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/96 M Print N0584
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.170EA application to the Commission for conciliation
N Evans and the Australian Workers' Union
and
BHP Steel (JLA) Pty Limited
(U No. 30197 of 1996)
Operator Steel industry
Termination of employment - unfair dismissal - unlawful termination
- operator, steel industry - whether leaving the worksite without
permission and sleeping amount to serious misconduct - respondent
discharged onus under s.170DE(1) to have a valid reason for termination -
misconduct was serious and constituted a valid reason - investigation
conducted by the respondent was a reasonable one - application dismissed.
COMMISSIONER WHELAN MELBOURNE, 2 APRIL 1996
REASONS FOR DECISION
This matter came before the Commission as a consent arbitration in accordance
with the provisions of section 170EC(1). The applicant claimed that his
dismissal by BHP Steel contravened section 170DC, section 170DE(2) and section
170DF(1)(a) of the Act and as such was unlawful. The employer denied that
section 170DC had been contravened and claimed that the dismissal fell
within the requirements of section 170DE(1) in that there was a valid reason
connected with the employee's conduct which justified his termination.
Following the hearing I found that the termination of the applicant did
not contravene sections 170DC, 170DE(2) or 170DF(1)(a) of the Act
and ordered that the application be dismissed. The applicant through his
union has now asked for reasons for that decision.
Background
The applicant was employed as an operator at BHP Steel Westernport Works. He
commenced employment on 12 September 1994 and was terminated on 15
January, 1996. It is not disputed that the termination arose from incidents
which occurred at the work place on Saturday 13 January, 1996. Evidence
concerning those events was contained primarily in the report prepared by two
employees of the Company, Mr R Wilson and Ms A Roberts both of whom were
shift supervisors present on that day.
Mr Wood, who appeared on behalf of Mr Evans was offered the opportunity to
cross-examine Mr Wilson and Ms Roberts on the content of the report but
declined to do so. He raised only two objections to the facts contained in
the report. I will deal with those issues later in the decision.
The company also called to give evidence Mr Gerard Hiejden, the Cold Reduction
Area Manager, the person responsible for the termination of Mr Evans on
Monday 15 January, 1996.
Mr Wood called no witnesses. I must say that this provided some difficulty for
the Commission in testing the evidence presented and the applicant's claim. Mr
Wood advised the Commission that he had explained to the applicant the
disadvantages of not giving evidence, however, the applicant had declined
to appear as a witness because of his anxiety and nervous state.
While I accept the applicant's decision and the reasons advanced for
it, no other witness was called by Mr Wood and the only evidence produced was
two medical certificates.
The events giving rise to the termination
Mr Evans and Mr Willing arrived at work together on 13 January shortly
after the commencement of the morning shift. Mr Willing was in charge of the
crew of which Mr Evans was a member. It is accepted by everyone that Mr
Evans was not in "tip top condition" when he arrived at work. It is not
clear what duties he was originally assigned to by Mr Willing, as neither Mr
Evans nor Mr Willing gave evidence.
The evidence is, however, that at about 8.30 a.m. Mr Willing found Mr Evans
sleeping and sent him to work on the shot blaster. Photographic and other
evidence was given of the work station and the work involved in this position.
It then appears that some time between 8.30 a.m. and 9.00 a.m. Mr Evans left
his work station. Between 9.00 a.m. and 12.00 noon a large number of people
were involved in searching for him across a wide area of the site. In addition
calls were made to the Medical Centre to see if he had gone there.
By 12.30 p.m. security had been informed that he was missing and the search
widened. At around 1.00 p.m. Mr Evans was found back at the shot blaster work
station. He was signalled to come to the supervisor's office where Mr Wilson,
Ms Roberts and Mr Willing were present. When asked where he had been since
approximately 8.30 a.m. he responded: "Asleep in a container behind CA".
Mr Wilson's response was to say: "With that information I have no option
but to instantly dismiss you".
There then followed further discussion between Mr Willing and Mr Wilson
which resulted in Mr Willing contacting a union representative, Mr
Ferguson, and requesting that Mr Evans be suspended until the Monday. Mr
Wilson then phoned Mr Hiejden, the Cold Reduction Area Manager, who agreed
that the correct action was to suspend Mr Evans until the Monday.
Mr Willing then contacted Mr Eagles (AWU organiser) who spoke to Mr Wilson
and indicated that he was coming onto the site. Before the arrival of Mr
Eagles but in the presence of Mr Willing, Mr Wilson told Mr Evans:
"After discussing the issue with Gerard Hiejden and Bill Dennis
(Industrial Relations Superintendent), I have decided to
suspend you until Monday as per Gary Ferguson's request. Don't
be under any misconception that you still have a job. You
should return to the site at 0900 Monday. Collect your stuff
from the crib room and clock off".
There were further discussions between Mr Willing and Mr Wilson and Ms Roberts
which seemed to concern two issues:
(a) What Mr Willing considered to be harsh treatment of Mr
Evans; and
(b) Mr Willing's concern that he had not been able to speak to Mr
Evans before he (Mr Evans) was asked to explain his absence
from his work station.
It was during this conversation that the explanation was offered by Mr
Willing that Mr Evans had left his work station to go outside for some fresh
air, had blacked out and consequently woke up in the container not knowing how
he got there.
Shortly after this Mr Eagles arrived and after discussions between him
and Mr Dennis it was agreed that Mr Evans would be suspended on pay until the
Monday at 9.00 a.m.
The termination
Mr Hiejden was the only witness to give evidence of what occurred on the
Monday. His evidence was that he arrived at work and was presented with the
report prepared by Mr Wilson and Ms Roberts. He also spoke to Mr Wilson and Ms
Roberts concerning the content of the report and telephoned Mr Eagles to
inform him that unless anything was presented at the meeting to change
his mind he believed that the matter was one of dismissal.
At the meeting, Mr Evans, Mr Willing, Mr Ferguson, Mr Boyd, Mr Wilson, Ms
Roberts, Mr Dennis and Mr Heijden were present. Mr Ferguson spoke on behalf
of Mr Evans. At the meeting Mr Ferguson referred to Mr Evans' personal and
medical problems and produced a medical certificate. The certificate which was
presented to the Commission by Mr Wood was dated 14 January 1996 and stated
that:
"Neil Evans attended this clinic with an acute situational
crisis requiring medication (and is) unable to work from 15-1-
96 to 17-1-96."
In Mr Heijden's view the medical certificate did not really change the
situation. He attempted to see if there were any other issues of relevance
and then left the meeting to confer with the human resources manager on
whether the course of dismissal was an appropriate one given the
circumstances. He then returned to the meeting and informed Mr Evans that the
dismissal would proceed.
The onus of proof
In matters such as these the onus of proof is shared between the parties.
The onus is on the employer to establish that there was a valid reason
connected with the employee's capacity or conduct which justified the
termination of the employee. He must also establish that the employee was
given the opportunity to defend himself against the allegations made where
the reasons relate to the employee's conduct or performance.
Where the employee contends that the reason for dismissal is not valid,
having regard to all the circumstances of the case, because it is harsh,
unjust or unreasonable, the onus is on the employee to satisfy the Commission
of this.
The conduct of the employee
In this case it is not disputed that Mr Evans left his work station
without permission. It is also not disputed that he was missing for in
excess of three hours during which a number of employees were involved in
searching for him. It is also not disputed that for at least part of this
time Mr Evans was asleep in a container behind a building some distance
away from his assigned work station. There was some contention as to
whether the container was, or could have been closed, at the time. I
accept however that at least one employee had seen the container during the
search and that he made no attempt to look inside it. I accept that it was
not obvious to the searchers that Mr Evans was inside the container.
Mr Heijden in his evidence stated that his reasons for considering
that Mr Evans actions were such as to justify dismissal were two
fold. Firstly, leaving the worksite without informing anyone in that sort of
industrial environment is not the done thing. Secondly, over the last 18
months the company has been involved in what he described as an
accelerated safety initiative to try and raise the safety performance of the
Steel Group. In those circumstances to condone Mr Evan's behaviour would
in his view "risk that whole building up of a safety culture in an area (like
ours) which involves 214 people in cold reduction at the moment."
Through both documentary and oral evidence the company provided the commission
with an overview of the workplace and the work processes involved at Western
Port. I am satisfied that Mr Evans disappearance would have and did cause
real concern to the shift supervisors and his fellow employees. I
accept that in an industrial environment such as this one, the inability to
account for the whereabouts of an employee has important safety
implications.
Both this Commission and the Industrial Relations Court have been required to
deal with the issue of whether:
(a) Leaving the worksite without permission; and
(b) sleeping at work
amount to serious misconduct.
Each case must be judged on its own facts. It was not contended by
the union that either leaving the worksite without permission or sleeping on
the job was condoned by BHP Steel. It was in fact not suggested that the
actions of Mr Evans were other than serious.
The contentions of the union were twofold. Firstly that the manner in which
the company dealt with the incident amounted to a contravention of section
170DC and secondly that under the circumstances, the penalty of
dismissal was harsh, unjust or unreasonable.
The union also contended that the employer had breached section 170DF (1)(a)
in that the employees absence from his worksite was temporary and was
because of illness. I accept the company's submission that section 170DF
(1)(a) is not applicable because the requirements of Regulation 30D have not
been met. It appears clear to me that Regulation 30D establishes that
section 170DF (1)(a) is not intended to cover the circumstances where
an employee absents him or herself from their workplace without
permission and later offers illness as a reason for such actions. In this
context I note that the medical certificate presented by Mr Evans does not
refer to the date on which the incident occurred as being one on which Mr Evans
was unable to work.
Did the company comply with section 170DC
The AWU contends that Mr Evans was denied procedural fairness in the way
that the investigation into the incident on 13 January 1996 was conducted.
Firstly, in relation to the report submitted by Mr Wilson and Ms Roberts, Mr
