TASMANIAN INDUSTRIAL COMMISSION

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

Construction, Forestry, Mining and Energy Union, Tasmanian Branch
(T12547 of 2006)

and

Zinifex Hobart Smelter

Industrial dispute - termination of employment - safety procedures - unauthorised removal of personal danger tags - mitigating circumstances - decision to terminate open to the employer - application for reinstatement denied

REASONS FOR DECISION

[1] On 3 February 2006, 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 Zinifex Hobart Smelter arising out of the termination of employment of Alex Breda.

[2] This matter was listed for a hearing (conciliation conference) on 17 February 2006 and listed for hearing on 22 February and 23 February 2006. Mr W Bodkin, with Mr M Reeves appeared for the CFMEU. Mr R West, solicitor, Minter Ellison, with Mr M Double and Mr W Price, appeared for Zinifex.

[3] Mr Breda has been employed at the Risdon plant for 13 years. For the first 10 years he was employed in the Electrolysis Division with the last 2½ years in the Leach Purification Division (Leaching). Immediately prior to termination, Mr Breda was employed as an Operator Grade 7.

[4] On 31 January 2006 Mr Breda was involved in an incident involving the unauthorised removal of personal danger tags. Following an investigation Mr Breda was summarily dismissed on 2 February 2006.

[5] The CFMEU acknowledged that the unauthorised removal of personal danger tags did constitute a serious breach of safety procedures. However it was contended that in the case of Mr Breda, there were mitigating circumstances that justified a lesser penalty.

The Personal Danger Tag System

[6] The use of personal danger tags is a component of the Permit to Work - Isolation Procedure.1 This procedure applies to maintenance work whereby the item of plant needs to be isolated. In addition all persons working on the item of plant must sign the Permit to Work2 form, which includes a sheet for Additional sign-ons.

[7] Personal danger tags are attached to isolation points by the tradespersons involved in the maintenance task. The tags are red in colour, double sided and read as follows:3

[8] Whilst much of the evidence went to the Permit to Work system in the broad, the incident involving Mr Breda concerned only the use of personal danger tags.

Evidence

[9] Sworn evidence was taken from the following witnesses:

The Incident

[10] On 31 January Leaching was shut down for maintenance for approximately six hours. Mr Breda said that this meant the operators were subject to a high level of activity. This was exacerbated by the fact that instead of the normal complement of three experienced operators, there were two operators and an inexperienced contractor.

[11] Mr Breda said he was being pressured by contractors anxious to get on with their respective tasks. Mr Breda made it clear that the work could not proceed until the equipment was isolated and the permit issued.

[12] There was no dispute as to the facts. The company acknowledged that Mr Breda had been cooperative, straightforward and honest throughout the investigation process. The following is his account of what happened next:4

"Yes?---Any rate in between Glenn, myself and the electrician we finally nutted out where it was and we isolated it. With that, the electrician placed his red danger tags on the three filters and the instrument there. The Diamond contractor did the same. The Diamond contractor did his job. It lasted approximately half an hour, removed his danger tag, signed off and left the plant which left the three filters still isolated. The electrician done his job, removed his danger tags, signed off and left the plant or that part of the plant. I don't know whether he left the entire smelter, I have no idea.

Right?---In between that and that the top end of the plant, being the residue control room, started up. I had a phone call from top end, the process co-ordinator. He said, "Got .4 of pulp." I said, "Oh, I've still got three filters totally isolated." One, because it is being worked on, 2 and 3 were just sitting there doing absolutely nothing. I rang Wayne Price. I said "Wayne, I need to use number 2 and 3 filters." I said, "What do I do?" Wayne said, "Well, generate another permit for number 1 filter, get the guys to sign off the original permit, get them to sign onto number 1 filter and that way you can operate." I said, "Okay." And in between there and then I had actually started my mills up outside in preparation for a start-up and I was topping up the tanks and I decided to go out and check my mills.

Yes?---The electrician - the original electrician, M. White, brought in S. Hart. I wasn't aware of that. S. Hart signed on the additional sign-on sheet which was four or five pages back into the original permit and I was unaware that Mr Hart had signed on. I took both permits out to the contractors that were doing the job on number 1. I said, "Listen fellas, I need you to sign off this permit and sign onto this permit." "Not a problem." They did that.

Right?---I looked at the front of the permit. M. White had signed off, the two Coombes boys had signed off and I said, "You're pretty busy here." I said, "If you don't mind I will just take your danger tags off on the way to the control room and kick the filters in." He said, "That will not be a problem, mate. That would be good," which I went around, did that, I removed the danger tags. Unfortunately I didn't check the danger tags and I later found out that Mr Hart had his two personal danger tags on number 2 and 3 filters and I wasn't aware of that until they came in at about I think it was probably 10 past 4, came in and he was raving and ranting, "Who took off my personal danger tags?" And then I realised I had made a mistake by removing his personal danger tags."

[13] The conversation was overheard by Mr Allan Wauchope, Manager Leach Purification, who immediately instigated an investigation.

[14] Mr Ford undertook the initial investigation. Mr Breda was interviewed, and then allowed to go home without loss of pay. It was made clear that he would not be required to attend for work until the investigation process was complete.

Level of Training

[15] From the evidence it is clear that Mr Breda had been involved in at least the following training events which covered either directly or indirectly personal danger tags:

[16] Mr Breda was at times somewhat vague as to the content and his comprehension of these training events and communications. At one stage he said he "was not a big notice person ...". He did not however deny that he attended the courses and training events referred to above. Questioned as to his understanding of the danger tag system, Mr Breda said:5

"Perhaps you might tell the Commission what you understand a personal danger tag to mean - signify?---Exactly what that states, a personal danger tag. This is my personal danger tag. My life is on the line.

And how is a personal danger tag in electrolysis used?---Probably be used in the same situation as what it is in leach.

Right?---Placed on by whoever is doing the job.

It is called a personal danger tag, isn't it?---Yes.

And does that mean that it is applied to the equipment by a particular person, the tradesman working on that equipment? It is affixed by that person personally, isn't it?---Yes.

And is it a requirement of the safety procedure in electrolysis that only the person named on the tag remove it?---That is a requirement, yes.

And you were well aware of that while you were in electrolysis, weren't you?---Yes."

Casting Division Incident

[17] Reference was made to an incident in Casting Division in late 2005. That incident is not the subject of review by the Commission. Its relevance goes only to the question of consistency of treatment. The evidence of Mr Double in relation to this incident was as follows:6

"Yes. Can you inform the Commission of what the essential facts were? I am not here, Commissioner, to re-hear that entire case but I will ask Mr Double to outline to the Commission the essential facts involved in that case, as you understand them?---The facts I guess in a sort of simple fashion, it was that we were installing a robot on one of our casting lines which was still being commissioned, and as part of the commissioning they were testing it at various stages to make sure that it operated the way it was intended to operate. The commissioning engineer instructed the operator, who was an award-based employee, to operate the machine and it had a danger tag on it. Now, the operator was unaware that that danger tag actually belonged to an apprentice electrician. He was of the view that it actually belonged to the commissioning engineer that had instructed him to start the machine and he removed that danger tag and operated the machine as part of the commissioning. As part of the investigation in talking to both the commissioning engineer and the employee, it was very clear that the employee felt significantly pressured by the engineer to operate the machine The engineer was unaware that it was, in fact, tagged off with the danger tag so in his mind he was effectively telling the guy to start the machine unaware that there was a danger tag on it. So unfortunately, there was a system failure, if you like, in terms of the fact that there was a misunderstanding. They certainly had given it some very small area. The robot itself certainly, you know, they sort of understood the proximity of what was around them and nobody was in that. The apprentice was actually working in a different part of the plant, but certainly when he returned he also said who's removed my tag?"

[18] Mr Double said termination was contemplated in this case. However because of mitigating circumstances particular to that incident, a final warning was issued.

[19] Shortly thereafter the General Manager issued a worksite notice to all employees, expressed in the following terms:7

"WORK SITE NOTICE TO ALL EMPLOYEES

PERSONAL DANGER TAGS

Following a recent incident in Casting I want to reinforce to everybody the critical importance of not removing anybody else's Danger Tag or operating equipment that has been isolated.

I want to make it quite clear that the Personal Danger Tag is a life line. There should be no circumstances that warrant removing somebody else's Danger Tag.

The removal of somebody else's Danger Tag is not negotiable and will result in instant dismissal.

In circumstances where a person has left a personal danger tag on an isolation and has subsequently left the site, there is a clear procedure to follow if all efforts fail to find that person and get them back to site to remove it. The procedure can be located in the "Permit to Work - Isolation Procedure" Doc. No. 01602, sections 7.5 and 7.6. This is the only exception where another person's danger tag can be removed.

If you have any questions or doubts about the use of Danger Tags you should speak to your Supervisor or Safety Training co-ordinator.

Brett Fletcher
GENERAL MANAGER
2 December 2005"

[20] Mr Breda acknowledged that he had read this notice.

Zero Tolerance Policy

[21] Effective 1 October 2005, and following a level of consultation with the unions, the company introduced the Policy of Zero Tolerance for Unsafe Acts.8

[22] Relevantly the policy reads as follows:

"Policy

Zinifex has a policy of Zero Tolerance for unsafe acts. This means,

1. An employee must take immediate corrective action whenever an unsafe act or policy/procedural breach is identified.

2. An employee will always challenge any breach of procedure.

3. Any slips, lapses or mistakes regarding safety behaviours, policies and procedures will always be discussed immediately with the employee and recorded as a written note on the employees performance management file. Consideration will then be given to any further action necessary under the Zinifex Discipline Policy.

4. If an employee:

(a) endangers the lives of anybody including themselves, or

(b knowingly allows anyone to work in a life-threatening situation, or

(b) fails to follow critical work safe procedures and systems that are there to protect lives,

the result will be dismissal of the employee(s), subject only to mitigating circumstances.

Management at any level failing to report such life threatening incidents will themselves be subject to dismissal."

[23] The release of the policy was accompanied by a presentation by the then General Manager to all employees on site. It would seem that the General Manager highlighted two fatalities, a consequence of a failure to follow safety procedures, which occurred on mainland Zinifex sites.

[24] Following this, all employees, including Mr Breda, participated in a Safety Leadership Course.

The Investigation

[25] Mr Ford initially interviewed all persons involved in the incident. This included Mr Breda, the two electrical contractors and the two welding contractors engaged on the maintenance task. It was the welding contractors who had agreed to Mr Breda's request that he, Mr Breda, remove their personal danger tags.

[26] On 31 January there was a meeting involving Messrs Double, Ford, Breda and Reeves. Both Mr Ford and Mr Reeves took notes of the meeting.9

[27] At the beginning of the meeting Mr Reeves raised the question of whether, in light of the uncompromising notice from the General Manager,10 the outcome had already been determined.

[28] Mr Reeves' notes indicate the following:11

"MR indicated Union has concerns that Brett Fletcher had put a site notice out in December that there is only one exception to removing a Danger tag and that is if the person has left the site and no one can get hold of them. MR's concern is will Alex get a fair hearing or is the punishment already determined? The GM notice has already locked the company into a position of instant dismissal.

MD answers there are always mitigating circumstances and the company would taking them into account.

Starting point to this is always a concern. Removing people's Danger Tags is a very significant concern and the reason the notice had been put out is because there had been an incident in the Casting Division where there were some mitigating circumstances and they were taken into account."

[29] The notes of Mr Ford were consistent with this as they were for the bulk of the meeting.

[30] The one point of divergence relates to what occurred towards the end of the meeting. According to Mr Ford's notes, Mr Double asked whether there were "any mitigating circumstances not already explained". According to Mr Reeves, Mr Double asked "If there was anything he (Mr Breda) wanted to add".

[31] The meeting was adjourned until 2.00pm the same day.

Mitigating Circumstances

[32] In summary, the following mitigating circumstances were urged, firstly on the company and then the Commission, as factors that would justify a lesser penalty.

[33] Mr Breda was under operational pressure, with the division being manned by a less than optimum crew in terms of experience.

[34] No individual was injured or actually endangered.

[35] The incident occurred in the heat of the moment, and was driven by a desire to restore production.

[36] The work permit system was not mistake-proof.

[37] Mr Breda was truthful, cooperative and remorseful.

[38] There was an inequality of penalty compared with the Casting incident and the action (or lack of) taken against the welding contractors.

[39] In addition the CFMEU urged that Mr Breda's personal circumstances, as they related to his caring responsibilities and financial commitments, also be taken into account.

[40] Following the meeting referred to above Messrs Double and Ford met with the General Manager and department manager. According to the evidence the group fully considered the mitigating circumstances which had been raised on Mr Breda's behalf. The one issue which was not discussed by the group but was known to Mr Ford and Mr Fletcher, related to Mr Breda's family circumstances.

[41] Under cross-examination, Mr Ford said:12

"Well, you said yesterday and today that you considered mitigating circumstances. Having taken the mitigating circumstances into account, was it a close decision or did Alex simply have no hope of saving his job? Did it come down to a fine balance?---If you could imagine the situation, it certainly wasn't one of, "Hey, here's this guy we've got to sack." It was certainly one - and, certainly, my feeling was, you know, how can we possibly find something to explain this and to, in my mind, result in non-termination? It certainly wasn't one where the group was trying to find evidence to support terminating Alex. If anything, it was, you know, "How can we explain this? How did it happen?" We're just trying to understand it and, unfortunately in this instance, there was just no mitigating circumstance of significant weight that could change the ultimate decision.

Were the only mitigating circumstances you took into account the ones that Mr Breda, through Mr Reeves, specifically raised at the interview?---No, I'd say there were others.

Yes, well, let me put it this way: is it the situation that unless Mr Breda and/or Mr Reeves had specified a number of mitigating circumstances, is it the situation then that you wouldn't make an effort to try to think of some yourself?---Sorry, I don't quite understand the question.

MR BODKIN: Okay, I will try and be a bit clearer. Did you make an effort to try to think of some mitigating circumstances yourself which hadn't been raised by either Mr Breda or Mr Reeves?---Most certainly."

"Yes, well, could you tell the Commission what other mitigating circumstances you did taken into account that were not specifically raised?---Yes, certainly. Some of the things that I was trying to understand - what I really wanted to understand in my mind was, what was it that drove Alex to remove six personal danger tags; why he did do it, basically. I was trying to understand whether there was, you know, pressure on him from his team leader or some other person to do it; whether he'd been told to do it. I was trying to understand the situation at the time about, you know, what were the contractors doing, what were they like? I interviewed the contractors to try and understand."

[42] The company representatives emphasised that the sole reason for termination was the breach of safety procedures. Mr Breda's work record was examined only from the point of view of finding commendations and/or positives that might assist in a consideration of mitigating circumstances.

[43] Mr Fletcher, who was ultimately responsible for the decision to terminate, said that a number of alternative outcomes were considered. His evidence was:13

"Did you look at any other options besides termination?---Yes, we did. I guess we discussed - you know, as a part of our process, you know, what other possible - what are the possible outcomes. Obviously that ranged from final written warning, which I guess is really the sort of the lowest probably level that you could even have a discussion on, through to termination and you know, how else we may do that; was there, you know, movement or, you know, transfer to another department or, you know - what other solutions are there fundamentally is the question. I guess, we asked ourselves. I mean, what else could we possibly do, and I think to be fair there was not a lot, there was not a lot of - a whole range, there's like, a half a dozen different options that we had in this particular case that would even warrant discussion for this situation that's so serious, but we did try to find that, we did talk through that.

What about Mr Reeves' proposal that a final warning and training be provided? What did you think of that option?---I would think that was something that we discussed as I've said, that would be the very minimum - I guess, the absolute minimum level that you could discuss for such an incident. You know, having discussed that it was simply a matter of going back to, you know, going back to the seriousness of the situation and under the circumstances as presented is that, you know, is that a fitting outcome for this particular instance and I was firmly of the view and still remain firmly of the view that it wasn't and that that wasn't the appropriate outcome in this situation and that termination was really the only solution based on the weight of evidence as presented that we could agree upon."

[44] Mr Fletcher said that it would be quite wrong to conclude that the work site notice14 precluded any consideration of mitigating circumstances. His evidence in relation to the notice was:15

"It's not negotiable?---No, it doesn't mean that. What I - honestly, what I was trying to convey to the work force when I wrote that, and I did ask Mr Double to draft it and then I tried to personalise it, and I realised that it's not a very personable note, but it was not - it was never meant to be. I wrote it because I didn't want people to do it and, you know, I didn't write it with, you know, what's going to happen down the track as far as discipline goes, what I was trying to do was to let people know that we just don't want this to happen. Whatever you do just don't take somebody else's danger tag off and I wrote it in a - I guess, in a specific fashion for it to be visible and noticeable and for people to take notice of it because that's the message I was trying to get through. Don't take somebody else's danger tag off and in order to do that I chose to use - to word it strongly and I think it is worded strongly but it's intentionally meant to be strong - worded strongly to drive a behaviour that says you can't do this on this site. On this site we don't allow other people to take other people's danger tags off and whatever you do and for whatever reason you just can't do it and that's what I was trying to convey."

Authorities

[45] Both the applicant and respondent referred to a number of judgements aimed at providing guidance for the correct approach in matters such as this. These authorities have been reviewed and taken into account. However I have concluded that the actual circumstances of this case is the overriding consideration and I have determined my findings accordingly.

Findings

[46] In this matter there was no contest offered to the proposition that removal of somebody else's personal danger tag amounts to a serious breach of a critical safety procedure. The real consideration was the existence or otherwise of mitigating circumstances and the severity of the penalty.

[47] Absolute rules apply to critical safety procedures for obvious reasons: to prevent injury and save lives. It is not for the Commission to determine safety procedures in any particular workplace. That is a matter for the employer and employees, both of whom have clear responsibilities under relevant OH&S legislation. I have however concluded that in the environment of the Zinifex Hobart Smelter, the procedures in place in relation to the use of personal danger tags is acknowledged by all as a critical safety procedure.

[48] It is also clear from the evidence (Exhibit R1 and the Zero Tolerance Policy in particular) that a breach of this procedure will, in all likelihood, result in termination.

[49] I do not accept the union's contention that the uncompromising nature of the work site notice locked the company in to a pre-determined outcome. I do accept the evidence of Mr Fletcher that the notice was intended to drive a certain behaviour, and that qualification would serve to dilute the message.

[50] When the incident is reviewed the following picture emerges.

[51] The action to remove the tags was initiated by Mr Breda. He was not directed or encouraged to act as he did.

[52] In allowing Mr Breda to proceed, the two welding contractors were also in serious breach of the accepted safety procedure.

[53] Mr Breda did not look at the additional sign-on sheet, read or count the danger tags he removed.

[54] It is difficult to understand what drove Mr Breda to take the action he did. I have no doubt that he felt that he was under production pressure; although I am satisfied that such pressure was self-imposed.

[55] Whilst Mr Breda's action was a conscious one (as distinct from a slip), it was done without malice and certainly no personal benefit or gain flowed to Mr Breda.

[56] I am satisfied that Mr Breda was adequately trained and fully understood the correct procedures in relation to personal safety tags.

[57] I am satisfied on the evidence that the investigation was properly conducted.

[58] I am also satisfied that all mitigating circumstances advanced on Mr Breda's behalf were properly considered by the management group, and that alternative outcomes were also considered.

[59] I do not consider the Casting incident to amount to an inequality of treatment. If mitigating circumstances are to be taken into account, then different outcomes for what on the face of it appears to be the same offence, will be an inevitable outcome.

[60] I do however have a difficulty with the action taken against the welding contractors. In essence they were told not to do it again, which seems a quite light-handed approach compared with the penalty suffered by Mr Breda. Whether this points to a lack of training of or lack of control over contractors is a matter for the company to consider.

[61] The penalty imposed on Mr Breda is at the harsh end of the spectrum of outcomes available to the company. Nonetheless it was a decision open to the company. Taking into account the level of training and understanding of the correct procedures, the known consequences of breaching the procedure, and the process adopted in the investigation, I detect no circumstances that would move the Commission to interfere with the decision to terminate Mr Breda's services.

[62] The application for reinstatement is denied.

[63] I so order.

Tim Abey
COMMISSIONER

Appearances:
Mr W Bodkin, with Mr M Reeves, for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Mr R West, solicitor, Minter Ellison, with Mr M Double and Mr W Price, for Zinifex Hobart Smelter

Date and Place of Hearing:
2006
February 17, 22, 23
Hobart

1 Exhibit R4
2 Exhibit A1
3 Exhibit A3
4 Transcript PN 122 to 125
5 Supra PN 264 to 270
6 Supra PN 1694
7 Exhibit R1
8 Exhibit R6
9 Exhibit R13 and A4
10 Exhibit R1
11 Exhibit A4
12 Transcript PN 1190/93, 1203
13 Supra 2041/2
14 Exhibit R1
15 Transcript PN 2059