T10544
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and Pasminco Hobart Smelter
Industrial dispute - final warning as a consequence of three breaches of safety protocol - procedural fairness afforded - in absence of any other consideration, decision was open to the employer - policy applied inconsistently - recommendation REASONS FOR DECISION (1) On 20 November 2002, The Australian Workers' Union, Tasmania Branch (AWU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Pasminco Hobart Smelter (Administrator Appointed) arising out of a final warning issued to Jason Bowerman. (2) The matter was listed for a conciliation conference on 20 December 2002. Mr R Flanagan appeared for the AWU on behalf of Mr J Bowerman. Mr W Fitzgerald of the Australian Mines and Metals Association (Incorporated) (AMMA), together with Mrs S Gorringe and Mr C Wells appeared for the employer. (3) Mr M Reeves of the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) sought and was granted leave to intervene on a limited basis. (4) The issue in dispute concerns a final warning issued to Mr Bowerman as a consequence of three breaches of the safety protocol applicable to Casting Department. The breaches, which all occurred on the same shift [17 November 2002], concerned the failure of Mr Bowerman to have his shirt collar done up in a designated area. (5) The initial conciliation conference failed to resolve the dispute and the matter was referred to a hearing on 20 January 2003. (6) Immediately prior to the hearing the Commission conducted on-site inspections in the presence of the parties. (7) Evidence was taken from the following witnesses:
(8) In opening the applicant's case, Mr Flanagan indicated that the union was seeking that the final warning be withdrawn and downgraded to a counselling session. If the Commission was against him on that application, then at the very worst the final warning should be lessened to the status of a written warning. Casting Department Safety Protocol (9) The function of the Casting Department is to transform molten metal into ingots, the end product of the refinery process. Given the proximity of employees to molten metal, it is not surprising that Mr Wells considers safety to be the number one priority.1 (10) There exists a written protocol applicable to all persons entering the Department.2 (11) The casting floor has designated areas marked by painted lines on the floor. Relevantly, the protocol provides that all personnel entering the furnace and casting area "shall wear face shields, have their shirts and overalls fully buttoned up to the neck and the collar of the shirt or overalls worn up for added protection against possible zinc splashes. If working with molten metal, gauntlet gloves shall be worn with the glove cuffs tightened to the arm with the Velcro strip". (12) The requirement to have shirt collars done up was introduced in September 2002. All employees received instruction on the new requirement and Mr Bowerman readily agreed that he clearly understood the revised protocol.3 (13) It was common ground that employees moved between designated and non-designated areas of the floor on a regular basis throughout the day. The Safety Breach Incidents (14) It is unfortunate that the team leader involved, Mr Hinds, was not available to give evidence. However from the evidence of Messrs Bowerman and Wells, the following picture emerges. First Incident (15) At approximately 8.00am Mr Hinds confronted Mr Bowerman who was in a designated area and did not have his collar done up. Whilst Mr Bowerman initially said that the rebuke was limited to a hand gesture on Mr Hinds' part, under cross-examination he said:4
Second Incident (16) At approximately 1.00pm Mr Bowerman was inspecting the well on the melting furnace. He was in a designated area and did not have his collar done up. (17) Mr Hinds again confronted him. The exchange that followed is not entirely clear. (18) Mr Bowerman's recollection is that Mr Hinds said "Next time it will be official".5 (19) Mr Wells, who was presumably relying on documentation and/or a conversation with Mr Hinds, said:6
(20) Mr Bowerman could not recall this version of the conversation preferring instead the expression "it will be official next time".7 He did agree that Mr Wells' version was possible.8 (21) Asked as to his understanding of this expression, Mr Bowerman said:9
(22) Mr Bowerman acknowledged that this second incident was more serious and that he took it as a verbal warning.10 Third Incident (23) Towards the end of the shift Mr Bowerman had moved from the zinc dust humpy, an area where the collar protocol did not apply, to a designated area. Whilst he had put his face shield in the down position, his collar remained unbuttoned. He said:11
(24) On the following day Mr Bowerman was interviewed by Messrs Wells and Hinds and issued with a final warning. The Pasminco Disciplinary System (25) The Disciplinary System is contained in a document titled "Conditions of Employment and General Information".12 The document states that the objective of the system "is to correct poor and careless behaviour of employees in regard to Company rules and regulations and personal performance". (26) The document goes on to provide for a graduated system based on counselling, written warnings and a final warning, the latter of which has a life of two years. (27) The system specifically states "Should a breach of discipline be serious enough a final warning may be given for a first offence". (28) In the instant matter it is accepted by the union that a safety breach, albeit inadvertent, occurred [indeed multiple breaches]. This Mr Flanagan contended would normally lead to a formal counselling session and that this would be the expectation of the workforce. (29) Mr Roberts said that when a team leader speaks to an employee on the floor, it is generally considered to be an informal discussion. When questioned about the final warning given to Mr Bowerman, Mr Roberts said:13
(30) Mr Bowerman's understanding of the disciplinary process is captured in the following exchange:14
(31) Mr Reeves submitted that in the instant matter the company had gone from a diary note to a final warning and disregarded everything in between. (32) The reason/s the Company moved straight to a final warning is explained in the following exchange with Mr Wells:15
(33) Mr Bowerman agreed that he did not put forward any explanation for the safety breaches other than he forgot.16 Lee Kee Group Visitors (34) Approximately one week after the Bowerman incidents, representatives of a major customer, the Lee Kee Group, visited the casting plant. Senior Pasminco executives, including the General Manager and the Manager of Casting, accompanied the visitors. (35) The evidence of Mr Roberts in relation to the visit was:17
(36) Mr Roberts said that the whole membership on the shift was upset by this incident in that safety standards were being compromised. He said that the employees "were just appalled by the obvious double standard of management to the workforce".18 (37) Mr Roberts said that the incident was immediately taken up with the team leader and subsequently raised at a safety meeting. (38) The following appeared in the in-house newsletter, The Slab, issued on 6 December 2002:19
(39) I note in passing that the visitor protocol was clearly in place when the Commission conducted inspections. (40) Mr Cannan gave evidence in relation to the same visit and, in particular, the apparent non-compliance of the General Manager with the requirement to have collars done up. He said:20
(41) And later:21
(42) Questioned as to his understanding of the General Manager's gesture, Mr Cannan said:22
Closing Submissions Mr Flanagan, for the AWU (43) It is acknowledged that Mr Bowerman made an error of judgement, albeit inadvertently. The Company response in moving immediately to a final warning is akin to using a sledgehammer to crack a nut. (44) There is no evidence to support the proposition that the breaches amounted to a conscious and deliberate decision to flout the rules. (45) The workforce expectation would be to move from the informal "on the floor" reprimand to a formal counselling session "down the hall". (46) Mr Bowerman has only three minor disciplinary issues in over eight years' employment history. (47) By forming the absolute view that Mr Bowerman's actions were deliberate, the Company has stepped over the boundary of what is fair (see AWU v Tassall Limited23). (48) The policy has not been applied on a consistent basis. (49) There is a substantial lack of procedural fairness in moving directly to a final warning without instituting a formal counselling process. Mr Reeves for the CFMEU [intervening] (50) To move immediately to a final warning is an entirely disproportionate response, which is industrially unfair. (51) The Company has applied a double standard in that senior management has not properly observed the policy. Mr Fitzgerald for the Company (52) The Commission should not intervene in this matter. There has been no denial of procedural fairness and it is not the role of the Commission to stand in the shoes of the employer [see AWU v Adelaide Mushrooms24]. (53) The Disciplinary Procedure provides for a final warning for a first offence in circumstances whereby the breach is sufficiently serious. Given that there were three identical breaches within one shift, it was open to the Company to form the view that a final warning was warranted. (54) Mr Bowerman was given every opportunity to put his point of view and his response was entirely inadequate. (55) Mr Bowerman's response that it was "too hot" appears to be the motivating factor for his non-compliance with the protocol. Again that is not an acceptable excuse. (56) There is no requirement on the Company to follow the prescriptive approach as proposed by the unions. (57) Mr Bowerman had more than eight years' experience in the Casting Department and clearly understood the requirements of the policy. (58) The Company responded appropriately to the Lee Kee visitor incident by moving immediately to implement a protocol for visitors. (59) The union has failed to satisfy the burden of proof to demonstrate why the final warning should be rescinded. Findings (60) I deal firstly with the question of procedural fairness. (61) Mr Flanagan submits that moving straight to a final warning without implementing a formal counselling process was contrary to the expectations of the workforce and, as such, amounted to a substantial denial of procedural fairness. (62) I do not accept this submission. The Disciplinary Procedure clearly provides for a final warning to be issued for a first offence in circumstances whereby the breach is sufficiently serious. That position was open to the Company, provided of course in so doing the rules of natural justice are observed. (63) Fundamental to such a consideration is whether Mr Bowerman was afforded proper opportunity to put his side of the case. On the available evidence, that opportunity was clearly provided. (64) I find that procedural fairness was afforded to Mr Bowerman. (65) The remaining question is whether the decision taken by the employer was within the range of options reasonably available, notwithstanding that the Commission might have reached a different conclusion, had it dealt with the issue at first instant. (66) A single instance of failing to do up a collar would probably be considered a relatively minor breach of safety policy. Indeed there was evidence to suggest that this was not uncommon. (67) In this case the breach occurred three times on the one shift. (68) I am satisfied that on the second occasion the team leader issued an instruction, however expressed, which Mr Bowerman correctly interpreted as being a warning. (69) I agree with Mr Flanagan, that on the available evidence, it was not open to Mr Wells to reach a definitive conclusion [if indeed he did] that the actions of Mr Bowerman constituted a deliberate, as distinct from inadvertent, breach of safety policy. (70) I have little doubt that Mr Wells reached his conclusion based on the apparent reference by Mr Bowerman to the environment being "too hot". Whilst this falls short of the evidentiary standard required for a definitive, as distinct from balance of probabilities, conclusion, I do not consider this to be fatal to Mr Wells' ultimate decision-making process. (71) This case can be distinguished from the finding of Johnson DP in Tassall. In the latter case the Deputy President found that the Company officer reached a definitive conclusion, without proper evidence, as to the truthfulness of certain employees, which in turn led that officer to fail to properly consider all relevant material such as length of service and work record. (72) Mr Wells' conclusion that the breach was deliberate did not prevent him from properly taking into account all other relevant considerations. Indeed on the evidence it would appear that Mr Wells was particularly influenced by what he perceived as a quite inadequate explanation on Mr Bowerman's part. Mr Wells observed:25
(73) Mr Wells had the advantage of interviewing Mr Bowerman at first hand and in such circumstances, an assessment as to "attitude" is not something that should be lightly interfered with. (74) Taken in isolation, I have reached the conclusion that the decision taken by the Company, whilst at the harsh end of the range of actions available was, nonetheless, reasonably open to it. In the absence of any other consideration I would not interfere with the Company's decision. (75) The unfortunate incident involving the Lee Kee visitors cannot, however, be ignored. (76) I accept that in relation to the visitors, the Company's action, following the shop floor complaints, in quickly moving to implement a visitor protocol was an appropriate response. (77) The behaviour of senior management is another thing entirely. The uncontested evidence is that one week after Mr Bowerman's incident, the General Manager failed to respond appropriately to two approaches by Mr Cannan in quick succession. Mr Wells' understanding of this incident is that the General Manager left the plant with the visitors as soon as the issue was drawn to his attention. This understanding is however not consistent with the evidence. (78) It is self-evident that for a policy to be seen as being applied fairly, then it must be seen as being applied consistently. (79) In the circumstances it is entirely understandable that Mr Bowerman, and indeed the casting workforce might, in light of the Lee Kee incident, view the final warning issued to Mr Bowerman as being unfair. (80) It is for this reason, and for this reason alone, that I intend to recommend that the final warning be withdrawn and replaced with a lesser sanction. I emphasise that, but for the Lee Kee incident, the Company decision would stand. Recommendation (81) I strongly recommend that the final warning issued to Mr Bowerman on 18 November 2002 be withdrawn and replaced, at the Company's discretion, with either formal counselling or a written warning.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 646 |