Howland -v- Cement Australia [2006] NSWIRComm 1107 (7 July 2006)

Last Updated: 9 August 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Howland -v- Cement Australia [2006] NSWIRComm 1107



FILE NUMBER(S): 6293

HEARING DATE(S): 20/06/06,21/06/06

DECISION DATE: 07/07/2006
PARTIES:
APPLICANT
Kerry John Howland
RESPONDENT
Cement Australia Pty ltd

JUDGMENT OF: Cambridge C


LEGAL REPRESENTATIVES

APPLICANT
Mr I Morrison with Mr V Overton from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch.
RESPONDENT
Mr S Benson, barrister, with Mr A Powter, solicitor
Solicitors for Respondent
Gillis Delaney Lawyers

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]



JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE

7 July 2006

Matter No IRC 6293 of 2005

Kerry John Howland -v- Cement Australia Pty Ltd

Application by K Howland pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal.

DECISION

[2006] NSWIRComm 1107

1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 2 December 2005, by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, (the AMWU), on behalf of Kerry John Howland (the applicant), and named the respondent employer as Cement Australia Pty Ltd (the employer).

2 There were earlier, related Industrial Dispute proceedings in matter number IRC05/5731. The Industrial Dispute proceedings were discontinued after the unfair dismissal claim had been filed. Following unsuccessful conciliation, the unfair dismissal matter has proceeded to Arbitration involving two days of Hearing, 20 and 21 June 2006, in Bathurst.

BACKGROUND

3 The applicant is a man who was some 39 years of age at the time of his dismissal. The applicant was employed as a Fitter-Welder for a period of approximately 11 years and 6 months. The applicant had no recorded warnings or disciplinary issues during his period of employment. The employer relevantly operates a cement manufacturing plant located at Kandos. There are approximately 100 employees engaged at the Kandos site.

4 The applicant was dismissed on 8 November 2005. The applicant was contacted at home and asked to attend a meeting at the employer's Kandos site office. At the meeting the applicant was verbally advised of his dismissal and provided with a letter of dismissal dated 8 November 2005, signed by David Cusack, the employer's Operations Manager.

5 The applicant was dismissed because he failed to follow an occupational health and safety procedure involving the isolation of an electric motor by means of a "lock out and tag out" procedure. The employer determined that the applicant's actions represented gross and wilful misconduct and described the applicant's dismissal as summary although one month's salary was paid in lieu of notice.

6 The employer's letter of dismissal indicated that the applicant was found to have "... disregard for isolation procedures on 25 October 2005" and that the applicant's "...breach of these procedures could have resulted in serious injury to yourself or others." These conclusions were reached after the employer had conducted an investigation into an incident that occurred on 25 October 2005, at the tertiary crusher located at the Kandos site.

7 In brief, the incident on 25 October commenced shortly after 6:00 pm when the applicant was recalled to work to assist in fixing a "break-down" that had stopped the tertiary crusher operation. The tertiary crusher had become blocked and flexible "v-belts" that drive part of the crusher operation had been burnt off, presumably as the powerful (circa 150kw) electric motor continued to apply force to the pulley upon which the "v-belts" were fixed. Therefore to return the crusher to operation two obvious tasks were required; the blockage had to be cleared, and the "v-belts" had to be replaced.

8 Shortly after arrival at the crusher the applicant noticed that two production workers had opened an inspection door on the crusher and they had apparently been attempting to clear the blockage of limestone material. The replacement of the "v-belts" required the removal of a large steel and wire mesh guard that covered the pulleys and the inter-connecting "v-belts". The applicant set up a chain block lifting device to remove the guard. The applicant, with the assistance of an apprentice, lifted the guard without first ensuring that the electric motor was isolated via the "lock out and tag out" procedure.

9 The applicant removed one or more of the broken "v-belts' and went elsewhere on site to locate replacement "v-belts". After returning to the crusher with the replacement "v-belts" the applicant noticed that the apprentice could not rotate the driven pulley and this suggested that the crusher was still blocked. The applicant then ascended to the crusher inspection door area where he had seen the production workers a short time earlier. The applicant then looked into the crusher to confirm that it remained blocked, he stepped back from the inspection door and fell into an open and unguarded trapdoor section of the walkway. The applicant was injured when he fell, first aid was administered, an ambulance was called, he was taken to hospital and discharged after having a wound in his left thigh sutured. He was provided with a medical certificate indicating that he would be unfit for duties until, at least, 14 November 2005.

10 Consequently the applicant was absent from work and in receipt of workers compensation payments when he was called into work, firstly on 1 November 2005, for an interview as part of the employer's investigation into the incident of 25 October, and secondly, on 8 November, when he was dismissed.

11 On or about 9 November 2005, the employees at the Kandos site took strike action in response to the dismissal of the applicant. The employer made notification of an Industrial Dispute under section 130 of the Act, and in that matter, IRC05/5731, the Commission made recommendations which included the following:

" The Commission strongly recommends that the members of the AMWU, AWU and ETU (collectively the Unions), engaged by Cement Australia Holdings at its Kandos operations, shall cease all industrial action and return to work as soon as practicable. The members of the Unions engaged by Cement Australia Holdings at its Kandos operations shall cease and desist from taking any form of industrial action for a period of one calendar month from today 10 November 2005."

12 Following the return to work at the Kandos site, the AMWU commenced these proceedings seeking to have the applicant reinstated to his former position with the employer.

THE EVIDENCE

13 Considerable contest arose from evidence about one particular aspect of the incident of 25 October 2005. During the course of his oral testimony, the applicant mentioned that he had lifted the guard that covered the crusher pulleys and "v-belts" by only about "4 or 5 inches" so as to remove the broken "v-belts". This evidence concerning the alleged partial lifting of the guard was, according to the employer, the first occasion that the applicant had offered such detailed description of his activities at the time of the incident of 25 October.

14 The employer led directly contradictory evidence including photographs taken at approximately 7:00 pm on 25 October 2005, which showed the guard suspended via the chain block at a height of about 900mm above the platform on which the electric motor was situated. Further, the employer strongly asserted that other evidence including notes taken during the applicant's interview on 1 November, was plainly inconsistent with the applicant's most recent revelations of the alleged partial lifting of the guard.

15 This contest would have been unlikely to have arisen had the Commission been provided with witness evidence from any one of the other eye witnesses to the incident of 25 October. In particular it was curious that neither side called the apprentice to give evidence. However, the extent to which the applicant lifted the guard on the evening of 25 October 2005, is not crucial to the primary determination required.

16 The fundamental safety breach for which the applicant was dismissed occurred at that point in time when he commenced to lift the guard without first isolating the electric motor via the "lock out and tag out" procedure. Therefore the extent or height of the lift would be irrelevant, unless there was evidence of a conscious decision to stop the lift to enable the "lock out and tag out" to be performed. The evidentiary contest about the height that the applicant lifted the guard was instead developed by the employer as a basis for challenge to the credit of the applicant's testimony generally.

17 The applicant was one of three witnesses called to provide evidence in support of the claim. Mr Vince Overton provided evidence in his capacity as the AMWU Official who has had direct responsibility for the Kandos site for a number of years. The evidence from Mr Overton and that from Mr Edward Norris, the AMWU delegate at the Kandos site for the past 16 years, primarily concerned the reaction by other workers at the site to the applicant's dismissal, and the general knowledge and adoption of safety policies and protocols including the "lock out and tag out" isolation procedure. This evidence, particularly that emanating from the testimony of Mr Norris, was particularly disturbing as it related to some apparent, broad discredit for a number of aspects of the employer's occupational health and safety practices and initiatives.

18 During the Hearing the Commission was moved to make comment directly to the employer's representatives about the immediate need to rectify any perception, whether warranted or not, that the employer's approach to occupational health and safety was infected with tokenism. As one example, evidence of employees being instructed to sign the acknowledgement on page 20 of the induction booklet (Exhibit 6), on the basis that they could read the booklet later in their own time, was a matter of disturbing importance. Employees would understandably perceive that the employer was primarily concerned with obtaining the employees' signatures as a presentation of discharge of responsibility rather than ensure that the employees were actually informed. Consequently the information in the booklet becomes valueless, and the employees are left with the impression that occupational health and safety is all about the employer "covering its backside" and shifting any blame onto the employees. This is indeed a regrettable background against which to contemplate the dismissal of an employee for breach of safety procedure.

19 The applicant provided the substantial amount of evidence in support of the claim. The applicant's presentation and demeanour as a witness can be best described as difficult. However, the bitter disposition of the applicant can be explained by the impact that his dismissal has had on himself and his family. In addition to the ordinarily anticipated impacts of dismissal from employment, the applicant lost a $10,000 deposit he had paid on the purchase of a block of land. Further, the applicant has been forced to sell his home and move to rented accommodation. Understandably his marriage and family relationships have been greatly stressed as he has been unable to find any substantial alternative employment in the restricted labour market of the Kandos area.

20 Although the Commission has considerable sympathy for the plight of the applicant, his difficult demeanour at times verged upon belligerence. The applicant's bitterness towards the employer manifest as potentially the most significant impracticality for reinstatement and appears to have contributed to the implausible evidence that he offered about the partial lifting of the guard when changing the "v-belts" on 25 October.

21 Consequently the Commission has not been prepared to adopt the applicant's testimony in its entirety. However, rather than recording any deliberate intention to provide false evidence, the applicant's more recent adoption of the partial lifting of the guard has been a manifestation created by a more beneficial revision, influenced strongly by the emotion surrounding his dismissal and its subsequent impacts upon financial and family circumstances. I believe that if the applicant was given further opportunity to very carefully reconsider this aspect of his testimony he would except that, with the passing of time, his memory of the incident may have been clouded with emotion and he would honestly admit to a mistake.

22 The evidence about the incident on 25 October can therefore settle with that version that was established by the employer's investigation and upon which the decision to dismiss was made.

23 There were a total of four witnesses called to provide evidence on behalf of the employer. The Commission also viewed a DVD of approximately 8 minutes duration which the employer had produced as an occupational health and safety teaching aid for the "lock out and tag out" procedure. The DVD has become Exhibit 5 and the Commission has reviewed the DVD on a number of occasions as part of the consideration of this matter. The Commission is pleased to record that the content and production quality of the DVD is highly commendable. In contrast to the evidence concerning the signing of the induction booklet, the "lock out and tag out" DVD represents an appropriate, high quality, relevant and comprehendible teaching aid that greatly enhances the employer's approach to occupational health and safety.

24 The most surprising aspect of the evidentiary case advanced on behalf of the employer involved the absence of any evidence from the person who made the decision to dismiss the applicant. Apparently the decision to dismiss the applicant was taken by a Mr Leon who at no stage during the investigation into the incident of 25 October, or at any time before the dismissal, had any contact whatsoever with the applicant.

25 The employer led evidence from the Safety Health and Environment Manager, Mr Joe McCurry. Mr McCurry was closely involved in the investigation into the incident of 25 October. Mr McCurry provided detailed evidence about the seriousness of the applicant's failure to follow the "lock out and tag out" procedure. Further evidence particularly concerning the employer's investigation and interview with the applicant on 1 November 2005, was provided by Mr David Cusack, the Kandos Operations Manager. The evidence provided by Messes McCurry and Cusack included a detailed examination of the employers policy as it concerned the stated position for breach of procedure.

26 The Commission accepts the veracity of the evidence provided by all witnesses called by the employer. In particular the Commission was impressed by the sincerity with which particularly Messes McCurry and Cusack considered the seriousness that should attach to the applicant's failure to isolate the electric motor before commencing to lift the guard on 25 October. However neither Mr McCurry nor Mr Cusack made the decision to dismiss the applicant and it would be wrong for the Commission to translate their evidence into the mind of the decision maker.

27 The evidence about the investigation into the incident of 25 October and the process that led to the applicant's dismissal on 8 November, was broadly uncontested.

THE CASE FOR THE APPLICANT

28 Mr I Morrison from the AMWU appeared for the applicant at the Hearing. Mr Morrison commenced his submissions by strongly asserting that the applicant's actions did not justify his summary dismissal.

29 Mr Morrison referred to various decided cases concerning summary dismissal for gross and wilful misconduct. Mr Morrison submitted that the applicant's actions could not be characterised to be of a nature so as to strike at an essential element of the contract of service, and thus could not provide basis for summary dismissal. Mr Morrison referred to the various decided cases which had confirmed the need for an employer to properly establish that there was gross and wilful misconduct before invoking summary dismissal.

30 Mr Morrison further submitted that particularly as the applicant's breach of the safety procedure was a single incident, that action could not be considered serious enough so as to strike at an essential element of the contract of service. Further, according to Mr Morrison, the applicant's actions were neither wilful nor deliberate and could therefore not provide proper basis for summary dismissal.

31 Mr Morrison made further submissions which examined the Company's policy about breach of procedure. Mr Morrison submitted that the applicant's actions were an error of judgement, and the employer's policy specifically exempted errors of judgement from any disciplinary penalty, let alone dismissal. Mr Morrison submitted that even if the Commission was disposed to contemplate that the applicant's failure to isolate the electric motor could lead to the commencement of disciplinary procedures, such commencement could not translate into basis for dismissal.

32 Mr Morrison made further submissions about the particular impact that the dismissal had upon the applicant. Mr Morrison submitted that there were especially harsh consequences that emerged in the present case. Mr Morrison said that the Commission should have regard for the particular difficulties that the applicant had suffered as a consequence of his dismissal.

33 Mr Morrison submitted that the dismissal of the applicant should be held to be harsh, unreasonable and unjust and that the primary remedy of reinstatement should be provided. Mr Morrison urged the Commission to find accordingly and to make Orders for reinstatement and for payment of all lost remuneration suffered by the applicant.

THE CASE FOR THE EMPLOYER

34 Mr S Benson, barrister, appeared for the employer at the Hearing. Mr Benson commenced his submissions by referring to the Enterprise Agreement which was the relevant industrial instrument that governed the employment of the applicant. Mr Benson submitted that the employer had implemented the summary dismissal of the applicant in accordance with the relevant provisions of the Enterprise Agreement. Mr Benson submitted that the employer maintained the right to summarily dismiss the applicant for his proven serious and wilful misconduct.

35 Mr Benson submitted that the conduct that led to the applicant's dismissal was conduct or misconduct that was serious and wilful and reflected a rejection of the contract of employment. Mr Benson submitted that the applicant breached a fundamental term of his responsibilities as a maintenance Fitter-Welder. Further, according to Mr Benson the applicant had breached obligations that were imposed upon him by virtue of section 20 of the New South Wales Occupational Health and Safety Act.

36 Mr Benson submitted that the essential key facts were not contentious in this instance. The actual circumstances of the incident of 25 October were broadly consistent, save for the evidence about the alleged partial lifting of the guard. Mr Benson said that this particular contest was a point of detail that reflected poorly upon the applicant's credit. Mr Benson said that the applicant's version involving a partial lifting of the guard was "simply incredible".

37 Mr Benson made further submissions which urged the Commission to recognise that the applicant had received significant instruction in the safe methods that should have been followed, and which he disregarded. Further, Mr Benson said that there was evidence to conclude that as the applicant was recalled to work he was motivated to finish the job of repairing the crusher as quickly as he could. In these circumstances, Mr Benson said that the applicant did not conduct the most fundamental risk assessment that he was clearly obliged to adopt as an essential element of his work as a Fitter-Welder. Mr Benson submitted that this fundamental error overcame any deficiencies if such existed, in respect of the employer's policy. Mr Benson submitted that there was no question of an error of judgement, but a complete absence of any judgement on the part of the applicant and therefore the applicant could not rely upon the detail of the policy as a means to obtain a "get out of jail free card".

38 Mr Benson submitted that the applicant's failure to isolate the electric motor was such a fundamental failure to perform an essential element of his role that that error represented misconduct establishing serious and wilful misconduct that justified his summary dismissal. Consequently according to the submissions made by Mr Benson, the applicant's claim for unfair dismissal should be dismissed.

39 Mr Benson made a further alternative submission which he said in no way resiled from his primary submission regarding the dismissal of the claim. In this alternative submission, Mr Benson submitted that if the Commission was minded to reinstate the applicant, that any such reinstatement should not include payment for any remuneration or "back pay". Mr Benson said that given the nature of the applicant's breach of procedure, some recognition for that involving a clear sanction from the Commission was required. Mr Benson submitted that such a sanction should involve no Orders for "back pay".

40 In conclusion, Mr Benson returned to his primary submissions and asserted that there was no proper basis for the Commission to intervene in the employer's decision to dismiss the applicant.

CONSIDERATION

The Incident of 25 October

41 As mentioned earlier in this Decision, the Commission has rejected that evidence from the applicant that suggested that he lifted the guard only partially (4 or 5 inches), on the evening of 25 October. In any event, the fundamental breach of procedure occurred when the applicant commenced to lift the guard without first isolating the electric motor. The subsequent investigation undertaken by the employer properly established the factual circumstances as can now be confirmed upon the Hearing of this matter.

42 The employer had established the factual circumstances involving the clear failure to "lock out and tag out" the electric motor on 25 October. The applicant protested as to the practical safety risk that was created as a result of his failure to isolate the electric motor. Essentially, the applicant advanced that because the crusher was jammed there was diminished risk to either himself or the apprentice. This proposition must be categorically rejected.

43 At one stage during cross-examination the applicant suggested that if he had not fallen through the walkway trapdoor he would have noticed that the isolation switch was not "locked out and tagged out" and then he would have isolated the motor before completing the "v-belt" replacement. This is disturbing evidence because it verifies that there should have been an isolation of the electric motor before starting the job, not part way through it. Also, this evidence demonstrates that the applicant failed to properly recognise that although the driven pulley may have been jammed the drive pulley would operate freely if electricity was applied to the motor.

44 Although it was very unlikely that there would be any power up of the electric motor, if it had been inadvertently started while either the applicant or the apprentice were near it, either removing or fitting "v-belts", the consequences would have been disastrous. There can be no doubt that the applicant's failure to isolate the electric motor before commencing to lift the guard, was a clear breach of safety procedure that created risk of serious injury. The seriousness of the 25 October breach of procedure can not be overstated.

The Employer's Stated Policy

45 The employer has well developed documented safety procedures. The relevant isolation and lockout procedure document was attached to the witness statement of Mr Cusack, (Exhibit 11 -Annexure "E"). The safety procedure document included section 2.8 entitled "Breach of Procedure". The following extracts from section 2.8 of the safety procedure document are reproduced:

"2.8.2 Failure to isolate, lockout and tag, except where the failure is due to an error of judgement as to whether there is an element of risk to personal safety by operation of equipment, shall result in the commencement of the disciplinary procedure.

2.8.3 The following UNAUTHORISED ACTIONS shall result in dismissal PROVIDED an employee has been trained and assessed in the Isolation and Lockout Procedure and its application.

2.8.3.1 Changing the position of a energy isolator when a Safety Lockout Lock and Safety Tag is attached.

2.8.3.2 Removing another employee's Personal Safety Lockout Lock and Safety Tag, or an Authorised Persons Group Safety Lockout Lock and safety Tag, without appropriate procedures prescribed in this document being followed."

46 The construction and contents of sections 2.8.2 and 2.8.3 of the employer's safety procedure document makes clear distinction between the anticipated consequences arising from a breach of procedure that involved a failure to isolate (2.8.2), as compared to either a change to the position of an isolator (2.8.3.1), or removal of another person's isolator lockout lock and tag (2.8.3.2). The distinction clearly attaches a more stringent punishment for change or removal of someone else's isolator lock and tag than for a failure to "lock out and tag out".

47 The employer's stated policy requires that the applicant's breach of procedure on 25 October, be dealt with under section 2.8.2. and that at its highest, this involves the commencement of the disciplinary procedure. Further, the more stringent punishment mentioned in section 2.8.3, that being dismissal, may be unavailable because the particular breaches which are specified in 2.8.3 do not include failure to isolate. The specific words of 2.8.3 modify the general words of 2.8.2, (specialia generalibus derogant), such that a single failure to isolate could only result in dismissal if it had been specifically included in 2.8.3.

48 It appeared that the employer may have attempted to circumvent the constraints that arose from the stated policy by utilising a provision in the disciplinary procedures. The disciplinary procedures are mentioned in section 2.8.2 and are potentially accessible or at least able to be commenced. Clause 40.5 of the disciplinary procedures states:

"Nothing in the procedure shall limit the right of Australian Cement Kandos to summarily dismiss an employee for serious and wilful misconduct."

49 The employer described the applicant's dismissal as summary yet, curiously, it paid 4 weeks wages in lieu of notice. The employer submitted that the applicant was guilty of serious and gross misconduct and could therefore rely upon clause 40.5 of the disciplinary procedure. There is a fundamental incongruity with a summary dismissal and payment of 4 weeks notice. This incongruity provides support for the proposition that the employer's stated policy did not permit the dismissal of the applicant for one, single breach of safety procedure involving a failure to isolate via the "lock out and tag out" procedure. The payment of the four weeks notice is reflective of a more realistic assessment of the gravity of the applicant's conduct on 25 October.

An Intentional Act to Risk Injury

50 The employer asserted that the applicant was guilty of serious and wilful misconduct when he breached a safety procedure and exposed himself and the apprentice to potential catastrophic injury. This assertion infers that the applicant deliberately acted to risk harm to himself and others. Although I accept that there exists a physiological trait broadly described as sado-masochism, there was no evidence that the applicant showed any disposition towards self harm or brutality towards colleagues including apprentices.

51 Any employer that adopts occupational health and safety policies and procedures that contain underlying inferences that employees might deliberately hurt themselves at work, will, in all likelihood, maintain a hostile and unhealthy workplace. It is broadly accepted that good occupational health and safety practice will be based upon the notion of shared responsibility. An employer as the manager of the workplace, has a responsibility to gain and maintain the confidence of employees and others, that it is genuine in its concern for the health and welfare of its employees. There can be no such confidence developed upon a foundation that infers that employees intentionally hurt themselves and others.

52 There is a recognised need for certain punitive measures to be available in circumstances where there is deliberate contravention of safety policies and procedures. However if such punitive sanctions are used in circumstances that involve genuine human error particularly in single incidents as opposed to repeated acts, the general confidence needed to provide for genuine shared responsibility will be lost. The rigid enforcement of prescriptive penalties for breaches of occupational health and safety procedures might modify some particular behaviour in the short term but it will not establish an enduring, healthy and safe workplace.

Only The Fault Of The Applicant

53 The suggestion that the dismissal of the applicant was to protect himself and others from harm only fans the flames of discredit for an occupational health and safety approach that is perceived as disingenuous. At no point did the employer identify or acknowledge any aspect of the incident of 25 October which may have represented a component, no matter how small, that the employer contributed to the incident.

54 The Commission did not have the benefit of an immediate post incident inspection of the site. However a number of particular issues can be identified which may properly establish that the employer could be held to have contributed to the incident involving the failure to isolate the electric motor before lifting the guard.

55 Firstly, there was no warning sign on the guard alerting of any danger associated with its removal. At approximately 5 minutes 24 seconds into the "lock out tag out" DVD there is a relevant example of a warning sign affixed to a guard elsewhere on the site and which reads: "DANGER- Isolate Energy Source Before Removing Guard". It is speculative but nevertheless relevant to postulate that had such a warning sign been affixed to the tertiary crusher guard it would have "triggered" the applicant's thought processes such that he would have isolated the motor before commencing the lift. Why hasn't the employer put such a sign on the guard?

56 Secondly, the employer has no standard safe operating procedure for the specific task of replacement of the tertiary crusher "v-belts". Despite the evidence that the "v-belt" replacement is required on a regular basis, the employer has, by omission, countenanced a work method that is imprecise and potentially unsafe. The evidence from the Maintenance Team Leader confirmed that the "rolling" of the "v-belts" onto the pulleys has represented the acceptable work method because to do the job more safely by unbolting and shifting the electric motor, would take 4 hours or more. The delay would primarily be caused by the need to clean up crusher dirt and other material to gain access to the bolts that locate the electric motor.

57 Thirdly, the absence of a designated Leader or Supervisor is a potentially relevant factor that can not be attributed to the applicant. It seemed that at times other than day shift, the co-ordination and supervision of the tasks associated with returning the crusher to operation is left to the various production and maintenance personnel that actually perform the various tasks. The employer appeared to be content with the notion that an event such as crusher break-down would be rectified without one particular individual being clearly identified as the person in charge of all aspects of the operation. Regrettably, Team Leaders and other supervisory staff attended the site only after the applicant was injured.

58 Fourthly, there was evidence that the area near the crusher guard was either poorly lit or the lighting that was in place was inadequate or faulty (flickering). Consequently, given the time of the early evening in October, the applicant would have had the additional incentive to get the job done before whatever natural light there was disappeared.

59 Fifthly, there was evidence that the apprentice did not have any safety locks and tags although the applicant apparently had 4. This issue could not be examined further given that the apprentice was not called to provide evidence. However, there was no evidence of the employer subsequently establishing why the apprentice was without the safety locks and tags. The absence of this evidence was somewhat disconcerting as the apprentice was not offered further employment as a consequence of his apparent role in the incident of 25 October 2005.

60 Sixthly, there was no evidence of the employer undertaking a broader investigation and analysis of the underlying causes of the crusher break-down and the burn out of the "v-belts". Although one would anticipate that blockages of limestone in a tertiary crusher might be simply unavoidable, there appeared to be no contemplation of any rectification of that aspect of the event that caused the "v-belts" to burn out. For example, there was no suggestion that the frequency of the need to have the "v-belts" replaced could be greatly reduced if some type of either a friction clutch or friction/force electrical cut out was installed on the drive pulley attached to the electric motor. The absence of any evidence of consideration of broader remedial action is suggestive that the employer's occupational health and safety and its more general management techniques, may be more reactive rather than proactive.

61 The aforementioned issues relating to the incident of 25 October, provide no excuse, or reduce the seriousness of the applicant's failure to isolate the electric motor before commencing to lift the guard. The six factors identified above do not alter the applicant's clear breach of safety procedure. It is undeniable that the applicant acted wrongly. However, that the employer did not identify even one issue which might represent something that the employer could have done better, displays an unacceptable absence of any genuine, shared responsibly for occupational health and safety.

Dismissal by Remote Control

62 The decision to dismiss the applicant was taken by a Mr Leon who was not called to give evidence in these proceedings. The absence of evidence from the decision maker is ordinarily problematic in one of these matters. In this instance this difficulty was compounded by evidence that the decision maker had no contact with the applicant concerning the incident of 25 October, and the subsequent decision to dismiss.

63 It is difficult to accept that it could be reasonable or just for any employee to be dismissed without a fundamental process that included the opportunity to put a case, face to face, with the decision maker. Although the requirement for such process is primarily derived from the notions of natural justice, it's absence can also properly infer a lack of courage to face the accused employee. If the decision maker can not, or will not, deliver the dismissal message themselves, face to face, he or she risks creating the appearance that they do not have the courage of their convictions. In addition, both the legal and ethical basis for the decision is open to manifest challenge.

64 There are some exceptional circumstances where a decision to dismiss might be appropriately taken without need to provide the employee with an opportunity to be heard, usually in person. These exceptional circumstances involve acts of such gross and wilful misconduct, admitted or undeniably existent, that no further inquiry is warranted because no possible explanation or mitigation could alter the decision. It follows that the nature of the applicant's transgression must be treated as being of a type and gravity that, prima facie, could not be open to contemplation of any punishment other than dismissal. For if some other outcome could be possible as a matter of logic and natural justice, the decision maker would have to hear from the applicant.

65 The applicant's breach of safety procedure was established by the employer's investigation. The employer initially treated the nature of this transgression as open to further consideration and the applicant was called into a meeting on 1 November. Consequently the employer did not act consistent with the applicant having committed an act of gross and wilful misconduct that could be categorised as exceptional so as to allow the decision maker to move to determination without hearing from the applicant in person.

66 The Commission has no evidence as to what weight, if any, the decision maker may have given to factors that might have provided for a determination to apply a lesser punishment to dismissal. Although Messes McCurry and Cusack seemed to be convinced that dismissal was the appropriate punishment this conclusion was primarily based upon a view that was expressed as "..the Company cannot risk a similar event of like nature occurring again." Exhibit 11 @ paragraph 49.

67 The employer may need to act cautiously and guard against any myopic and simplistic thinking that overlooks the need to create and maintain essential credibility both in perception and reality, of the employer's occupational health and safety policies and procedures. Moreover, the momentum that is generated by an apparent conviction to remove the serious risk in the form of the applicant, provides great potential for the treatment of the applicant to become an example for others. Therefore, if the applicant's dismissal is used, perhaps even unintentionally, as a means of communicating the seriousness of the employer's approach to occupational health and safety, the decision maker would need to ensure that the decision is properly founded upon the relevant circumstances and not subjectively inflated for collateral purposes. Regrettably the Commission has no direct evidence about what extent, if any, Mr Leon considered this particular factor let alone other issues such as the applicant's long, unblemished work record.

Inconsistent Treatment

68 The production workers who were attempting to unblock the crusher on 25 October were disciplined for their part in the incident. The production workers were apparently given disciplinary warnings about leaving the walkway unguarded and therefore allowing for the applicant's fall and injury. The perception of inconsistent treatment of the production workers vis a vis the applicant, would have been obvious from the outset. This apparent inconsistency would be compounded by the applicant having sustained an actual injury, perhaps largely directly attributable to the production workers failure to close the trapdoor in the walkway. Conversely, no one had actually sustained an injury as a result of the applicant's failure to isolate the electric motor.

69 There is considerable difficulty attached to prescribing a range of punishments for various breaches of occupational health and safety procedures. The process can easily become nothing more than a horror contest. The penalty regime is unlikely to provide long term modification of unsafe practices and may camouflage other practices which are not highly ranked on the penalty scale. For instance, the applicant's single failure to isolate an electric motor equalled dismissal and the failure of the production workers to close a trapdoor equalled a disciplinary warning. If one of the production workers fails to close another trapdoor on another occasion he would realistically expect another warning perhaps more strongly worded. However, what if the person that falls through the (second) unguarded trapdoor is decapitated? The attempt to rank breaches of safety procedures with correlated punishments, one seemingly more serious than another, will often lead to unintended outcomes while not necessary providing a safer workplace.

70 There was little, if any, explanation for the vastly different punishments imposed upon the applicant as compared to the production workers. The main reason for the different punishments involved the suggestion that the nature and extent of any injury arising from a failure to isolate an electric motor would likely be greater than for a fall through an open trapdoor. There was also a suggestion that the applicant had been involved in specific "lock out and tag out" training while there may not have been similar training for the trapdoor safety issue. Even if some clear distinction could be made between the two breaches of safety procedure, there was no clear explanation provided by the employer about the significantly different punishments.

71 The evidence suggested that because the Company had been implementing safety programs in the "lock out and tag out" procedure including the DVD, it may have been more conscious of this particular issue. There may have even been some offence or insult taken that the applicant breached a particular procedure that the Company had spent considerable time and money trying to highlight. There was evidence that the employer was trying to upgrade the seriousness that it wished to apply to the "lock out and tag out" procedure. The evidence provided by Mr McCurry on this point was particularly relevant See transcript of proceedings (20/06/06) @ pages 97-98..

72 Consequently the dismissal of the applicant may have been in part, prompted by the employer's deliberate upgrade of the emphasis that it wished to apply to the "lock out and tag out" procedure. This may provide some explanation for the different punishments provided to the applicant when compared to that for the production workers. However these extraneous issues represent an unreasonable component upon which to base the dismissal. In effect the applicant could justifiably believe that he may have become something of a scapegoat.

CONCLUSIONS

73 The applicant was dismissed for a breach of safety procedure. The factual circumstances of the safety breach have been confirmed upon Hearing.

74 The employer described the applicant's breach of safety procedure as gross and wilful misconduct. However, upon careful examination it has become clear that the applicant's actions have been misconstrued by the employer. The employer erroneously determined that the applicant's breach of safety was an act of gross and wilful misconduct.

75 The employer was wrong in finding that the applicant's breach of safety procedure constituted gross and wilful misconduct warranting dismissal because;

(a) such a finding was inconsistent with the employer's stated policy where at section 2.8.2 at its highest, the employer was obliged to treat a single incident of failure to isolate, lockout and tag, as an act requiring the commencement of disciplinary procedure as opposed to other single acts specified in section 2.8.3 which could or would, result in dismissal;

and,

(b) there was no established intention or mens rea upon which to find that the actions of the applicant in failing to isolate the motor were deliberate, particularly as such a finding would involve as a corollary, that the applicant consciously sought to create risk of harm to himself and or others.

76 Therefore the substantive findings upon which the employer acted to dismiss the applicant are unsustainable and the dismissal was consequently unreasonable and unjust.

77 The applicant was dismissed for a single action which must be recognised as a very serious breach of safety procedure. However, in the context of broader considerations for the need to establish and maintain a credible system of occupational health and safety which is based upon a fundamental tenant of shared responsibility, the punishment of dismissal fails both the employer and its employees.

78 In the present circumstances where the employer was increasing an emphasis on the isolation "lock out and tag out" procedure, the dismissal of the applicant was unreasonable and unjust because it was to some extent, sponsored by extraneous issues. The introduction of the extraneous issues was reflected in the inconsistent treatment of the applicant compared to the production workers. The vast difference in the respective punishments, a warning and dismissal, provides compelling basis to establish that the dismissal was harsh.

79 The employer's procedure involving the decision to dismiss being made without first providing the applicant with a proper hearing before the decision maker, would, in all but the most exceptional of circumstances, represent both a denial of natural justice and an apparent absence of moral fortitude. There was no evidence to establish any exceptional circumstances and therefore the applicant's dismissal was procedurally unjust and unreasonable.

80 The absence of any evidence from the person who made the decision to dismiss the applicant leaves the Commission without any basis to enable conclusions about the contemplation of issues relevant to a finding that the dismissal was properly determined. In the absence of any direct evidence, the Commission can not be certain that there was any contemplation of issues such as the applicant's length of service or his employment record generally. This is a peculiar dilemma, the letter of dismissal was signed by Mr Cusack, but how does the Commission know if the letter accurately reflects the thinking of Mr Leon?

81 The dismissal of the applicant was harsh, unreasonable and unjust because it's substantial basis was flawed and it was determined via deficient process. Consequently the Commission is prepared to find in favour of the applicant.

Remedy

82 There was no compelling evidence that reinstatement of the applicant would be impractical. The applicant's bitterness towards the employer presented as the greatest potential impediment to reestablishment of the employment relationship. Upon review the Commission believes that the applicant's indignant disposition should not prevent his reinstatement.

83 The applicant should adopt a more amenable and obliging approach upon return to work. The Commission reiterates that the applicant's clear breach of safety procedure must by acknowledged by the applicant himself and by all other employees. The applicant clearly did the wrong thing when he failed to isolate the electric motor. However, that mistake did not justify dismissal but if it was repeated, an entirely different outcome might emerge.

84 The employer argued that if the Commission was to make Orders for reinstatement then no Orders for remuneration or "back pay" should follow. Ordinarily reinstatement may also include recognition of the applicant's error by reducing the amount Ordered as remuneration, In this case however, the applicant's loss of a $10,000 deposit represents more than sufficient acknowledgement of his error.

85 As the Commission has Determined that the dismissal of the applicant was harsh, unreasonable and unjust, the following Orders are now made:

ORDERS

ORDER 1
The Commission Orders, pursuant to section 89(1) of the Act, that the employer reinstate the applicant to his former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable, and within 21 days from the date of this Decision.

ORDER 2
The Commission Orders, pursuant to section 89(3) of the Act, that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal and reinstatement. This amount is to be paid to the applicant as soon as practicable, and within 21 days from the date of this Decision.

ORDER 3
The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment.

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LAST UPDATED: 07/07/2006