Awu o/b Burgess & Onesteel Manufacturing P/L [2003] NSWIRComm 1079 (22 December 2003)

Last Updated: 13 February 2004

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: REDMAN, C

22 December 2003

MATTER NO. IRC 2003/5040

IN THE MATTER OF The Australian Workers' Union, New South Wales (on behalf of Ian David Burgess) and OneSteel Manufacturing Pty Limited

Application by The Australian Workers' Union, New South Wales on behalf of its member Ian David Burgess regarding Unfair Dismissal pursuant to Section 84 of the New South Wales Industrial Relations Act 1996

DECISION

1 This is an application filed by the Australian Workers' Union, New South Wales (the Union) on behalf of Ian David Burgess claiming relief under Part 6 of the New South Wales Industrial Relations Act 1996 (the Act) - Unfair Dismissals. Mr Burgess was dismissed by OneSteel Manufacturing Pty Limited (Onesteel) on 5 September 2003 where he had been employed as an inspector in OneSteel's Rod Mill in Newcastle. Mr Burgess was dismissed for alleged misconduct and performance issues.

2 In its case outline OneSteel declares that Mr Burgess had been "repeatedly warned, counselled and disciplined by a number of supervisors and managers" regarding performance and conduct issues which OneSteel claim included "aggressive behaviour, a failure to follow isolation procedures, a failure to wait for relief, inattention to inspection practices and his overall attitude and approach to his duties.

3 OneSteel draws attention to particular events between February 1999 and August 2003 said to be relevant to the decision to dismiss him. The final incident which led to management's decision to dismiss Mr Burgess occurred on 29 August 2003 when on evening shift Mr Burgess went to a crib room and fell asleep during a time which was not his crib break. This action resulted in the mill being stopped for about 20 minutes.

4 There followed representations by the Union on 1, 2 and 3 September and on 5 September OneSteel confirmed the decision to dismiss Mr Burgess. Mr Burgess was paid 4 weeks pay in lieu of notice.

THE EVIDENCE

Scott O'Connor

5 Mr O'Connor is the Manager of the Newcastle Rod Mill and has held that position since April 2001. Prior to that time he held various management positions in the Rod and Bar Mills over a period of 6 or 7 years. Mr O'Connor is responsible for the supervision of approximately 170 employees, 22 of whom are members of staff.

6 Mr O'Connor's evidence surveyed incidents involving Mr Burgess. In May 2002 Mr Burgess was issued with a verbal warning and directed to undertake re-training in inspection practices.

7 In November 2002 Mr Burgess was suspended for one shift for leaving his inspection job before his relief had arrived on the shift.

8 Mr O'Connor's evidence in relation to the incident which occurred on the night shift on 29 August 2003 details the sequence of events from the time when he was advised on Monday 1 September by the shift manager that the mill had stopped due to a delay at the inspectors' station. The advice relevantly was that the Shift Manager had found Mr Burgess asleep sitting in a crib room when it was not his crib break at the time the mill had stopped.

9 In the course of interviewing Mr Burgess on 1 September in company with other members of management and Mr Burgess's Union Delegate, Mr McGuiness, Mr Burgess initially stated that he thought it was his crib break and that was the reason why he was in the crib room. However later in the interview he admitted that he had taken his crib break earlier in the shift. Mr Burgess also stated during the course of the interview that he was aware that the job he was working on when the mill stopped was a job known as a "special" which required 3 inspectors to be on the job for the work to be completed effectively. Following further discussions between management and other relevant personnel Mr Burgess was suspended with pay for the remainder of the day shift and was instructed not to report for his usual night shift. Further investigations were conducted by Mr O'Connor on 1 September. Those investigations by Mr O'Connor enabled him to determine that work had stopped at the inspectors' station for at least 20 minutes which had resulted in considerable loss to OneSteel at the rate of $12,000 per hour.

10 It was Mr O'Connor's evidence that prior to concluding the investigation he had a further discussion with Mr Burgess concerning his personal circumstances with the aim, it was stated, to determine "whether there were any exceptional circumstances to mitigate against his conduct".

11 Mr O'Connor decided to dismiss Mr Burgess on the grounds of his misconduct in relation to his absence off the job and what he described as "related performance issues".

12 The decision to terminate Mr Burgess followed a meeting at which Mr Maher the Union Secretary was able to attend and at that conference the Union made alternative proposals to Mr Burgess's termination of employment however those proposals were rejected by Mr O'Connor.

Ian David Burgess

13 Mr Burgess's statement reveals that he commenced employment in the Rod Mill in January 1984 when the Rod Mill was owned by BHP Pty Ltd. In 2000 the Rod Mill became part of Onesteel. Mr Burgess reviewed the sequence of relevant events that occurred on the night shift on 29 August and stated that he took his crib break between 8.00 and 8.30 pm and at 9.00 pm when Mr Alan Smith returned to the job from his crib break Mr Burgess decided that because there were no coils at that time at his inspection station to return to the crib room. There were at the time delays where the trimmers were working and because at that time he felt tired. Mr Burgess stated that there was some confusion between him and Mr Todarovski who he thought was still in the inspection station at the time he decided to return to the crib room. He believed that his decision to return to the crib room coincided with a work situation where trimmers were still putting the scraps on the hooks and there was still "a straight fall of coils for the rest of the shift".

14 Mr Burgess admits that he fell asleep at the crib room table and was woken by Mr Todarovski banging on the crib room door directing him to return to the inspection station.

15 Mr Burgess claims that the overtime he had worked in the week leading up to his dismissal caused his tiredness on 29 August 2003. In that week he worked day shift on Monday and then a doubler which meant that he left the Rod Mill at midnight and resumed work at 7.45am on Tuesday 26 August. He had about 6 hours sleep that night. He finished work on Tuesday at 4.00 pm and commenced work on Wednesday at 8.00 am and finished that shift at 4.00 pm. On Thursday 28 August he did a shift swap with a fellow employee, swapping his day shift for the other employee's afternoon shift therefore starting work at about 4.00 pm. That shift finished at midnight and he resumed work at about 8.00 am for the start of his normal shift having had about 5 hours sleep. He was then asked to work a double shift and it was on that second shift or doubler when he fell asleep in the crib room.

16 Mr Burgess claims that up until 9.00 pm on 29 August to have worked 259 hours over the 5 week period averaging about 52 hours per week. His evidence was that in the previous month he worked 246 hours averaging about 49 hours per week.

17 It was Mr Burgess's further and uncontested evidence that he has not been absent due to sickness for almost 13 years and it was not until 1995 after 11 years employment, that he received a verbal warning for leaving the work area about 15 minutes early. Two years later in 1997 he was warned for being aggressive towards another employee after what he described as a "shouting match" had occurred. Two years after that he was again counselled and given a final warning for not applying isolation procedures correctly and for his below standard performance. Three years later he was issued with a written warning for failure to carry out the job properly and he was required to undergo some retraining. In November 2002 he was suspended for one shift for leaving the job early.

18 Mr Burgess claims that his dismissal was unfair asserting that his employment record is good with only "a couple of blemishes on it". Mr Burgess stated that he is not a "serial offender" with only 5 entries on his history card after almost 20 years of service.

19 Mr Burgess refers to what he described as "positive reports" from his supervisor in April 2002 quoting:

Ian has always had no problem helping other people.

In general, Ian's attitude and behaviour have been good.

I am quite happy with Ian's performance although ...

Ian is the only person on the shift that has no recorded day of since I have been Manager, so far this performance is excellent.

Ian has always taken responsibility for his area.

20 Mr Burgess also refers to a report on him in June 2002 quoting:

Ian's attitude has always been very much against management's practices due to his Union position but his behaviour has always been very acceptable to me.

Ian has just been through a hard time due to his concentration on night work.

21 In a report on 25 September 2002 referred to by Mr Burgess the following appears:

Ian's performance has certainly improved since the last incident.

22 Mr Burgess referred to his willingness to work overtime which led to very high earnings in the 2002-2003 financial year in excess of $75,000 including an overtime component of $32,200 which he says equates to 786 hours or about 19 hours per week on average.

William McGuiness

23 Mr McGuiness is the Union delegate with 27 years service and he has been delegate for 17 years.

24 Mr McGuiness has stated that Mr Moss who has been called by the respondent has said to Mr McGuiness that if he was short of people in the Mill then he knew that Mr Burgess is one of those employees who would respond to the call to come to work in order to keep the Mill in production and that Mr Burgess would be "very flexible and work outside his comfort zone to keep the mill rolling".

25 It was Mr McGuiness's further evidence that he had represented Mr Burgess in representations to Mr O'Connor and after Mr Burgess had been dismissed he continued to make representations to Mr O'Connor aimed at having the dismissal cancelled. However Mr O'Connor had declined to reinstate Mr Burgess advising Mr McGuiness that he believed that if he were to give Mr Burgess "another chance it would only be a matter of time before he would be sacked again".

26 In addition Mr McGuiness stated that Mr O'Connor had proposed to him a system of roster to be introduced into the finishing end of the line requiring employees to sign on and off for their breaks, however this matter while it was discussed formally with the Union Secretary, Mr Maher, was not progressed.

Vasilious Stavros

27 Mr Stavros's evidence was that he has been employed by OneSteel as a Shift Co-ordinator in the Rod Mill since 1999 and prior to that time had been employed by OneSteel and formerly BHP Pty Ltd in various positions in the Bloom Caster including in supervisory positions since 1992.

28 Mr Stavros supervises 31 persons on shift and reports to Mr O'Connor. He manages all functions running the shifts including the human resources function. He has supervised Mr Burgess from time to time since 1999. Mr Stavros's evidence went to the November 2002 incident at the Rod Mill when without authorisation Mr Burgess took an early shower break and went home at about 3.15 pm notwithstanding that his on-coming relief had not arrived at work. This was in contravention of the Company's Code Of Conduct. As a result of Mr Burgess and another inspector leaving the shift early, production in the Mill was held up and Mr Burgess was subsequently suspended for one shift.

29 Mr Stavros's evidence was that in his experience supervising Mr Burgess he had found that Mr Burgess "tends not to pay sufficient attention to detail and at times this leads him to repeat similar errors".

Stephen Harry Moss

30 Mr Moss's evidence was that he is employed by OneSteel as Shift Manager in the Rod Mill where he has worked in that and similar roles since 1974. He supervises about 26 employees on shift and reports to Mr O'Connor.

31 Mr Moss's evidence went to the circumstances relevant to this application which occurred on 29 August 2003 and in particular his evidence dealt with the Mill stoppage which caused him to enter the trimmers' crib room looking for inspectors when he saw Mr Burgess sitting asleep in a chair.

32 Mr Moss had been present during the subsequent interviews with Mr Burgess and his evidence dealt with his previous involvement with Mr Burgess where he had either directly supervised him or had other dealings with Mr Burgess over a period of about 20 years. It was Mr Moss's evidence that in his opinion Mr Burgess requires continual monitoring because he tends to pay insufficient attention to his duties. Mr Moss cited examples when Mr Burgess was employed as a Gauger and failed to take samples of the rod in accordance with requirements and another example occurred about 6 weeks before Mr Burgess's dismissal when Mr Burgess was involved in a roll change and put the incorrect roll on a section he was working on.

33 Mr Moss declared that Mr Burgess "makes continual mistakes because he does not pay sufficient attention to detail and is very slack" and he declared that he would not feel comfortable if Mr Burgess was on the job.

MEDICAL EVIDENCE

34 During the course of his oral evidence Mr Burgess stated that after his dismissal he had been diagnosed as suffering from a mild obstructive sleep apnoea.

35 A medical certificate issued by the Royal Newcastle Hospital on 20 November 2003 declared that Mr Burgess had been an outpatient from 19 to 20 November and has been diagnosed as suffering from mild obstructive sleep apnoea. The medical certificate was tendered without objection and Mr Burgess stated that he had a further appointment to attend the hospital for treatment scheduled for 2 December.

36 On the matter of medical evidence Mr Lloyd for OneSteel was granted leave to apply after the completion of the proceedings to re-open proceedings in the light of the late presentation of the medical evidence. Subsequently Mr Lloyd communicated with the Commission advising that his client did not wish to make further submissions on the medical evidence.

SUBMISSIONS

37 Mr Lloyd took the Commission to the relevant parts of the OneSteel Manufacturing Pty Ltd Newcastle Rod & Bar Award (the Award) and submitted that while the Award notice period is one week, four week's pay in lieu of notice was paid to Mr Burgess following his dismissal in accordance with obligations under the Workplace Relations Act which provides a minimum notice period of 4 weeks or pay in lieu except in cases of serious misconduct.

38 Mr Lloyd submitted that his client particularly relies on the incidents referred to in the case outline, namely the occurrences of 25 February 1999, May/June 2002, 15 November 2002 and 29 August 2003.

39 It was submitted that the dismissal occurred after a proper investigation process was undertaken in relation to the events of 29 August 2003 as well as consideration of the matters put to management by Mr Burgess and his Union representatives. OneSteel maintains that the dismissal of Mr Burgess was in all the circumstances not unfair when consideration is given to the evidence before the Commission and particularly given that the events of 29 August 2003 are not in dispute.

40 OneSteel characterises the various incidents in 2002 and 2003 as "serious" going to Mr Burgess' conduct and performance. Consideration should be given to the relevance of past warnings and counselling sessions and disciplinary action taken in relation to Mr Burgess in respect of the earlier incidents. It is noted that there was a final warning in 1999 over an isolation incident and he undertook re-training.

41 On the matter of Mr Burgess's outstanding sick leave record Mr Lloyd submitted in response to a discussion with the bench that that record may be a reflection of Mr Burgess's "good health".

42 Mr Lloyd further submitted that a consideration of all of the factors in this case would lead to an objective view that the dismissal was not harsh, unreasonable or unjust. In the alternative it was submitted by Mr Lloyd that if the Commission takes a view contrary to that submitted by OneSteel then reinstatement is not practicable and he referred to Mr O'Connor's evidence in submitting that the Commission could not have confidence that Mr Burgess would have an on-going ability to perform the essential requirements of the job. He submitted that there are particular recurring problems with Mr Burgess in his job where it involves the production of critical product known as "specials" and that if Mr Burgess were to be reinstated he would have to be managed and supervised to a greater degree than would other employees.

43 It was submitted that if the Commission is against the Company and its submissions then rather than reinstatement the Commission should consider monetary compensation as an alternative.

44 Mr Maher submitted that Mr Burgess should be reinstated to his former position and should also not suffer any financial loss as a result of dismissal which the Union contended is harsh, unreasonable and unjust. In addition he should be reinstated without loss of continuity of service.

45 Mr Maher submitted that the dismissal was too harsh in the circumstances and posed the rhetorical question "does the punishment fit the crime?" In support of this Mr Maher quoted from the judgement of Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch reported at 1973 A.R. at 231. In citing this case Mr Maher submitted that the case leaves it open to the Commission to examine the severity of the dismissal.

46 Mr Maher made further submissions going to the recent relevant history in Mr Burgess's employment and the fact that he has accepted that there were issues but Mr Maher described him as "an honest man" who at the initial meeting with Mr O'Connor out of concern and fear had at first claimed that he was in the crib room on his lunch break but later corrected that assertion.

47 Mr Maher further submitted that the Rod Mill is no longer as it used to be when it was part of the huge BHP complex and that

"it's a whole new ball game now and a new manager who expects, you know, 120% effort and there's nothing wrong with that, from all his employees including old stagers like Mr Burgess, not old in age, he's only 43 but you know, nearly 20 years service, nearly half of his life has been spent in the Rod Mill under a completely different rod mill than the one he's asked to work in now".

48 Mr Maher went on to submit that the Rod Mill now has a new culture where the Rod Mill has to exist under fierce competition from imports.

49 On the question of whether or not Mr Burgess is sufficiently responsible and flexible were he to be reinstated back into the new culture at the Rod Mill, Mr Maher referred to the amount of overtime which had been worked by Mr Burgess and the fact the extent of that overtime was working against Mr Burgess' health. Further it was submitted that now that Mr Burgess' mild obstructive sleep apnoea has been diagnosed a plan is in place to remedy that condition.

50 Mr Maher asserted that Mr Burgess is not a "serial offender" and that in his opinion the employer / employee relationship has not completely broken down. Despite Mr O'Connor's evidence it was submitted that the evidence of Mr Stavros and Mr Moss would indicate that the relationship could be restored.

51 Mr Maher submitted that there is a current vacancy in the Bar Mill if the Commission were to order Mr Burgess's reemployment or reinstatement to another area but conceded "that Mr Burgess has to pull his socks up in terms of his concentration, his attention to detail".

CONSIDERATION

52 At the outset I find that the investigative procedures undertaken by OneSteel on and subsequent to the 29 August 2003 in relation to Mr Burgess's conduct were comprehensive and in accordance with Award prescriptions and were not flawed as to any procedural deficiencies. Indeed the whole process undertaken by Mr O'Connor and his staff was conducted in a measured and thorough manner and Mr Burgess and his Union were afforded every reasonable opportunity to make full representations to management.

53 The incident of 29 August was the catalyst which led to Mr Burgess's dismissal and management in considering a form of penalty appropriate to that incident were entitled to and did take into account the whole of Mr Burgess's employment history as revealed on his record card.

54 However the consideration of Mr Burgess's employment history with OneSteel and the predecessor BHP was a consideration which focussed on negative aspects of his employment to the exclusion of positive aspects. Those positive aspects over a very long period of 19 ½ years would in fairness have included the long and valuable service which he rendered to the Company as revealed by the evidence. It was a history of co-operation in his ever preparedness to respond positively to requests to work overtime and in addition there was his quite extraordinarily good sick leave record.

55 The management focus on the negative aspects of Mr Burgess's employment as revealed in notations on his record card will be seen to have occurred over the last few years. I find on the evidence that for the majority of his employment Mr Burgess had an unblemished work record. I also find that there is evidence that he has become inattentive and unresponsive to work requirements on the job over the last few years which should, in my opinion, have warranted a further consideration of what it was that has lately caused a serious decline in performance by what hitherto had been a satisfactory employee. The only useful evidence in this regard unfortunately was forthcoming after Mr Burgess's dismissal. That evidence regarding his mild obstructive sleep apnoea may be a clue as to why Mr Burgess's performance has deteriorated.

56 The stated reason for termination being "repeated misconduct with respect to attendance on the job and related performance issues" needs to be viewed in the light of the gravity of the alleged misconduct and the gravity of the related performance issues. This is so because of the gravity of the punishment became the most serious punishment, namely dismissal. The question arises then was dismissal the appropriate penalty in all of the circumstances of this case?

57 I find that the circumstances of 29 August incident were indeed serious in nature and in the absence of any prior adverse notation would I am confident have resulted in a suspension perhaps of quite some duration. Whether that incident alone would have led to dismissal which could be sustained on appeal I strongly doubt. However as I have already observed management took into account all of the adverse performance issues which were revealed on Mr Burgess's history card and came to a view that it could no longer rely upon him to attend on the job in accordance with normal procedures. The evidence put forward by Mr O'Connor was particularly strong in regard to his conclusion that he could no longer trust Mr Burgess as a result of the chain of events culminating in the incident of 29 August and this he raised forcefully as a barrier to a plea for reinstatement or reemployment.

58 The position formerly occupied by Mr Burgess did carry with it considerable responsibility in as much as the inspection tasks associated with the continuous process critically required attendance otherwise the line stopped with significant loss of production as a consequence. I find that Mr Burgess was guilty of misconduct of a serious order on 29 August and that of itself warranted a severe penalty however, in all of the circumstances and having taken into account the whole of his employment history, especially his extraordinary sick leave record, I find that dismissal was an extreme penalty and too severe and therefore harsh, unreasonable and unjust.

59 I propose to order Mr Burgess's reemployment to another position available at OneSteel.

ORDER

60 Pursuant to Section 89(2) - Reemployment, of the Act, the Commission Orders OneSteel to reemploy Mr Ian Burgess in another position that OneSteel has available and suitable on and from 29 December 2003.

61 Pursuant to Section 89(4) - Continuity, of the Act, the Commission Orders that the period of employment of Mr Ian Burgess with OneSteel is taken not to have been broken by his dismissal on 5 September 2003 and his reemployment on 29 December 2003.

62 No Order is made under Section 89(3) of the Act.

63 This Order is made on 22 December 2003.