TASMANIAN INDUSTRIAL COMMISSION

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

Construction, Forestry, Mining and Energy Union, Tasmanian Branch
(T11110 of 2003)

and

Australian Mines and Metals Association (Incorporated)
on behalf of Pasminco Hobart Smelter (Administrator Appointed)
(T11111 of 2003)

Industrial dispute - alleged unfair termination of employment - industrial action - alleged serious breach of safety - employer acted on a premise not reasonably open - material change to factual basis for dismissal - clarity of operating procedures - training - safety not compromised by production targets found - procedural fairness afforded - valid reason for termination not proven - termination unfair - lesser penalty appropriate - re-instatement from prospective date ordered

(1) On 15 October 2003, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) 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 arising out of the alleged unfair termination of Mr John Ayers.

(2) On 15 October 2003, the Australian Mines and Metals Association (Incorporated) on behalf of Pasminco Hobart Smelter 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 the Construction, Forestry, Mining and Energy Union, Tasmanian Branch arising out of industrial action taken by employees in Casting Department.

(3) The matters were listed for a conciliation conference on 15 October 2003. Mr B White and Mr M Reeves appeared for the applicant. Mr W Fitzgerald, of the Australian Mines and Metals Association (Incorporated), with Ms L O'Brien and Mr C Wells, appeared for the respondent. The matter was further listed for inspections and hearing on 10, 11 and 12 November 2003. Upon resumption, Mr B Stirling appeared for the CFMEU.

Background

(4) Mr Ayers was first employed at the Pasminco Smelter on 15 October 1980. It would seem that most, if not all of his subsequent 23 years' service was in the Casting Department. There can be no doubt the Mr Ayers was an experienced operator who, in recent years had also trained new recruits in casting operations.

(5) Mr Ayers was summarily dismissed on 15 October 2003 following an incident that occurred on 7 October 2003. The Company submitted that this incident amounted to a grave breach of safety such as to justify summary dismissal. The letter of termination reads:1

"TERMINATION OF EMPLOYMENT - SERIOUS BREACH OF SAFETY

On 7 October 2003, it was alleged that you engaged in a series of very serious and unsafe acts which could have led to a fatal result.

A full and extensive investigation was undertaken with respect to the above allegations. These investigations were complicated by virtue of the fact that your views as to what actually occurred on 7 October 2003, changed quite dramatically throughout the course of investigations - an issue to which you were unable to explain.

In accordance with the above investigations and evidence gathered within, I have come to the following conclusion.

As a result of not maintaining the launder cloth, the short launder fell into the ladle full of molten metal. On noticing that the short launder had fallen into the ladle full of molten metal, you:

1. Climbed over the safety barrier onto the top of the ladle whilst the agitator was spinning.

2. Lifted the protective safety guard whilst the agitator was spinning.

3. Upon lifting the protective safety guard you then attempted to remove the short launder and launder cloth from the ladle full of molten metal which at the time was still being agitated.

The above three incidents are all very serious safety breaches within themselves, and when viewed in totality of the entire incident are of further fundamental concern.

Consistent with the above, I regretfully advise that your employment with Pasminco Hobart Smelters will be terminated with immediate effect.

Yours faithfully
PASMINCO HOBART SMELTER
(Subject to Deed of Company Arrangement)

Mike Nichols
MANAGER ELECTROLYSIS CASTING"

(6) The incident occurred shortly before the end of shift on 7 October. The sole witness to the incident, Process Co-ordinator, Mr Stuart Moore, submitted a "Near Miss Hazard Report"2 and subsequently completed a "Non Injury Incident Notification Form".3

(7) Mr Ayers was interviewed on 8 October and subsequently suspended on full pay pending further investigation.

(8) Mr Ayers was further interviewed on 10 October. It was at this meeting that Company officials formed the view that Mr Ayers had been inconsistent, untruthful and had changed his story from the initial meeting on 8 October.

(9) The union submits that the termination was unfair in both substantive and procedural terms. Further, that whilst a breach of safety was admitted, the penalty was a disproportionate response to the incident. The union seeks reinstatement, or in the alternative, re-employment from a date to be determined by the Commission.

The Evidence

(10) Prior to the hearing the Commission conducted on-site inspections in the presence of the parties.

(11) Evidence was taken from the following witnesses:

• John Craig Ayers; the applicant.
• Allan John Williams; employed at the smelter for 27 years of which 25 were in Casting Department.
• Andrew Steven Craik; employed in Casting Department for the past 12 years.
• Catherine Leanne O'Brien; Human Resource Manager at Pasminco, currently on secondment from AMMA.
• Stuart James Moore; employed in Casting Deptartment for the past 11.5 years, the last five as a Process Co-ordinator.
• Craig Geoffrey Wells; employed in Casting Deptartment for 13 years in various operating and supervisory roles. Currently Superintendent of Casting Department.
• Michael Darren Nichols; employed at the smelter for 13 years in a range of management roles, currently Manager of Casting and Electrolysis.

Witness Credit

(12) The Company submitted that in giving evidence before the Commission, and in the interview of 10 October, Mr Ayers was vague, inconsistent and indeed untruthful. Further it was submitted that his story changed between the meetings on 8 and 10 October. For these reasons his evidence should be heavily discounted and the evidence of the Company witnesses preferred.

(13) The Commission has had the opportunity to observe the witness first hand. He was clearly uncomfortable and indeed distressed by the robust and extensive cross-examination by Mr Fitzgerald. He freely admits that he is a man of few words, does not express himself well and has difficulty in remembering detail.

(14) For reasons that are outlined later in this decision, I have formed the view that in one important respect, namely that Mr Ayers attempted to remove the launder whilst the agitator was on, the Company proceeded on a premise that was not open to them. When tested against the evidence, this misunderstanding on the Company's part does, in large measure, account for the otherwise apparent inconsistencies in Mr Ayers' evidence before the Commission and in the earlier interviews.

(15) I conclude therefore that whilst Mr Ayers was in error in his recollection of certain events, he was not deliberately untruthful. However, to the extent of any inconsistency between his evidence and that of Mr Moore (who was a straightforward, impressive witness), I prefer the latter.

(16) The Company submitted that the evidence of Messrs Williams and Craik be similarly discounted.

(17) In the case of Mr Williams, it was submitted that he had been previously terminated by the Company and was subsequently re-employed under a false name. Whilst this was conceded, it did happen more than 20 years ago, and the fact that Mr Williams is still employed is a clear indication that the matter was satisfactorily resolved a long time ago.

(18) Mr Craik was portrayed as a "disgruntled" employee in that he had allegedly been in dispute with the Company over a pay issue. Mr Craik said he had given up an acting team leader role of his own volition.

(19) I find no reason to discount the evidence of either witness.

The Incident

(20) In closing submissions Mr Fitzgerald said the "Company has relied on the totality of all the incidents complicated by the fact that Mr Ayers was untruthful".

(21) Mr Ayers conceded points 1 and 2 in the letter of termination. However, point 3, relating to his alleged attempt to remove the short launder and cloth from on top of the mixing ladle whilst the molten metal was being agitated, was denied. Hence the primary focus of this decision will be on that aspect.

(22) Mr Ayers explained the incident as follows:4

"Yes?---Which was the last one for the day. Went up the stairs to lift the load to put the zinc into the holder. While I was up there the launder fell back into the zinc so I came back down the stairs, hopped up on top of the mixing bowl, lifted up the cover, looked at the - the launder, by that time, had almost submerged and I thought well, I can't get the launder out now so when I got back down again the agitator stopped and then by this time Stuart Moore came around and he said, "Having a bit of trouble?" I said, "Yes, the launder has fell into the zinc." So I hopped down and Stuart and I together lifted out the launder and the launder cloth, replaced the cover, started the agitator up and then I proceeded to put the mix in, lowered the launder, gathered my paper work up, went to the office, passed a message on to the oncoming team leader what had happened and went and had a shower.

Mr Ayers, while you were on top of the mixer was it your intention at that time to attempt to remove the launder while you were on top of the mixer?---No.

Why had you got on top of the mixer then?---Well, that's the only way you can lift the cover up. It's too heavy.

And why was it necessary to lift the cover up?---Because that's the only way you can retrieve the short launder."

(23) Asked why he went to the top of the ladle, Mr Ayers said:5

"What were you doing in the first place on top of the ladle if you weren't intending to remove the launder and the launder cloth?---Well, you can't lift the cover off the ground. The cover is too heavy.

But you were attempting - what were your next actions going to be by going to the top? What is the reason why you went to the top of the ladle?---Well, the cloth had fell in. The only way you can get it out is to lift the cover because there is no room to bring it out the other way. The intention was to lift the cover, jump back down again and then turn the agitator off and then retrieve the launder but Stuart Moore had intervened in the meantime."

(24) And later:6

"Were there any other alternative ways of retrieving the launder cloth?---Not with the cover down, no."

(25) The sole witness to the incident was Mr Stuart Moore. His account was as follows:7

"Well, in your own words if you can just give a brief account of what you saw and what you did in relation to the incident involving John Ayers?---Right. Well, it was getting towards the end of the shift so I was walking doing an end of shift check. I just checked on number 3 holding furnace and was walking across to number 3 melting furnace when I glanced across and saw John standing up on number 3 mixing ladle. He was in the process of opening the splash guard and the agitator was still going so I quickly rushed across and turned the agitator off and spoke to John and said, you know, what had happened. I could see that the short extension launder was partially in the metal - tipped in - and John was saying that the cloth on the extension launder had - it had a build up of zinc and it had topped into the mix and he was just trying to retrieve it so I said to John, come on pop down, we will get it from down here but it was a very noisy environment and I am not 100 per cent certain that he heard me that time and John reached down and grabbed the steel section of the short launder and was able to pull that free quite easily and he handed that to me and I threw that to the floor and then he bent down again to try and grab the cloth but that was caught up in the build up of zinc on the side of the mixing ladle so I said to John again, "Come on, hop down and we will get it from down here with a crow bar," so we went and got a bar, John hopped down, we barred the build-up free from the ladle and we were able to easily remove it from where we were. Then John went back around to restart the agitator and I noticed that the splash guard was still up so I said to John, "Just hang on a sec," and I tried to close the splash guard from floor level which I couldn't do. It had a build up of zinc on it and it was too heavy so I just climbed up on to the support arm of the mixing ladle and from there was easily able to close the splash guard and from there on I said to John, "Okay, we are right to go again." John restarted the agitator and went and tipped his mix in and when he came back down from the controls I have classed this as a near miss, I am going to do a report on my near miss hazard report that I carry in my pocket and I said it's too late in the shift today to fill out the full report but I will do that first thing in the morning, which I did.

...

Right. And where was Mr Ayers at that point?---He was standing on top of the mixing ladle in the process of opening the splash guard.

Right. And what about the launder. Where was that?---Well, that was between his legs. That was my biggest concern that the steel work and the cloth were still in the metal with the agitator going and if, by some chance, that had caught on the agitator, which all the metal is being drawn to the agitator, it could have caught his leg or tripped him up or quite easily caused John to have fall in so that was my main concern to get that agitator turned off as quick as possible.

So he was actually holding the launder with the launder cloth still attached to it between his legs on top of the ladle?---No, he was standing on top of the ladle with it between his legs at that stage."

(26) This was further clarified under cross-examination:8

"When I first saw John he was actually on top of the ladle, opening the splash guard with the launder and the launder cloth between his legs.

When you say they were between his legs - - -?---One foot either side.

...

Was he holding them in his hands?---No, it was just being - they were stuck in that position basically and he got up there and he had one foot either side to give him leverage so he could lift the splash - - - "

(27) And later:9

"So did you see John Ayers attempt to remove the launder and the cloth?---Not while the agitator was going, no.

Not while the agitator was going. So before you intervened you didn't see him attempt to remove the launder and the cloth?---No."

(28) Mr Moore agreed that it may have been necessary to lift the splash guard to retrieve the launder.10

(29) For reasons I have previously indicated, to the extent of any conflict between the evidence of Mr Ayers and Mr Moore, I prefer the evidence of Mr Moore.

(30) Importantly, I find as follows in relation to point 3 of the termination grounds:

• Mr Moore witnessed Mr Ayers removing the splash cover whilst the agitator was going, not the launder and launder cloth.
• Mr Ayers was not holding the launder in his hands whilst the agitator was going. He was standing astride the launder in order to gain leverage to lift the splash cover.
• On balance I consider it highly unlikely that Mr Ayers at any stage attempted to remove the launder whilst the agitator was going.
• Mr Ayers did remove the launder and pass it to Mr Moore, after the agitator had been stopped. On the evidence it is unlikely that Mr Ayers heard the first direction from Mr Moore to get down off the ladle.
• Mr Ayers did attempt to remove the launder cloth whilst the agitator was off. However he desisted when he heard the instruction from Mr Moore, climbed down and the cloth was jointly retrieved from the floor.

Did the Company Proceed on an Incorrect Premise?

(31) Ms O'Brien said that prior to the meeting on 10 October she had prepared written questions which she systematically worked through during the meeting. One of those questions was expressed as follows:11

"Once the protective guard had been removed you then attempted to remove the short launder and launder cloth from the ladle full of zinc which at the time was still being agitated."

(32) This was denied by Mr Ayers.

(33) Mr Wells agreed that this question was asked12, and further, that this was his understanding of what occurred.13

(34) Ms O'Brien said in relation to this issue:14

"What was the aspect of the agitator being in operation? Was that something which he considered?---The fact that the agitator was actually going worsens the actual incident in that - I mean stepping over the safety barrier and stepping up on the ladle whilst it's full is very serious in itself but to have it whilst it's actually agitating further exacerbates the issue. The issue with respect to the launder cloth and the launder being in there is that it can get caught up in the actual agitator which is - I describe it because I'm not that technically minded, like a big mix-master and that the launder cloth - it's spinning around and he was up there as the agitator was actually spinning around so there was this big ladle full of six tonne of hot burning metal being spun around and Mr Ayers was standing on the lip of the actual ladle and trying to pull out the launder cloth. The thing is in terms of the agitator spinning around and around like that, the launder cloth could have easily gone into that and he could have been sucked into it and pulled straight into this big pot so it is significant that the agitator was actually going and the fact that the protective guard was pushed back whilst the agitator was going as well is of concern because of the splashing and I understand that the reason why the protective guard is there is the very reason so that people don't get splashed up with the burning zinc. So yes, the fact that the agitator was on is quite significant."

(35) Mr Ayers' evidence in relation to this line of questioning was:15

"Why did you feel that you were being badgered?---Well, I thought I was being asked the same question in different ways.

Did you feel you were being asked questions that were designed to lead you to a particular answer?---Yes.

Why did you feel that?---I was led to believe that I reached over and pull the launder out while the agitator was going.

And did you believe that you had done so?---No, I did not."

(36) And later:16

"Yes. What do you think the real reason is that you were dismissed on 15 October, Mr Ayers?---Well, I think the real reason that I was - everybody was under the impression that I reached over and pulled the launder out.

MR FITZGERALD: Objection, Commissioner. This is just absolute speculation and I don't think that it is open for Mr Ayers to speculate one way or the other what the real reason is.

THE COMMISSIONER: He is stating his own views but the question is asking his view of why he was dismissed. I think it is a legitimate question. I will allow it.

MR STIRLING: Okay?---I was under the impression I had been accused of reaching over to grab the launder while the agitator was going.

Yes?---Which I didn't. I was actually on the floor and I had helped pull the launder out while the agitator was stopped."

(37) During cross-examination a series of questions were put to Mr Ayers concerning the evidence to follow from Mr Moore. They included the following:

"So you would say the evidence which Mr Moore will give that he first sighted you on the top of the launder holding on - on top of the ladle holding on to the launder is untrue?---He actually helped me pull it out."17

"I put it to you again, just to remind you that the evidence of Mr Moore when it is presented will be that he first sighted you holding on to the launder on top of the ladle?---No."18

"Despite the evidence which the company is going to present that they saw you on top of the ladle attempting to recover the launder?---Yes?"19

(38) The following questions were put to Mr Craik during cross-examination:

"So you thought it was safe to attempt to recover the launder and the launder cloth whilst the agitator was going and the splash guard was open? You didn't see any risks there at all?---That wasn't on number 3. I am saying on another - - - "20

"So would you do that? Would you get up on ladle 3 and attempt to pull the launder and launder sheet out whilst the agitator is going?---Probably I would not get up on the top of the mixer while the agitator is going and try and pull it out - - - "21

"You have told the superintendent that you have got on top of mixer 3 with the splash guard open and the agitator on, recovering the launder or launder cloth. Is that what you have told him?---No, I didn't say that to him at all."22

(39) And in re-examination of Mr Moore:

"Just to confirm when you first sighted Mr Ayers the extension was - actually the launder was actually pulled out of the ladle, was it, just to clarify?---No, at that stage it was still - it was partially - there was a small section of it still sticking out between his legs but the rest was actually in the metal."23

"Right. So it was clear to you that whilst he was on top of the ladle he had already commenced to pull out the launder at that point?---No, at that point he was opening the splash cover."24

"So what led you to the impression that he had actually had started to commence pulling out the launder?---He had not at that stage. He did that once I had turned the agitator off. He bent down and pulled the long extension out."25

"So he wasn't aware that the agitator had been turned off, but he still commenced to pull out the launder whilst on top?---He would have known the agitator had been turned off because that's a very noisy piece of machinery.26"

(40) It is very clear from the above that, throughout the investigation, Ms O'Brien and Mr Wells assumed that Mr Ayers had either removed or attempted to remove the launder whilst the agitator was going.

(41) Point 3 of the letter of termination27 specifically refers to the attempted removal of the launder from the ladle full of molten metal, "which at the time was still being agitated". Mr Nichols signed this letter.

(42) From the line of questioning from Mr Fitzgerald, it is clear that he had been instructed in accordance with the above.

(43) It would appear that the correct position only emerged during the evidence of Mr Moore.

(44) I therefore conclude that the Company, throughout the investigation and indeed subsequently, acted on a premise that was not reasonably open to it.

Did Mr Ayers Change His Story?

(45) Both Ms O'Brien and Mr Wells said that Mr Ayers changed his story between the initial meeting on 8 October and the second meeting on 10 October. Ms O'Brien said:28

"Along the way it became blatantly obvious to me that the responses that he was actually giving were quite different to the initial responses that he provided in the initial investigation and so not only were there differences with respect to the response between the initial investigation and the meeting that we were having at that time but there were also a lot of inconsistencies within the current meeting in terms of what Mr Ayers actually did do."

(46) In this context there appears to be three main issues:

1. Mr Ayers said at the initial meeting that he removed the launder whilst standing on the side of the ladle, and that this was subsequently denied at the second meeting.

2. At the 8 October meeting Mr Ayers acknowledged that the launder cloth had had a hole in it "for a couple of mixes". At the subsequent meeting he denied stating this.

3. Notwithstanding his denial as to the attempted removal of the launder cloth, he demonstrated certain physical movements consistent with such an action.

(47) On the evidence I consider it more likely than not that Mr Ayers did at the initial meeting state that the hole in the launder had been there "for a couple of mixes" (see point 2 above). I now turn to point 1 above.

(48) Mr Wells said in his evidence:29

"As he commenced to raise that he noticed that the short launder and the launder cloth had fallen partially into the ladle full of agitating molten metal. He then stated that he lowered the ladle back down to the home position, if you like, or the furthest point down.

Yes?---Walked down the steps, climbed over the safety barrier on to the top of the ladle, lifted the splash cover and then attempted to remove the launder cloth and launder.

Can I just stop you there. You are absolutely positive about that aspect?---Yes."

(49) Later in response to questions from the Commission, Mr Wells said:30

"Now, is your evidence that Mr Ayers said that he (a) lifted the splash cover and (b) attempted to retrieve the launder and cloth or that he lifted the splash cover perhaps for the purpose of retrieving the launder and cloth?---No, he lifted the splash cover to retrieve the launder and cloth.

You didn't actually say he retrieved or attempted to retrieve?---Attempted to retrieve it, yes.

He did or he did not say that?---No, in his statement on the 8th he said he lifted it, the splash cover, to retrieve the launder and the cloth, they were his words.

Yes, okay?---To me that means that he lifted the splash cover to take the launder cloth and launder section out of the vortexing ladle.

Yes, but does it necessarily mean that he then went ahead and did that?---No."

(50) I am satisfied that Mr Ayers did not categorically state at the 8 October meeting that he attempted to remove the launder from on top of the ladle.

(51) It was open to Mr Wells to draw the inference he did, but it is no more than an inference.

(52) Mr Ayers' explanation was that it was necessary to get up on the ladle to lift the splash guard. He did this to facilitate the removal of the launder, which he intended to do from the ground.

(53) On the words that were actually used at the 8 October meeting, both the explanation of Mr Ayers, and the inference drawn by Mr Wells, is equally open.

(54) On this point I do not accept that Mr Ayers changed his story from what was portrayed at the 8 October meeting.

(55) In relation to point 3 above, Ms O'Brien said that Mr Ayers demonstrated certain physical movements, which witness Moore might have observed, and which were consistent with an attempted removal of the launder.31

(56) I am quite satisfied that Mr Ayers' physical demonstration was the act of lifting the splash cover, not removing the launder. This is precisely the evidence of Mr Ayers,32 which in turn is consistent with the evidence of Mr Moore.

(57) I am unable to conclude that the physical demonstration by Mr Ayers was inconsistent with his earlier denial of the attempted removal of the launder.

(58) CFMEU Organiser, Mr Marshall Reeves, was present as Mr Ayers' representative at the 10 October meeting.

(59) Ms O'Brien said in her evidence:33

"So I said to him why has your story changed and he couldn't really answer that question. He was pretty uncomfortable and so I think I asked him again, 'Why has your story changed?' And that's when Mr Reeves said, 'Well, why wouldn't his story change if he thought he was going to be sacked?'"

(60) I accept that on the basis of corroborative evidence Mr Reeves did in fact make a statement to this effect.

(61) That such a comment was foolish is an understatement.

(62) As to why Mr Reeves made such a statement is a matter of conjecture.

(63) Mr Reeves was not called to give evidence despite being present throughout the proceedings. His name was on the initial list of witnesses submitted by the Company, but was subsequently withdrawn.

(64) I am satisfied as to what was said at the two meetings and have made findings above as to the extent of any inconsistency.

(65) There is no evidence to support a notion that Messrs Reeves and Ayres conspired to change the story to Mr Ayers' advantage.

Has Similar Work Been Performed in the Past?

(66) Mr Ayers described a practice of "barring off". This involved standing on top of the mixer and using a bar to remove lumps of metal stuck to the side of the ladle. He said this was a common practice34 and that the agitator is operational when this task is being performed.35

(67) Mr Ayers had not encountered a launder falling in before but had witnessed others retrieving the cloth in a similar manner. He was not however specific on this latter point.

(68) Mr Williams said that it was usually necessary to lift the splash guard to remove a launder and it was necessary to get up on the ladle to perform this task. If the launder could be removed from the ground, that was preferable.

(69) Mr Williams had personally been up on the mixer "many, many times" for the purpose of barring off, to open the splash guard and remove aluminium.36

(70) He said it was a common practice among operators, and he assumed management was aware of it. He was not aware of anyone ever being counselled for being up on the mixer.37

(71) Mr Craik said he had performed the barring off task from the top of the ladle. He also said that it was necessary to be up on the ladle to lift the splash guard. He had on occasions removed a launder from on top of the ladle whilst the agitator was going, if he considered it safe to do so. He described this as a minor risk.38

(72) Mr Moore said that he had witnessed the barring off activity, but the agitator is always stopped.39

(73) Mr Wells was not familiar with the barring off function.

(74) I conclude that, on occasions, employees stand on top of the ladle for the purpose of barring off. The evidence is in conflict as to whether the agitator is going whilst this activity is performed.

(75) I conclude that the short launder falls into the ladle on occasions, but that this is not a regular occurrence. It is clearly preferable to remove the launder from the ground, but it would seem that this has not always occurred.

(76) I am unable to make a finding as to the extent of management knowledge of the above practices.

Was Adequate Training Provided?

Is The Correct Procedure Well Understood?

(77) There can be no doubt that Mr Ayers is an experienced operator. The fact that in recent years he has performed a training role for new recruits suggests that he was regarded by management as being competent.

(78) His evidence was that he had the knowledge to operate the No 3 mixer safely and competently.40

(79) Mr Ayers said that he had been adequately trained, but could do with more safety training.41

(80) The was some debate as to the standing of a 1994 document titled "Training Variation Form" applicable to Mr Ayers. The union evidence suggested that this was no more than a "tick the box" exercise based on a formal recognition of skills acquired through experience. Mr Wells said that Standard Operating Procedures (SOPs) were in place at the time and the skill assessment would have been rigorously assessed against these standards.

(81) From the Commission's point of view, little turns on this issue. It was common ground that the SOP for Basic Alloying Procedures42, is silent on the procedure for removing a short launder, which had fallen into the ladle.

(82) Mr Ayers said that he had never been specifically instructed not to mount the side of the ladle for any purpose, nor had he ever received instruction as to the correct way of retrieving a fallen launder.43 He also believed that his understanding was similar to that of other operators:44

"Have you ever been instructed, in a similar way, about how to deal with launders that have fallen into the mixer?---No.

Has there been an ad hoc or fly-by-night approach to the way casting operators in your position deal with that type of a problem?---It's production first.

What do you mean by that?---Well, you do your job to the best of your ability.

And your confident in making a statement on oath that you have not been given any specific instruction not to undertake that activity?---Yes.

And further that that is how that very problem may have been addressed if it occurred to anybody else?---Yes.

And to your knowledge other operators have done that previously?---Yes."

(83) Mr Ayers said there was no alternative method of retrieving the launder with the splash guard down.45

(84) Mr Williams stated that he had never been told not to get up on the mixer.46

(85) Mr Williams said that it was not feasible, and indeed dangerous to empty the ladle with the launder in the molten metal. It must be removed.47

(86) Mr Nichols said there were a number of ways to retrieve a fallen launder.48

"Okay. What would you have seen as the most safe way of dealing with this issue of the launder falling into the ladle?---There are a number of alternatives. Firstly, turning off the agitator and seeking assistance would be one of them, but also the ladle could have been empty and assistance could have been sought with the removal of the launder and the launder cloth. At no point was there any necessity to get up on the edge of the ladle."

(87) There was some debate as to the purpose of the safety rail. Whilst it was generally agreed that its primary purpose was to prevent persons from falling into the well, it was also acknowledged that it served a secondary purpose of preventing/discouraging individuals from climbing onto the ladle.

(88) Mr Ayers said that at the time he did not consider what he did to be a breach of safety or inherently dangerous. With the benefit of hindsight he now realised it was a dangerous act, particularly to lift the splash cover with the agitator going:49

"Do you now realise that because there has been all this evidence that it was dangerous, and we went there yesterday and saw that it was dangerous, that it was wrong for you to do, that it was, in fact, a dangerous act?---Yes.

Did you understand at the time when you did that, that to do it would have been a breach of safety?---No, I didn't.

Why didn't you think that it was a breach of safety at that time?---Well, I'd seen it done before.

All right. Well, on the basis of the safety training and the operational training that you have received in relation to doing that job, did you understand at any time through that training - were you told at any time through that training that it would have been a breach of safety, or an inherently dangerous act for you to do what you did?---No."

(89) I conclude as follows:

• Mr Ayers was a competent operator who had been adequately trained.
• Mr Ayers had not been specifically instructed in the correct methodology of removing a fallen launder. It would appear that a similar position applies to other staff.
• The SOP makes no mention of the correct method of removing a launder. This is not necessarily surprising in that, as I understand it, SOPs deal with the norm rather than the exception.
• There does not appear to be blanket prohibition against employees climbing up onto the ladle.
• There is some conflict in the evidence as to the correct method of removing the launder.
• The actions of Mr Ayers constituted a serious breach of safety, albeit a breach of commonsense rather than a specific Company policy or procedure.

Production v Safety

(90) A recurring theme throughout the evidence put forward on behalf of Mr Ayers was that the emphasis on production sometimes compromised safety.

(91) Mr Williams said there was a culture of production before safety in the plant:50

"Do you think there is a culture of production before safety in the plant?---I certainly do.

Why do you think that?---I just work there. It's just the impression that I have. Everything that - we haven't got time to stop, or scratch ourselves. Keep everything going at all costs.

As part of that culture of safety before - of production before safety do you think that sometimes workers, because they are mindful of that, find themselves doing things that they imagine might be dangerous even though they might not be specifically said to be breaches of safety, according to policy, or protocol?---I'm sure they do. I'm sure they do.

Is one of those sorts of things the 500 degree Celsius minimum for mixers?---Yes.

Can you say a bit more about that?---Oh, well, both for safety and quality, the SOP reads that the metal should be 500 degrees but we don't adhere to that sort of thing.

Why don't - - -?---As a matter of fact you'd be chatted if you do.

You would be chatted if you did adhere to it?---Yes.

Can you say a bit more about that?---Oh, well, if you stop mixing it at 500 degrees like the SOP says they - they'd be on to you straight up, you now, 'Start her up'."

(92) Mr Williams said the pressure for production came from team leaders although he acknowledged that this did not amount to disciplinary action.

(93) Mr Craik in evidence said:51

"What is your view of production against safety? What is the company's message there?---Well, over the last two years it has been production, production."

(94) And later:52

"If I could just finish my question - if the general manager clearly states that that is the emphasis?---Yes, that might be his emphasis. They talk the talk up in high management, that's true, but by the time it gets down to the floor it's a bit slurred, the talk.

What gives you the impression that - - -?---Because production comes first?"

(95) Mr Craik acknowledged that neither he nor his work colleagues had been counselled or disciplined as a consequence of reduced production.

(96) Mr Nichols said that safety was an absolute priority and outlined how this message was communicated throughout the plant. He emphasised that this approach was driven from the top through the personal involvement of the General Manager.

(97) Mr Moore said there was no pressure on anyone to meet production targets, "If you can't meet them you can't meet them".

(98) And later:53

"No. I mean I know that my job is to get out as much saleable metal as we can to do, to be done safely. I am under no pressure, if we don't make a target I'm certainly not going to get my bum kicked."

(99) Mr Ayers agreed that he had told Mr Wells at the 8 October meeting that he was not under (production) pressure at the time of the incident.

(100) During the inspections I gained the impression that the safety message throughout the plant was all pervasive.

(101) From the evidence I am satisfied that the Company is taking all reasonable steps to constantly reinforce the safety message.

(102) I do not accept that this message is not translating to the shop floor. Whilst production will of course always be in focus, there is no evidence at all as to why an operator would feel pressured to compromise safety in the interests of production. In fact the converse is true.

(103) I conclude that, at the time of the incident, Mr Ayers was not under any pressure which might explain his admitted serious safety breach.

Procedural Fairness

(104) The CFMEU submits that there has been a breach of procedural fairness in that Ms O'Brien allegedly "badgered" him during the 10 October meeting:54

"And what is your recollection of what happened at that meeting?---Well, to me I thought I was just badgered with questions, one after the other. You know, just lost it totally.

And why did you feel that way?---I am just not a person used to being fired that many questions at.

And did you feel as though you were asked questions that you were able to give answers to?---Some of them, yes.

Why did you feel that you were being badgered?---Well, I thought I was being asked the same question in different ways."

(105) Ms O'Brien prepared a series of questions in advance of the meeting. According to her notes, Ms O'Brien commenced the meeting with the following statement:55

"The reason that we are here today in due to an incident that occurred on 7 October 2003 on the first day of your (DDNN) panel and:-

1. To discuss the incident with you and your thoughts about what happened and provide you with an opportunity to raise any concerns or questions you may have.

2. To then take this information into consideration before a final decision as to what course of action should be taken by the company.

3. There are a range of different actions which can be taken and one of these may include the termination of employment.

4. Along the way I will be taking notes as a record of our discussions. You are also welcome to take your own notes.

5. I would like you to take your time to answer any questions and do not feel rushed, but rather give considered thought to your responses."

(106) Mr Reeves was present throughout the meeting as Mr Ayers' representative.

(107) I have no doubt that Mr Ayers felt uncomfortable, indeed distressed by the process. This would have been exacerbated by the line of questioning, which I have found was not reasonably open to the employer.

(108) Nonetheless I am unable to conclude that Ms O'Brien's interview style constituted a denial of procedural fairness.

Workplace Standards Tasmania

(109) Mr Wells in his evidence said that WST inspector Indulis Jekomovics visited the site and discussed the incident with the Company Safety Officer. According to Mr Wells, Mr Jekomovics commented that he "was horrified at the events".

(110) Mr Jekomovics did not give evidence to the Commission. His investigation was preliminary to say the least in that he did not interview Mr Ayers. It is also likely that Mr Jekomovics was working on the assumption that Mr Ayers had attempted to remove the launder whilst the agitator was going, which I have found to be incorrect.

(111) For these reasons the hearsay evidence as it relates to Mr Jekomovics has no bearing on my final consideration.

Employment Record

(112) The Company tendered evidence of a final warning given to Mr Ayers on 20 January 1998.

(113) There is disputed evidence as to whether or not this warning was subsequently revoked.

(114) In my view little turns on this question. Whilst the warning refers to a safety breach incident, there can be no doubt that the primary focus of the warning related to attendance issues.

(115) Irrespective of whether or not the warning was revoked, it would in any event be "out of time", as the then Company policy was that final warnings remained on foot for 12 months.

(116) The relevant picture that presents to the Commission is that of an individual with one formal counselling or warning relating to a safety breach in 23 years' service.

Authorities

(117) A large number of authorities were presented by the Company and, to a lesser extent, the union.

(118) I have reviewed them all, but in the context of the instant matter, I have found them to be of only limited assistance.

(119) Suffice to say that I accept that blatant safety breaches at the most serious end of the spectrum may constitute grounds for serious misconduct.

(120) The Company Progressive Discipline Policy states in relation to Major Offences or Serious Misconduct:56

"Where a major offence, breach of discipline, extreme incident of poor performance or serious misconduct occurs it may be appropriate to proceed directly to disciplinary action, the issue of a final warning or the instant dismissal of the employee. The individual circumstances of each case should dictate the steps to be taken."

(121) I accept that under this policy it is open to the Company to proceed to summary termination in respect of a safety breach, without the intermediate steps outlined in the policy. However given that the "overarching priority ... is to provide an opportunity for improvement to meet the required performance or behavioural standards, and where practicable provide assistance for this improvement", I would expect that summary dismissal would, absent other factors, be limited to extreme cases.

Conclusion

(122) The reasons for the termination are succinctly captured in the letter of termination.57 That is, the cumulative effect of three separate incidents, coupled with the Company view that Mr Ayers substantially changed his position between the meetings on 8 and 10 October.

(123) Had the evidence in the hearing supported the conclusion of the Company that followed the investigation, I would not interfere with the decision to summarily terminate.

(124) But such is not the case.

(125) I have found that the Company conclusion is seriously flawed in one particular area, namely, the allegation that Mr Ayers attempted to remove the launder whilst the molten metal "was still being agitated".

(126) I have also found that the allegations as to Mr Ayers changing his story to be at the low end of the spectrum, perhaps even inadvertent.

(127) I remain troubled that Mr Ayers denied handing the launder to Mr Moore from on top of the ladle. I do however accept that Mr Ayers did not hear Mr Moore's initial instruction to get down. I also accept that it is possible, given the focus on the agitator question, that Mr Ayers may have got confused during the interviews, and focussed on the end point, which was Mr Moore and himself removing the launder cloth from the ground.

(128) It is open to speculation as to what Mr Ayers might have done had not Mr Moore intervened and shut down the agitator. However it would be unfair to assume the worst when the evidence of Mr Ayers was that he intended to remove the launder from floor level.

(129) It is accepted by all that Mr Ayers' actions amounted to a serious safety breach. The question is, has the degree of seriousness been diminished in any significant way by the revelations that only became apparent during the hearing.

(130) Mr Moore throws some light on this question:58

"Now, if the agitator was off, and that had eliminated one of those distinct safety breaches, would you have taken the view that the remaining, what you say the remaining two safety breaches, would you have taken the view that they were sufficiently serious to have put in a near miss form and taken the view that it was sufficiently serious for you to take the action that you did?---I may have put in a near miss report but it would have main been to action - to having some mechanical changes made to the launder set ups so that the problems could not occur again and to act as a reminder to John to keep his equipment in a well-maintained manner because basically none of this would have happened if John had maintained his launder cloth through the day."

(131) The Commission is not to know how the Company may have viewed the incident had they been aware of what has now emerged.

(132) I am satisfied on the evidence that the most serious aspect of the three issues cited in the termination letter, was the allegation relating to the attempted removal of the launder with the agitator on. With that removed, the degree of seriousness is presumably significantly reduced.

(133) I have also taken the following into consideration:

• Mr Ayers was not aware at the time that he was committing a serious safety breach. It cannot therefore be described as wilful.
• There is no blanket prohibition on being on top of the ladle. Indeed there was evidence of other employees performing work from this position.
• There had been no specific training as to the correct method of removing a fallen launder. Indeed, there was some conflict as to what the correct method is.
• Mr Ayers' employment history, as it relates to safety issues, is sound.

(134) I have concluded that the Company acted on a premise that was not reasonably open to it. This flaw in the investigation process substantially alters the factual position. So much so that I find that the Company has failed to prove the existence of a valid reason for termination. It follows that I find that the termination was unfair.

Remedy

(135) In closing submissions Mr Fitzgerald submitted that reinstatement or re-employment was impracticable in that the actions of Mr Ayers destroyed the necessary confidence inherent in an employment relationship. However no evidence on this point was adduced and I am not satisfied that such an outcome is impracticable, bearing in mind that that is the primary remedy under the Act.

(136) The actions of Mr Ayers did constitute a serious safety breach, albeit significantly less serious than initially found through the Company investigation.

(137) A penalty is appropriate and I propose to order reinstatement from a prospective date, with no order as to wages for the intervening period. This will amount to a substantial "fine", equivalent to nearly 8 weeks' salary. I would also anticipate that a final warning would be given to Mr Ayers, but that is a matter for the Company.

ORDER

Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Pasminco Hobart Smelter (Administrator Appointed) reinstate Mr John Craig Ayers to the position he held immediately prior to his termination on 15 October 2003, or alternatively to an equivalent position either in Casting Department or elsewhere in the plant. I further order that such reinstatement take effect from the resumption of the first shift which occurs on or after Monday 8 December 2003, and for which Mr Ayers would have been rostered, but for the termination.

Tim Abey
COMMISSIONER

Appearances:
Mr B White (15/10/03), Mr M Reeves and Mr B Stirling (10/11/03, 11/11/03 and 12/11/03) for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Mr W Fitzgerald, for the Australian Mines and Metals Association (Incorporated) on behalf of Pasminco Hobart Smelter (Administrator Appointed), with Ms L O'Brien

Date and Place of Hearing:
2003
October 15
November 10, 11, 12
Hobart

1 Exhibit R6
2 Exhibit R10
3 Supra
4 Transcript PN 166 and following
5 Transcript PN 300 and 301
6 Transcript PN 394
7 Transcript PN 1582 and following
8 Transcript PN 1632 and following
9 Transcript PN 1653/54
10 Transcript PN 1616
11 Exhibit R14, p. 2
12 Transcript PN 2109
13 Transcript PN 2112
14 Transcript PN 70
15 Transcript PN 200 and following
16 Transcript PN 237 and following
17 Transcript PN 506
18 Transcript PN 797
19 Transcript PN 822
20 Transcript PN 1478
21 Transcript PN 1481
22 Transcript PN 1501
23 Transcript PN 1773
24 Transcript PN 1774
25 Transcript PN 1776
26 Transcript PN 1780
27 Exhibit R6
28 Transcript PN 63
29 Transcript PN 1869 and following
30 Transcript PN 2101 and following
31 Transcript PN 64
32 Transcript PN 490 and 824
33 Transcript PN 66
34 Transcript PN 176
35 Transcript PN 1043
36 Transcript PN 1158
37 Transcript PN 1162
38 Transcript PN 1495
39 Transcript PN 1610
40 Transcript PN 509
41 Transcript PN 1022
42 Exhibit A1
43 Transcript PN 234 and 235
44 Transcript PN 255 and following
45 Transcript PN 394
46 Transcript PN 1167
47 Transcript PN 1109 and 1110
48 Transcript PN 2191
49 Transcript PN 1003 and following
50 Transcript PN 1207 and following
51 Transcript PN 1522
52 Transcript PN 1538 and 1539
53 Transcript PN 1752
54 Transcript PN 197 and following
55 Exhibit R14
56 Exhibit R2
57 Exhibit R6
58 Transcript PN 1686