evidence as to the potential of the failure to de-isolate in this particular case which he considered a 'major accident event', (the Coke Ovens gas pipe could have been prevented from being able to purge after a furnace trip which under certain conditions may have resulted in an explosion). Evidence which was not challenged by Mr Ciarelli and thus could be accepted by the Commission. Further, any failure to comply with the proper procedures exposed the Company to prosecution by WorkCover. 185In support of submissions concerning the seriousness with which the Company viewed it OH&S obligations, as well as the appropriate action to be taken in relation to safety breaches, reliance was placed on the following cases Inspector Ian Lancaster v BHP Steel (AIS) Pty Ltd [2001] NSWIRComm 261; Inspector Ross Wolf v BHP Steel (AIS) Pty Ltd [1999] NSWCIMC 89; Brown v BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1021; Jankoski v BHP Port Kembla (1996) 71 IR 313 and Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm. 186Mr Deardon rejected the submissions made by the AWU that the Company did not afford Mr Ciarelli procedural fairness. 187The Commission was taken to the evidence which set out the steps of the investigation and the opportunities afforded to Mr Ciarelli to tell the truth, including evidence about completion of a substitution test to try to determine whether Mr Ciarelli's explanation was valid or not. That was only done because Mr Ciarelli had been untruthful about pages being missing from the Isolation Procedure. Each time Mr Ciarelli's 'story did not add up', Mr Willets asked Mr Spicer to go back to him to give him a chance to put the full story forward. 188Further, Mr Ciarelli had a support person at his meeting with Mr Willets and at no time had that support person been called to give evidence in support of Mr Ciarelli's case or to corroborate his evidence. 189Whilst Mr Ciarelli claimed in cross examination that his gripe was the fact that he was the only one disciplined, that was not a valid reason for the Commission to intervene. 190It was submitted that the AWU had attempted to put various HARMinIE incident reports before the Commission as examples of inconsistent disciplinary action. However in each case there was no evidence of the explanation proffered by the people involved about what went wrong, no record of the mitigating circumstances or the actual reason for the incident. 191In conclusion it was submitted that the application should be dismissed. It was apparent that Mr Ciarelli had made no effort to read, or familiarise himself with, the Isolation Procedure. He did not read it properly and then when questioned was evasive and untruthful. Mr Ciarelli's admissions during cross examination confirmed yet another version of events that were not shared with the Company. For these reasons, and the reasons outlined in the Company's evidence, the Commission should decline to intervene in this matter. Submissions in Reply by the AWU 192Mr B araldi in reply rejected the contention by the Company that Mr Ciarelli had a support person present during the interview with Mr Willets on 25 November, on the basis that there was no evidence to support this. Mr Ciarelli had never been told that there was an investigation in place that could lead to disciplinary action at any of the meetings. It was only when he was told that he had to attend a meeting (with Mr Lorenc) concerning the outcome of the investigation that he took the Delegate with him. Consideration 193I have very carefully considered the evidence, both written and oral, the submissions of the parties and the authorities on which Mr Deardon has relied. 194Mr Deardon rightly submitted that in matters coming before the Commission, such as this dispute, the burden of proof to be applied is the civil standard of 'the balance of probabilities'. That has been established in numerous decisions of this Commission applying Briginshaw v Briginshaw (1938) 60 CLR 336 (see also New South Wales Nurses Association (on behalf of Prior) v South Eastern Sydney & Illawarra Area Health Service [2002] NSWIRComm 35). In dispute matters (be they pursuant to s.130 or s.146B) the onus is on the applicant (be it a union or an employer) to make out its case in seeking a remedy/orders (see New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Gosford City Council [2011] NSWIRComm 1026). 195It should be indicated at the outset that none of the witnesses (with the exception of Mr Willets) made contemporaneous notes of any of the conversations or events that took place either on, or following, the incident on 19 November 2010. All witnesses rely on their recollection of such conversations and events. There are differences between the content of certain conversations as amongst the BlueScope witnesses, and conflicts between who phoned who (as between Mr Spicer and Mr Munkman) or who said what or indeed just where such conversations took place. None of that detail is of any significant relevance, nor does it generally raise any issues of the credibility of those witnesses. Indeed as Mr Deardon points out this only serves to confirm that it is each witness's independent recollection of past events/conversations, however faulty that might be, without recourse to discussing that evidence with each other. 196The only issue of contention that is relevant are the differences in the respective accounts of the conversations between Mr Ciarelli and Mr Spicer. This will be commented on further below. 197There were a number of other rather irrelevant issues/matters raised during the proceedings, with considerable time spent on what were essentially dead ends or frankly chasing rabbits down rabbit holes. Examples of those (but by no means all of such issues/matters) are set out below. 198Differences in/contradictions between the evidence of BlueScope's witnesses See my comments above. 199Whether or not Mr Ciarelli told Mr Spicer that the procedure had been thrown in the bin. This was a total non-issue. It is totally irrelevant as to whether or not Mr Ciarelli did advise Mr Spicer of the whereabouts of this document I accept that he may well have. What was the relevant issue was whether the procedure was still in the bin as at Wednesday 24 November when Mr Ciarelli was being spoken to. That was what was not known as at the first conversation and clearly, given the time lapse since the incident, it probably would have been reasonable to assume that it would not still be there. As it turned out however, it was (fortuitously). There was no suggestion ever made, or understood, that Mr Ciarelli was not being honest it what he said about the discarding of the procedure and no issue of credit is raised by this. Given that it was standard practice to so discard procedures after they had been followed, then it doesn't really matter who discarded it, although it is accepted that it was Mr Tagliapietra. What Mr Ciarelli/AWU did seem to imply however was that Mr Tagliatietra was somehow at fault to do so. That clearly was not the case and any such implication is rejected. 200Mr Munkman did not speak directly to Mr Ciarelli and both he and Mr Willets relied on Mr Spicer's account of his conversation/s with Mr Ciarelli. This may have been have been relevant if there had been no meeting of the three men (Willets/Munkman/Spicer) on 24 November, but there was. Mr Spicer was actually present when Mr Munkman told Mr Willets what Mr Ciarelli had said, (having already been told that information by Mr Spicer), if Mr Munkman had been incorrect in what he relayed, or mistaken, then Mr Spicer had the opportunity to correct him but, on the evidence did not. I fail to see any significance in whether or not Mr Willets was under the impression that Mr Munkman had obtained that information first hand or in the difference between what was essentially a summary of "2 pages missing" and reference to specifically numbered pages. In any event Mr Ciarelli's oral evidence confirmed just what he actually did. That will be commented on further. 201Previous HARMinIE Reports about other incidents These were not particularly relevant, or of great assistance. In the main neither Mr Willets nor Mr Munkton had any knowledge as to the details concerning those incidents, nor were they involved in any investigation of them. There was one Report concerning an issue where the procedure itself was flawed, and was thus clearly not comparable, and another where the person responsible could not be identified, again not comparable. Those Reports which may have been comparable were not subject of any detailed evidence before the Commission to establish the facts and circumstances pertaining thereto and thus do not assist the Commission in any way. 202Whether or not Mr Ciarelli is the first Operator at the HSM to ever receive an unpaid suspension. BlueScope, (and in particular Mr Gerovasilis), in its consideration of the severity of the incident and the appropriate disciplinary penalty to be imposed on Mr Ciarelli relied for comparison on an earlier incident which had occurred in another section but which came under the umbrella of Mr Gerovasilis' responsibility as Manager Hot Strip Mill - the entire business unit comprised of (on the evidence) - the Hot Strip Mill, the Roll Shop, the Hot Coil Process department and the Unanderra Coil Plant. 203Such reliance was not inappropriate. I accept however that Mr Ciarelli is the first Operator in the Hot Strip Mill per se to receive an unpaid suspension. That reflects the good record of employees in the HSM, in general, and Mr Ciarelli's previously unblemished record, in particular. That is not disputed by BlueScope. 204However merely because Mr Ciarelli is the first Operator to receive an unpaid suspension does not of itself generate any particular significance/relevance. The issue to be determined is whether or not the incident that occurred on 19 November 2010 in which Mr Ciarelli was involved merited the level of disciplinary action that was imposed. 205Mr Ciarelli's Training history/ Mr Ciarelli had not been specifically trained in Isolation Procedures The first time Mr Ciarelli's training (or lack thereof) was raised, in relation to the procedure involved in the incident, was in this hearing. Any perceived lack of specific training may have had some relevance if Mr Ciarelli had raised this issue on 19 November with either Mr Munkman, Mr Tagliapietra or Mr Spicer, or raised it at any time on the 24/25 November during the investigative process. The issue is not that it is being suggested that an employee should have to say to the employer what training he should be given, but that an Operator, who is asked to do a task and believes he is not able to so because he is not trained for such, should raise that with his supervisor to enable appropriate action to be taken (be that receiving training/guided assistance in the task/ someone else to do the task). It is clear that this is the course of action envisaged by the Company's "take two" policy. If Mr Ciarelli did indeed consider, at the time, that he had not been trained properly/sufficiently to carry out this procedure then he should not have carried it out. 206What is generally put by BlueScope is, that as an experienced Level 16 Operator, the highest level in the HSM I gather, and with his years of experience, as well as being an accredited trainer of other Operators, Mr Ciarelli should have been able to apply his training and knowledge generally to what was a relatively simple and straight forward isolation procedure. The most basic, fundamental and first step of which would be to read the procedure thoroughly. A step that Mr Punshon had no difficulty following and in doing so, as a result, identified mistakes within the procedure. 207I fully accept and endorse that proposition. 208Alleged failure of BlueScope to follow the Gas Regulations/OH&S Isolation Regulations There was insufficient technical and expert evidence to make any finding in relation to this allegation made by the AWU. In any event this case is not about failure by BlueScope but failure by Mr Ciarelli to properly, and with the requisite care and attention, follow what is, even to the Commission, a readily understandable procedure with pretty straight forward instructions. If there are OH&S issues the AWU wishes to pursue then that should be done in the appropriate manner. 209Having said that, it is clear that Mr Munkman did take into consideration the issues raised by the AWU generally and discussed the issue (whether there should be an accompanying gas procedure) with more senior and expert staff. BlueScope has made the decision that such is not necessary. That is a matter for BlueScope (and the AWU, if it wishes to take this issue further). 210Mr Munkman also accepted that the isolation procedure could possibly be set out in a better way with the same boxes to be ticked to indicate completion as is the case in a gas procedure. However he also said that those isolation procedures had developed and been used that way for some time and had worked thus far and thus saw no real reason to change. Again, it gets back to the fact that there would have been no problem with the procedure if Mr Ciarelli had taken the time and care to simply read it thoroughly first. 211I accept Mr Munkman's evidence about the procedure that is being developed by Mr Punshon, and that is that essentially Mr Punshon indicated that it was something he would do and Mr Munkman agreed to that, not that Mr Munkman specifically, on his own initiative, formally requested Mr Punshon to carry out the task. There was no firm indication that any such revised procedure would be taken up and used by the Company. 212I also accept that there are steps, none of which are of overwhelming significance, that should probably have been taken by the Company for abundant caution (I put it no higher than that) as follows: Mr Munkman should have advised Mr Spicer of the Isolation required to be performed on a carry-over shift basis by one of his team. In any event Mr Munkman has been spoken to about this and this will be done in the future; There was no evidence as to any checking of what handover did take place between Mr Relf and Mr Tagliapietra; Mr Tagliapietra should have signed off on the procedure and does not appear to have been spoken to about this; Mr Munkman did not check back as to the shift supervisions that should have taken place (and might have picked something up) over the intervening 60 hours between the incident and his discovery of the locks not lifted. However in this regard I note that this may not have been productive as there did not appear to be any requirement (none was mentioned) about listing/notifying in any way isolations in place/proposed from shift to shift generally apart from Isolation Coordinators. Also given that the sight of a yellow lock on an item of plant is not unusual and would not necessarily excite any untoward concern this may have been a fruitless exercise in any event. 213This takes me back to consideration of the incident itself. 214I do not accept that Mr Ciarelli at any time prior to his reply witness statement mentioned that because of the wearing of his Kevlar gloves this led him to accidentally turn 2 or more pages together. This is a post facto excuse frankly. One would have thought, in any event, that it would be appropriate to remove such gloves to enable a stapled document to have pages turned properly and then replace them before proceeding to carry out the task. 215Similarly I prefer Mr Spicer's evidence as to the effect of the conversations between them and that Mr Ciarelli initially said that pages were missing and that the procedure he had only had two locks on it and that he stuck to this version up until the interview with Mr Willets. 216I also accept that the first time Mr Ciarelli acknowledged that he had made a mistake was in the interview with Mr Willets. 217Frankly I prefer the evidence of BlueScope's witnesses, even with their contradictions which are not relevant, over that of Mr Ciarelli. All the way through both his attitude and that of the AWU (rather disappointingly) has essentially been "I just made a mistake" as if that were the end of the matter but with attempts made to shift the blame on to others' shortcomings (Mr Tagliapietra, Mr Munkman, Company procedures, lack of training etc.), almost as if it was a case of "I made a mistake but its not my fault". 218I am deeply concerned that Mr Ciarelli has just not fully accepted responsibility for his carelessness and total failure to adequately perform a task he should have been quite capable of performing. I reject entirely his assertion that the Company has made him the "fall guy" and there were no consequences for others who had a role to play. That is clearly not the case on the evidence. 219Furthermore I am also concerned that Mr Ciarelli had a Learner/Operator, Mr Sharrock, with him who, presumably, was supposed to learn from this experience. All Mr Sharrock would have gained from this incident, and I trust this has been pointed out to him, is how not to perform an isolation procedure. 220Yes Mr Ciarelli made a mistake, but it was an entirely unavoidable mistake and arose, in my view, simply because Mr CIarelli was careless, inattentive, slack and extremely complacent to the inherent safety issues involved in the task and indeed complacent to the fact that, as he now has said, he may have had insufficient specific training and should not therefore have leapt in to volunteer to do the task instead of Mr Ngo and instead should have raised the issue of training or lack of experience in such procedures on the night. If indeed they were even issues at the time which I very much doubt, being further examples of post facto justification or basically excuses for his own carelessness. 221What makes the whole incident even worse is that there was no proper example set for Mr Sharrock the Learner/Operator. What example was set was an extremely poor one. 222A further concern I have, as already expressed above, is that Mr Ciarelli seems not to be prepared to accept responsibility for his own actions. It was only during the course of cross examination that he finally acknowledged that he did not read the procedure properly. Even if one was to accept his excuse that he must have somehow turned two or more pages over and missed relevant pages this entirely ignores inter alia the following: Apart from the description of the procedure on the first page, that page also clearly states at the bottom right hand corner "Multi-Locks required: 5 Padlocks Required: 5", Each page is numbered in such a way as to make perfectly clear how many pages comprised the procedure in total e.g. 1 of 8, 2 of 8, 3 of 8 etc. so even if he had thought he only had 2 or 3 pages it would have been obvious that the procedure was not complete and further enquiries would then have been warranted, The 2 locks that he did lift on page 3 (Step 5 & 6) are set out immediately below one of the 3 locks that he failed to lift. Page 8 was up on the board and listed, as indeed did page 5, all of the equipment to be isolated - including the 3 locks not lifted. 223The reality is that Mr Ciarelli just did not take the time, as he should have done, to read the procedure in any way other than merely glancing at it and making assumptions, and to that extent was extremely careless and derelict in his duty as an experienced and skilled Operator. 224It is clear from Mr Willets' evidence that if Mr Ciarelli had been honest from the start and admitted that he simply did not take the time to read the procedure carefully, rather than make excuses for his lapse in failing to properly and completely carry out a task and to the safety level required and to be expected, then in all likelihood there would have been a lesser disciplinary penalty imposed. Although clearly such a careless lapse from an experienced and skilled Operator would have still have attracted (and warranted) some form of disciplinary action, at the least a written warning, but I would still think such a careless approach in the safety conscious environment in which Mr Ciarelli works may still have warranted some form of unpaid suspension. 225Mr Ciarelli ought to have known better. He is an experienced and skilled Operator with an unblemished work history. Just as those are relevant matters to be taken into account by an employer and a Tribunal when assessing an appropriate penalty for some action, it also means that there is a greater expectation that such an experienced and skilled employee will do the right thing and follow established procedure (especially when even the most basic step was not followed as highlighted above). 226As I observed in my unreported decision in Juleff v Linfox IRC 4293/2004 (17 June 2005): Mr Juleff seems to rely on the fact that he was employed for some 15 years, with an unblemished record. That is not challenged by the Company. However, lengthy unblemished service is what can be considered a two- edged sword. Whilst on one hand, it might be relied down by an employee where issues might arise that might be totally out of character with an employee's length of service and unblemished record, such as a drop-off in performance or perhaps some issue that might arise as to absenteeism. In those instances it might naturally be expected that because of that length of service and the good record, an employer might, to use the colloquial term, "cut a bit of slack" for that employee on that occasion. However, when it comes to issues of serious misconduct such as theft and other serious matters, such as engaging in fighting in the workplace, then an employee's length of service imposes a greater responsibility on that employee to, in fact, be aware of the company's policies and to follow those policies. There can be no doubt that Mr Juleff was aware of his obligations, was aware that he did the wrong thing, was aware that he made a very foolish mistake, a very silly mistake, and essentially threw away 15 years' good service." 227There is no doubt that the issue of safety, and working safely, is of paramount concern to BlueScope and that concern has been acknowledged, and indeed shared, in numerous decisions of this Commission. Indeed Connor C recently succinctly summarised that approach in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers' Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1006 as follows: 31. Indeed in the past in dealing with disciplinary matters involving steelwork employees I have, in fact, raised safety issues in the Port Kembla steelworks to the level of a fundamental condition for all employees working there. For instance, in my decision of Wednesday 19 December, 2007 in Abbott and Markham v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm1087, involving the dismissal of two employees who failed to isolate power to equipment in coke ovens at the steelworks, I went so far as to suggest (at para. 45 and 46) that: "...such a fundamental breach of an important condition 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 do not consider that (the respondent's advocate) has to prove their act was deliberate , only that they were recklessly negligent. I believe that they were. 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 (dismissed employees) strikes at the heart of their employment in the steelworks..." 32. However, it is always open to an employer to chose a lesser penalty to dismissal, eg counselling or a warning, having regard to an employee's otherwise overall clean employment record. It is also a legitimate function of industrial tribunals in the country to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: the punishment should fit the crime [ Metropolitan Meat Industry Board v Australasian Meat Industry Employee's Union (1973) AR 231 at p. 233 and Pacific Power v Crump (1993) 48 IR 296 at p. 302]. 228I consider that in relation to the incident of 19 November 2010 Mr Ciarelli's actions can also be considered as 'negligent', however I would not go so far as to categorise his actions as 'recklessly negligent'. 229I do not consider that there has been any failure to afford procedural fairness to Mr Ciarelli. I do not consider that it was necessary for him to have a support person present during the first two conversations with Mr Spicer, I am sure that if he had felt the need of a support person he could have asked for one. Essentially what Mr Spicer was doing was engaging in a fact finding exercise, simply seeking an explanation for what had occurred on 19 November. An exercise that would, I suggest, be done countless times by Team Leaders/Supervisors. At that stage no-one would be certain of whether or not a disciplinary process might flow from that fact finding. Mr Ciarelli had a support person at the relevant interview which was with Mr Willets when matters had moved to a formal stage. 230I also don't think anything turns on the fact that Mr Spicer kept no notes (neither did Mr Ciarelli). That is clearly a matter (unless the Company indicates otherwise) for the individual at that stage of the process. I would hazard a guess that Team Leaders/Supervisors would be taking endless notes if this had to be done every time they sought an explanation of something that had happened on their shift. 231The only issue that I would raise is that if Mr Ciarelli had been told about the 'substitution test' and had been taken through it to show that his explanations just did not stand up whether that would have made any difference to the explanation he gave. That of course is a hypothetical, but something for the Company to consider in any similar situation in the future. 232Having carefully considered all of the evidence and the facts of this matter, I consider that the actions of Mr Ciarelli were careless, slack and so far below the standard of what could be reasonably expected from an Operator of his experience and skill level, not to mention the seriousness of the incident and the implications of whether he would similarly be so careless on other procedures, (a concern held by the Company with some justification in my view), that the penalty imposed by BlueScope of an unpaid two day suspension and warning letter is entirely appropriate. 233The application by the AWU is therefore dismissed. This matter is concluded. Elizabeth Bishop 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: 19 July 2011