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T6247

 

TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T6468

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

The Australian Workers' Union, Tasmania Branch
(T6247 of 1996)

and

Pasminco Metals - EZ

 

COMMISSIONER P A IMLACH

6 August 1996

Industrial dispute - termination of employment - unfair unjust and unreasonable - arbitrated - application dismissed

REASONS FOR DECISION

This was an application for a dispute hearing made under Section 29 of the Act by The Australian Workers' Union, Tasmania Branch (the Union).

The Union was in dispute with Pasminco Metals - EZ (the Company) over the termination on 7 June 1996 of the employment of Mr Andrew Roger Fairfield a Grade 5 Shift Operator, who worked in the electrolysis division (cell room) at the Company's Risdon works.

Mr Fairfield commenced employment in the cell room in February 1993.

In December 1995, following a Company review of the employees' 'taxi use' procedures, Mr Fairfield was singled out for a final warning as to his continued employment and placed on a good behaviour requirement for two years. The 'taxi use' review had found that abuses were occurring and Mr Fairfield's type of abuse was deemed by the Company to be worthy of serious disciplinary actions whereas other types of abuse were not so drastically dealt with.

I do not criticise the Company for its actions over the use of taxi's by employees in relation to their work.

It was also established in evidence that since receiving the warning Mr Fairfield:

  • had cooked noodles using the shell of a safety helmet as a cooking utensil;

  • had come late for work without reporting prior to the commencement of his (exchange) shift that he would be late, which was contrary to the Company's policy on such absences; and

  • on 7 June 1996 had been found smoking in the cell room contrary to the Company's policy of 'no smoking' on the works site.

It was this last transgression which brought about Mr Fairfield's employment termination that same day.

Immediately upon the commencement of the hearing, at the Union's request, an inspection took place of the cell room and its surrounds at the works site, Risdon.

During the inspection, below an elevated outside companion-way, hundreds, if not thousands of discarded cigarette butts were seen. It was obvious that the Company's policy of 'no smoking on site' was being 'honoured in the breach'.

Both the Union and the Company brought witnesses in support of their cases. It was clear that the Union's witnesses believed Mr Fairfield had been a scapegoat presumably in the Company's drive to improve efficiency and discipline.

The Union's witnesses said that Mr Fairfield was a good worker, whereas, the Company's witnesses said that his work performance was irregular. I do not accept the Company's evidence as conclusive that Mr Fairfield was not a good worker per se.

The Company reminded the Commission that 'the line had been drawn in the sand' by a letter to all staff and a further letter specifically to the cell room employees, by the General Manager on 14 September 1995 which stated the Company's position as follows:

"14th September 1995

LETTER TO ELECTROLYSIS SHIFT OPERATING PERSONNEL

I am writing to you individually as a consequence of the unacceptable actions taken in the Cell Room over the past few weeks and more recently the disregard for the Industrial Commission's Ruling. PMEZ have a defined Business Goal which is -

"To safely and reliably provide consistent supply of product to meet or exceed our customer requirements, by ensuring a stable process which optimises production, while complying with statutory requirements".

I want to make you fully aware the actions of the Cell Room have contributed to the loss of customers and market share.

Further, the ongoing level of process stoppages in Electrolysis has created a situation which can no longer be tolerated by the business.

Any issue which arises as part of our business operation must be dealt with in a considered, systematic and constructive manner.

You are reminded -

  • that there are procedures in place which allow for the continuation of the operation while issues are being resolved.

  • that you have individual obligations under your Award and Contract of Employment.

  • that your commitment to your employment and the business must be demonstrated by actions consistent with our Business Goal.

  • that your are obliged (as is the Company) to accept and abide by statutory requirements.

As a consequence of the disruption to production, I must inform you that in future, Management will take the appropriate actions where established policies and procedures are not adhered to. This may include -

  • steps within the disciplinary code,

  • determinations via the Tasmanian Industrial Commission, and

  • termination of service

I recognise that you, as an individual, may be as frustrated by the events in your workplace as I am. However, for consistency, I must deliver the same message to all shift operators in Electrolysis, so that everyone clearly understands the situation. Please consider what I have written and your individual position carefully. I am relying on your support to ensure we all create a stable future at PMEZ.

Yours sincerely,
PASMINCO METALS - EZ
(Sgd) J.P. McAlpine
GENERAL MANAGER
"1

I have included the letter to the cell room employees because it is specific and it demonstrates the atmosphere in which Mr Fairfield's actions took place.

The Union submitted that Mr Fairfield had been harshly and unfairly treated by the Company and sought his re-instatement. The Union relied especially on the submission that in consideration of both the abuses of taxis and the obvious covert breach of the 'no smoking on site' policy, Mr Fairfield had been unfairly treated because others had offended in those areas, but, the Company had not punished them the way it had Mr Fairfield.

There were also allegations by the Company that Mr Fairfield was prone to making 'inappropriate outbursts' at meetings. I was not satisfied that those particular allegations were made out and I have disregarded them.

There were many other factors raised by both sides in this matter, but, whilst I have noted them, I do not consider them to be influential one way or the other in my ultimate decision.

DECISION

Mr Fairfield's employment was terminated primarily because he breached the Company's 'no smoking on site' policy; the Company also relied on his work history.

I accept on the evidence that Mr Fairfield had been made well aware of the Company's policies and attitudes, but, his lack of memory about a number of them was unconvincing.

I consider that, in the light of the 'taxi use' warning given to Mr Fairfield, that he should have made every effort to maintain a spotless record: in that context he failed.

In itself, the worst that could be said about the noodles incident was that it was silly and ill-advised. In my view, by reporting it in a humorous way in the cell room journal, "The Electrode", the Company condoned that event.

The events surrounding Mr Fairfield's lateness on 7 June 1996 left something to be desired on his part in view of the Company's (reasonable) policy of requiring notice of absence prior to shift starting time.

Again, Mr Fairfield failed in relation to the Company's 'no smoking on site' policy in that he was well aware of it but, still was found smoking on the workplace floor.

In some ways the Company's role in this matter has not assisted the Commission.

There is no doubt in my mind that the Company's 'no smoking on site' policy, which in itself I do not criticise, has failed dismally in the area of implementation. It will be a challenge certainly for the Company to devise ways of ensuring acceptance and compliance with the policy in the future.

The evidence as to the Company's supervision of the 'no smoking on site' policy was inconclusive. The Commission was told that some other employees had been cautioned about smoking and it was pointed out that the discarded butts, previously referred to, indicated 'behind the door' breaches whereas Mr Fairfield had been smoking in full view inside the cell room.

The Company submitted that the decisions in Loty's case2 and in the AWU v Temco3 in this Commission, constrained the Commission from accepting the Union's submissions in this matter. I accept that these two cases are apposite to this case in particular in the following extracts:

"In these matters it is not the role of the Commission to impose its view over and above that of management unless it can be clearly established by the applicant that the dismissals were harsh, unjust or unreasonable, or there was some denial of natural justice or what is commonly known as a denial of 'procedural fairness' or 'industrial fair play.'"4

"...

(2) In order to justify intervention by the Commission by way of reinstatement it must be shown that in a specific case an employer exercised the right of dismissal unfairly even though in a perfectly legal manner.

(3) As an industrial tribunal's objective in reinstatement cases is always industrial justice, it must also in each case give weight to (a) the importance, but not the inviolability, of the employer's right to manage his business, (b) the nature and quality of the employee's work, (c) the circumstances concerning the employee's dismissal, and (d) the likely practical outcome if an order of reinstatement be made.

..."5

I am satisfied that the Company did not treat Mr Fairfield unjustly in that he was already under a strict warning, he was given due warning and proper procedures were followed.

The Union submitted that the decision in G v. General Motors-Holden's Ltd6 in South Australia confirmed that singling out one transgressor was harsh and unfair. I do not accept that submission, because in this case Mr Fairfield was not in the same position as other employees, the transgression was in the open, but, more importantly, while Mr Fairfield was under serious warning. The Union also relied on a 1937 Privy Council judgement7 on the basis that it was required to decide

"... whether the misconduct of the respondent was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company ..."8

The Union submitted that Mr Fairfield's actions were not such as to interfere with and prejudice the business of the Company. In the light of the clear aims and policies of the Company and the history of this case I do not accept this contention.

On balance, in this matter I am not able to say the dismissal was unfair nor am I able to say that the Company denied Mr Fairfield proper industrial procedure or justice.

For all these reasons, particularly those set out in the precedent cases quoted, I am not prepared to interfere with the Company's decision to terminate Mr Fairfield's employment.

The application is dismissed.

 

P A Imlach
COMMISSIONER

Appearances:
Mr J Long with Mr M Reeves for The Australian Workers' Union, Tasmania Branch
Mr S P Knott with Mr M Emmett for Pasminco Metals - EZ

Date and place of hearing:
1996
June 26
June 27
July 12
Hobart

1 Exhibit K3
2 Exhibit K14
3 T5464 of 1995 (Exhibit K10)
4 Extract from Exhibit K10
5 Extract from Exhibit K14
6 AILR 29 (Exhibit L10)
7 Jupiter General Insurance Co., Ltd. v. Ardeshir Bomanji Shroff. (Exhibit 11)
8 Extract from Exhibit K11