Brown v Mount Isa Mines Limited [2002] QIRC 10 (2002) 169 QGIG 159

22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 159 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Gregory Brown AND Mount Isa Mines Limited (No. B1398 of 2001) COMMISSIONER THOMPSON 12 February 2002 Application for reinstatement – Inspection of site – Extensive witness evidence – Applicant’s role as Union representative – Witness credibility – Failure to follow procedure – Long-term employee – Termination not harsh, unjust or unreasonable – Application dismissed. DECISION Background Mr Greg Brown (applicant) had been employed in a number of classifications with Mount Isa Mines Limited (MIM) (respondent) since 17 September 1982, and for the last eighteen (18) months of the employment relationship, had been The Australian Workers’ Union of Employees, Queensland’s (AWU) delegate in the Copper Smelter. On commencement of the proceedings, at the request of the parties, the Commission conducted an on-site inspection of the work area at the Copper Smelter where the incident leading to the termination of the applicant’s employment had taken place. Applicant The applicant’s case before the Commission was supported by evidence from Mr Robert Patch, Mr Brian Williams, Mr Mark McLennan, Mr Brian Anderson, Mr Warren Kemp, Mr Brian Carr, Mr Anthony Williams, Mr Grant Sala, Mr Michael O’Leary, Mr Bryce Eggmoslesse, Mr Trevor Duncan and the applicant. In his evidence, Mr Brown firstly provided some background relating to his employment with MIM and, in doing so, made reference to his untarnished work record, in that during his eighteen (18) years of employment, he had not once been reprimanded or given a warning for performance or conduct. From the commencement of his employment, he had been a member of the AWU and had held the position of Copper Smelter delegate for eighteen (18) months prior to his dismissal. The evidence of the applicant, in respect of performance reviews conducted by MIM since their inception in 1996, was that he had always received “good results in all of the reviews”. His dismissal (without notice) had been effected on 5 July 2001 for an alleged serious safety breach on 4 July 2001 which concerned a failure to follow the correct “lock-out” procedures whilst working on the No. 4 Converter at the Copper Smelter. Between paragraphs 6 and 23 of his affidavit of evidence, the applicant provided a lengthy version of the events that led to his dismissal which included references to:– • direction to relieve Anthony Williams; • Williams’ isolations; • Air Motor isolation points; • lack of facilities for usage of scissor locks; • Tony Coombes’ approach whilst Brown was drilling the tuyeres; • Coombes’ inspection of isolation tags; • involvement of John Rhodes; • meeting between Coombes, Rhodes and Brown; and • standing down without pay. Further evidence was given relating to the applicant’s Union activities since becoming a delegate and, in particular, an incident that occurred in or around November/December 2000 in which the company sought to change the Personal Effectiveness Review (PER) process. On this matter, Mr Brown, on behalf of some forty-three (43) employees, initiated a Fair Treatment Appeal seeking to stop the implementation of the change with the applicant claiming, as a consequence of his involvement, his own PER was marked down by Mr Coombes. On 15 February 2001, the applicant contacted the Anti-Discrimination Commission to raise issue with his PER assessment being marked down because of alleged Union activities. At a further meeting on the matter with Mr Richard Moreland of MIM, Mr Brown advised of his contact with the Anti-Discrimination Commission with the outcome being a positive amendment to his assessment being made by Mr Coombes on the direction of Mr Moreland. The applicant’s evidence also contained details of the Fair Treatment Process in respect of the incident. -- 1 of 10 -- 160 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 Mr Brown also provided to the Commission a statement in reply in which he refuted much of the evidence that was before the Commission in the affidavit of Mr Coombes. A significant issue covered in this matter related to the usage of “group isolations” to which Mr Brown made the following comment in his statement in reply in relation to paragraphs 48 and 49 of Mr Coombes’ affidavit:– “Since my termination and throughout the Fair Treatment process I have had explained to me the Group Isolation process. However, I believe that when this was introduced I had been away for an extensive period of time from work because of my daughter’s car accident. When I was using the term ‘group isolations’ before my dismissal I was referring to a situation where more than one person was required to isolate on a given isolation point at the same time. To my mind, this was otherwise a multiple or joint isolation.”. In responding to the issue of modified scissors, in his statement in reply Mr Brown stated:– “From about the middle of December 2000 until early January 2001 I worked back at the Converters. If modified scissors had been made up, I was not told. But more to the point, I gave John Rhodes an Isafety Report about having the modified scissors made up for the pre-pneumatics. I asked Neil Hastie for a copy of this report for this trial but he told me that he could not find it.”. The cross-examination of Mr Brown was extensive (taking up pages 48 to 139 of transcript) with a wide range of issues being subject to examination including:– • Isolation policy; • isolation and lockout procedures – Copper smelter; • lock and danger tagging; • isolation points for drilling of tuyeres; • modified scissors; • multiple isolations; • MIM safe diary; • fair treatment process and hearings; • accessing pneumatic isolations; • amendments to applicant’s affidavit; • location of (Williams’) isolation key; • applicant’s training assessment records; • Health and Safety slide presentations; and • handrail – impeding access. Mr Jim Murdoch, SC, for the respondent, raised issue with the evidence of the applicant as it related to allegations and comments in respect of Mr Coombes, at page 65, line 8 of transcript:– “Murdoch: Now, you’ve not at any stage retracted your allegation that Coombes is a barefaced liar? Brown: No. Murdoch: And yet you want to go back and work under his supervision you say? Brown: Why not? Murdoch: And you’ve not at any stage retracted the allegation that Coombes was a person who should be drug tested? Brown: No. Murdoch: And yet you want to go back and work under his supervision? Brown: Sure. The drug testing is the same. Murdoch: I beg your pardon? Brown: The drug testing, like it’s - you can - you can - you can - I couldn’t understand what he was talk - what he was going on about with the tags and I put my name on the tags before that, that’s why I said that. Murdoch: So, your allegation is that the fact that he when he checked the tags? Brown: Yeah. Murdoch: At the air blast and the AC isolation points? Brown: Yes. Murdoch: And did not see your name on them, you’re suggesting that was because he was under the influence of drugs? Brown: No, I suppose I’m not suggesting that. Murdoch: Well, what are you suggesting, sir? Brown: Well, me name was on - my name was on the tags before I started drilling and he said that they weren’t. And he was adamant of - of that. Murdoch: Yes? Brown: And I gather I was saying should I get - get instructed as in - in the same. -- 2 of 10 -- 22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 161 Murdoch: Well, the man had checked the tags, didn’t see your name and you’ve suggested because he didn’t see your name that he should be drug tested? Brown: Well, he’s adamant that the names weren’t there. I’m saying that they were. Murdoch: All right. Of course they weren’t there, were they, when he tested because you slipped back later and wrote your name - your signature on? Brown: Not true at all.”. The evidence of the witnesses, on behalf of the applicant, was brief, by comparison to that of Mr Brown, and can be summarised as follows:– Robert Patch Mr Patch gave evidence that in or around August 2001, he became aware of the changes to multiple isolations, the use of scissors and that since August 2001, and that there had been no shortage of locks and tags. Brian Williams Mr Williams gave evidence of his involvement in a safety breach whilst working in the area of the No. 3 Converter in March 2001, and of the subsequent intervention of Mr Coombes. Mark McLennan Mr McLennan gave evidence of his involvement in various forms of isolations, and also the use of modified scissors after August 2001. Brian Anderson Mr Anderson’s evidence was that in February 2001, he had problems with incorrect isolations and lockouts which concluded with a meeting being held with Mr Coombes. At paragraph 6 of his affidavit of evidence he stated:– “6. When I arrived at Tony’s office, he spoke to me about the importance of correct isolations and lockouts. Tony stressed to me that anyone who did not isolate correctly in future would be terminated. I thought that this was a tough stance considering that to this day lockouts are still a grey area and information is slow to trickle down the production path.”. Warren Kemp Mr Kemp gave evidence which detailed the previous practice of writing names on isolation tags directly under the name of operators working on the Converter. He also stated that after August 2001, all lockout points on the blast air and air motor were isolated with the use of modified scissors. Brian Carr Mr Carr gave evidence relating to his involvement in an incident in February 2001 surrounding the lockout procedures. At paragraph 7 of his affidavit of evidence he stated:– “7. Tony arranged for Neil Lloyd (Converter Maintenance Supervisor) to do the lock-out on the furnace, and told me that I must have my own lock and tag on the lock box before jackhammering work can commence. Tony also drummed into me that the next person or persons who did not lock-out in the right matter would be sacked.”. Anthony Williams Mr Williams gave evidence that the applicant relieved him on 4 July 2001 whilst he was drilling tuyeres to enable a crib break to be taken. He noticed that the applicant, prior to commencing work on the drilling, made a check of the isolations. Later that day he was summoned to the office of Mr Coombes and questioned about the location of the isolation tags. In evidence, he stated that when he removed his isolation tags, he recalled seeing Mr Brown’s name also on the tag. At the end of the meeting with Mr Coombes, he was advised that his lockout procedures were 95% right, but he would be receiving a first warning for leaving the keys in the Control Room. Michael O’Leary Mr O’Leary gave evidence that, on 16 November 2001, he had a discussion with Mr Neil Wardle and Mr Coombes on his understanding in respect of lockout and isolation procedures. He also stated that after the dismissal of the applicant, there appeared to be more awareness in the workplace of the lockout and isolation procedures. Cross-examination During the cross-examination of the witnesses for the applicant, the following exchanges occurred in respect of Messer’s Patch, B. Williams, Kemp and A. Williams. -- 3 of 10 -- 162 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 Patch At page 156, line 12 of transcript:– “Murdoch: Let’s be specific in relation to the converters, you’ve never been involved in writing your name on another person’s tag at the converters have you? Patch: I - I don’t think I can say that I haven’t done that, honestly. Murdoch: Well, for years, there’d have been no need for you to do it would there? Patch: Depending on whether you can find tags and that type of thing. Murdoch: Find tags? Patch: Yes. Murdoch: Mr Patch, if you can’t find a tag, the job doesn’t start, does it? Patch: Well, it used to happen quite often, they’d use a tag. Murdoch: Are you seriously suggesting that there were no tags? Patch: Oh, there was mainly tags down the store, but none around and things needed to be done in a hurry. Murdoch: But you know that the correct way is for each person to put on their own danger tag don’t you? Patch: Yes. Murdoch: And you’ve known that for years haven’t you? Patch: Yes.”. Brian Williams Page 162, line 50 of transcript:– “Murdoch: And if you leave the job and someone else takes over, the person taking over is able to put that person’s locks on each of the isolation points without using scissors because you are able to remove your locks and take them away with you, correct? Williams: Um, yes, correct.”. Kemp Page 185, line 32 of transcript:– “Murdoch: All right. Now, when you lock-out what do you do with the key that you have for the locks that you’ve affixed to the isolation points? Kemp: I put it in my pocket. Murdoch: Yes. Why do you put them in your pocket? Kemp ‘Cause they’re my locks. Murdoch: That’s right. And why do you want to keep the key to your locks in your pocket? Kemp So, no-one else can unlock it. Murdoch: Yes. And why don’t you want anyone else to unlock your locks? Kemp: Because [indistinct] converter. Murdoch: And what would happen if that occurred? Kemp: Well, injury I suppose.”. Anthony Williams At page 199, line 20 of transcript:– “Murdoch: Mr Williams, you said that you never have removed your locks when people have come to relieve you? Williams: No. Not when you go for crib, no. Murdoch: All right. And if you’d been asked to remove your locks to enable Mr Brown to put his on, there’d have been no difficulty about your removing them, would there? Williams: No. Murdoch: It would simply mean that when you returned after the hour’s break, that you’d have done your isolation and put your locks back on? -- 4 of 10 -- 22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 163 Williams: Yep, yes. Murdoch: Right? Williams: Yes. Murdoch: And you knew that you had to work under your own danger tag and lock, didn’t you? Williams: Yes. Murdoch: You would never work under someone else’s danger tag and lock would you? Williams: Never have, no. Murdoch: No. So, what’s happened if you’ve gone to relieve someone in a job that is locked-out? Williams: What would happen? Murdoch: Well, when you’ve gone to relieve someone, have you put your own locks on and your own tag? Williams: Yes.”. Respondent Evidence was given in support of the respondent by Mr Coombes, Mr Rhodes, Mr David Thomas, Mr Brett Jeffery, Mr Andrew Harrington, Mr Neil Hastie, Mr Terry O’Neill and Mr Wardle. The primary witness for the respondent, Mr Coombes, had been employed by MIM for twenty (20) years with his current position (also at 4 July 2001) being that of Superintendent – Secondary Smelting in the Copper Smelter. On 4 July 2001, he carried out an inspection of work being performed on the converters and, in checking the No. 4 Converter for the correct isolation, found that the isolation tag bore the name “A. Williams”. After observing the applicant drilling tuyeres, he requested that the drilling machine be shut down and then asked Mr Brown, under whose isolation was the task being performed, with Mr Brown allegedly replying “that the vessel was isolated” and that he was relieving Mr A. Williams who was having crib. When Mr Brown was asked as to the location of the keys, Mr Coombes was informed that they were in the possession of Mr A. Williams. Mr Coombes’ evidence was that after having repeatedly asked the applicant if he was working under Mr A. Williams’ isolation, it was finally stated by the applicant that he had checked the isolation prior to commencing work and all was above board. In his affidavit of evidence, at paragraphs 14 and 15, Mr Coombes told of contacting Mr Rhodes and of the applicant appearing to tamper with Mr A. Williams’ isolation tags:– “14. I then went to the western end of number 4 converter platform and phoned John Rhodes, supervisor – secondary smelting, and asked him to come to the number 4 converter. 15. Greg Brown then returned for the a/c drive isolation point and I asked him to let the air our of the drilling machine. Greg Brown did this and then went down to the blast air valve isolation area. He returned and went back to the a/c drive isolation point. I remained at the western end of the number 4 converter platform and watched what Greg Brown was doing. He appeared to be tampering with Anthony Williams’ isolation tag. When Greg Brown returned I asked him to go and wait at the crib room.”. With the arrival of Mr Rhodes, he took the opportunity to inform him of the situation and, at paragraph 16 of his statement:– “16. John Rhodes then arrived at the number 4 converter platform. I told him that I had done an isolation audit while Greg Brown was drilling tuyeres and found that he had not carried out his own isolation. I also told him that when I pulled Greg Brown up on his failure to isolate, he told me that he thought it was okay to work under someone else’s isolation if you were only relieving. Furthermore, I told John Rhodes that soon after I had spoken to him on the phone, I saw Greg Brown tamper with the isolation tags at the blast air valve and the a/c drive. I then took John Rhodes to the a/c and blast air valve isolation points and showed him what I expected, namely that Greg Brown had written his name on the isolation tags. I explained to john Rhodes that Greg Brown’s name was not on the isolation tag when I had first inspected the tags. I then asked John Rhodes to meet me back at my office.”. A meeting was held involving Messer’s A. Williams, Brown, Rhodes and Coombes which discussed, at length, the situation after which Mr Coombes made contact with Mr Wardle and appraised him of the events to date. After further discussions with Mr A. Williams about the location of the keys, Mr Coombes and Mr Rhodes called the applicant to a further meeting, details of which were provided in paragraphs 32 to 37:– “32. I asked Greg Brown when it was that he wrote his name on the a/c drive and blast air valve isolation tags. He stated that he had put his name on those isolation tags when he had relieved Anthony Williams. I explained to Greg Brown that, when I inspected the isolation tags before I initially spoke to him, his name was not on the isolation tags. Greg Brown stated that he disagreed with my recollection of this situation. 33. I asked Greg Brown why he had gone to the isolation points. He replied ‘to check the information on the tags’. 34. I explained to Greg Brown that I thought he was tampering with the tags and that that was the reason I had sent him to the crib room. He again disagreed. 35. I asked Greg Brown why he had asked me how to get down to the a/c isolation area when he had left the control room if he had already been down there and put his name on the tags. He claimed he was not sure how to get down from that position. -- 5 of 10 -- 164 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 36. I asked Greg Brown that after I had first approached him, why did he go to the end of the platform to check if the isolation was on if he had already put his name on the tags. He stated that he thought there was a ladder access at the end of the punching platform. 37. I told Greg Brown that I did not believe him. I believed that Greg Brown was being dishonest because I knew that his name was not originally on the a/c drive and blast air valve isolation tags.”. At the conclusion of the meeting, Mr Coombes informed the applicant that he was to be suspended on full pay pending further investigations. The following morning (5 July 2001) further meetings over the incident were held at which the applicant was made aware that his alleged behaviour was regarded by the employer as a serious safety breach. After all relevant matters were dealt with at the meetings, Mr Coombes advised the applicant of his decision, the detail of which was contained in paragraph 55 of his affidavit of evidence:– “55. I asked Greg Brown again if there was anything else he would like to bring to my attention. He replied that he had covered all he wanted to. I explained to Greg Brown again the seriousness of the safety breach and that I had no choice other than to terminate his contract of employment immediately because I had lost confidence in his ability to have proper regard for fundamental and basic safety procedures. At no time was my decision to terminate Greg Brown’s employment in any way influenced by Greg Brown’s membership of the Union or his activities as Union delegate.”. Further evidence was given by Mr Coombes of his involvement in processing the applicant’s PER assessment and of his decision to mark down Mr Brown in a number of areas. Finally, in his evidence-in-chief, he gave specific information relating to isolations and, in particular, audits, discipline and tagging procedures. Cross-examination Mr Swan’s cross-examination of Mr Coombes addressed a range of issues including:– • February 2001 incident where three (3) persons worked under one (1) tag; • termination of employee found breaching isolation policies; • modified scissors – availability; • Department of Mines inspection at the converters on 6 July 2001; • unblemished work record of the applicant; • PER – marking down of Mr Brown; • MIM Drug and Alcohol policy; • applicant’s request to have Mr Coombes drug tested; • monthly safety meetings – Mr Coombes’ attendance; • site procedure SAF 1361; and • handrails and other rails in the vicinity of the air motor isolation point. In reference to the allegation levelled by Mr Coombes that the applicant tampered with the isolation tags, at page 230, line 1 of transcript:– “Swan: Yes. Okay. Now, can you explain what it is that - that you saw Mr Brown doing with the tags? Coombes: Mr Brown went to - after we had left the control room, I had to show Mr Brown how to get down to the ACU because he was walking around, didn’t know - didn’t know how to get down there. He actually went down to the ACU. He came back up and I asked Greg to let the air out of the drilling machine. He then went to the blast air valve and then went back down to the AC drive again and he had his back towards me and he was mucking around with the - the tag. Swan: Okay. He had his back towards you? Coombes: Yep. Swan: You didn’t have a view - a clear view of the tag? Coombes: I didn’t have a clear view of the tag. Swan: So, you couldn’t see whether Mr Brown had anything other than the tag in his hand at the time? Coombes: No, I couldn’t see whether he had anything else in his hands. Swan: Is it possible that Mr Brown was lifting the tag and looking under it? Coombes: It’s possible, yeah. I don’t understand why he’d have to do that, seeing as he’s been down there several times. Swan: Okay. Well - yes, been down there several times doesn’t fit very comfortably with your contention that Mr Brown didn’t know how - how to get down there; does it? Coombes: Just that that’s before the - we actually - he went down there. I had to show him how to get down there.”. -- 6 of 10 -- 22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 165 Mr Rhodes, a Supervisor in Secondary Smelting at the Copper Smelter, gave evidence of his involvement in relation to the incident including his recollection of the detail of meetings he attended along with Mr Coombes and the applicant. At the conclusion of the process, which resulted in the termination of the applicant by Mr Coombes, a request was made of Mr Rhodes to escort Mr Brown off the mining lease. In his affidavit, at paragraph 29, Mr Rhodes stated:– “29. I was then asked to escort Greg Brown to get his personal belongings. Whilst escorting him to retrieve his belongings, Greg Brown said to me ‘You know he’s lying about the tag don’t you’. I did not reply to the question. I waited outside the door whilst Greg Brown got his belongings.”. Also covered by Mr Rhodes in his evidence were the issues of isolation and tagging procedures. In cross-examination, Mr Rhodes responded to questions on numerous matters including:– • modified scissors; • PER – rating for Mr Brown; • applicant’s integrity; • lockout procedures; and • isolation and lockout procedures – overheads. The evidence from the remaining witnesses for the respondent can be preceded as follows:– David Thomas Mr Thomas’ evidence, a Senior Operator, focused on the responsibilities of each individual to adhere to proper isolation and lockout procedures and also the Company’s reaction to breaches of policy. Brett Jeffery During the course of Mr Jeffery’s employment, his evidence was that he failed to follow correct isolation procedures and was subsequently disciplined by MIM. Andrew Harrington Mr Harrington, employed as a supervisor in the primary smelter, stated in evidence his understanding of the isolation procedures. At paragraph 5 of his affidavit he stated:– “5. To the best [of] my knowledge, during my time in Secondary Smelting, every operator working in the area followed the proper isolation procedure. I have never heard or found anybody working under someone else’s isolation lock and tag. Nor have I ever heard or found anybody putting more than one name on an isolation tag and lock when isolating equipment.”. Neil Hastie Mr Hastie, Employee Services Superintendent, gave evidence in respect of his role in fair treatment hearings and other disciplinary processes. Terry O’Neill Mr O’Neill, Engineering Manger of Metallurgical Plants, gave evidence relating to the chairing of a fair treatment hearing involving the applicant on 19 July 2001. His affidavit of evidence, at paragraph 7, provided his opinion of the behaviour of the applicant in covering up his actions:– “7. I did not believe that Greg Brown wrote his name on 2 of Anthony William’s isolation tags prior to his commencing drilling tuyeres. I believe that he wrote his name on 2 of Anthony Williams’ isolation tags after Tony Coombes had discovered that Greg Brown had not carried out any isolation and initially questioned him on the issue in an attempt to cover up his failure. I considered this denial and deceit as an attack on the integrity of the isolation system and therefore serious misconduct on Greg Brown’s behalf.”. Following a review of all the material put before the hearing, Mr O’Neill formed the view that the decision to terminate the applicant’s employment was as a result of his failure to follow proper isolation procedures and not related to his union activities. Neil Wardle In giving evidence, Mr Wardle, the Copper Smelter Manager, told of being informed by Mr Coombes of the failure of the applicant to follow the correct isolation procedures. A fair treatment hearing held on 5 July 2001 was chaired by Mr Wardle, and at paragraph 9 of his affidavit of evidence, he gave his reasoning for the outcome of that hearing:– “9. Nothing which Greg Brown said during the fair treatment hearing altered my view that termination of his employment was warranted in the circumstances because termination was the only form of discipline that met the gravity of his serious misconduct in failing to isolate together with his denial and deceit. I therefore affirmed the decision to terminate his employment. At no stage was my decision to affirm termination of his employment in any way related to Greg Brown’s Union membership or activities as a Union delegate or indeed the fact that he was to appear as a witness in a then upcoming hearing in the Commission. In fact, Greg Brown’s statement during the fair treatment hearing that he was to appear as a witness in the then upcoming Commission hearing was the first time that I became aware that Greg Brown was involved as a witness. -- 7 of 10 -- 166 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 The evidence of Mr Wardle also encompassed the isolation and tagging procedures. Cross-examination Mr Swan cross-examined each of the respondent’s witnesses and, in the case of Mr O’Neill, at page 329, line 38, of transcript, sought to delve into the applicant’s previous employment record:– “Swan: Now, when you reviewed or conducted – sorry – the fair treatment hearing with respect to Mr Brown’s appeal, you understood it to be the case that Mr Brown did not have any record of disciplinary action against him in his previous 18 years of service with the company? O’Neill: Correct. Swan: Right. And do I take it that you – did you know Mr Brown prior to that particular date? O’Neill: Yes. I have had contact with Mr Brown before. Swan: And how did you find Mr Brown as a – as a person on the lease? O’Neill: Prior to this incident I had no difficulty with Mr Brown at all.”. Final Submissions Written outlines of submissions were provided to the Commission by each of the parties. Applicant The applicant’s submissions were set out under the following headings:– • background; • the Personal Effectiveness Review of February 2001; • allegations of tampering with the tags; • tagging-out procedures; • evidence of Neil Hastie on alleged discussions with the AWU; • evidence of Neil Wardle on “C” crew safety meetings; • evidence of Tony Coombes on improvements to No 4 converter; • accessibility of modified scissors; • MIM’s Code of Conduct and Values; • attempt to impugn Brian Anderson; and • conclusion. Mr Swan, for the applicant, relied heavily upon the unblemished work record of Mr Brown of which there was no evidence of any counselling, warnings or disciplinary action over an uninterrupted period of eighteen (18) years. Until the events of 4 July 2001, even the evidence of the respondents’ witnesses in Mr Coombes and Mr Rhodes did not question the honesty or integrity of the applicant. There was evidence before the Commission that at least one other MIM employee (who at the time was acting in a supervisory capacity) had been warned about identical conduct and not dismissed even though he had previously been issued with two (2) final warnings. The lack of any warning in this case is a material decision that the Commission should take into account. The applicant had attempted to mitigate his losses by taking what casual work was available and it was clear that the effects of the dismissal were profound for the applicant. The remedy sought by the applicant was reinstatement and the payment of compensation from the date of dismissal until his reinstatement is effected. Respondent The outline of submissions from the respondent included reference to a number of authorities that were relied upon, with other issues under the following headings:– • Introduction; • Outline of relevant facts; • Legal conclusions – • Unfair Dismissal – the role of the Commission; • Failure to follow fundamental procedures; • Untruthfulness and breaches of trust; • Witness credibility; • Factual conclusions – • Applicant’s claim that he could not effect personal isolations because he was not aware of the existence of modified scissors is an irrelevant issue in the circumstances; • The Applicant was not impeded from accessing the air motor isolation point on 4 July 2001; • The Applicant was aware of and had been trained in respect of proper isolation procedures and was aware of the potential consequences for failing to comply with isolation procedure; • The Applicant’s serious misconduct was aggravated by his denial and deceit as to when he actually wrote his name on Mr Anthony Williams’ isolation tags at the blast air and a/c drive isolation points; • The Applicant is not a credible witness; • The Respondent was not in any way motivated to dismiss the Applicant because of his role as a Union Representative; • The process leading up the Applicant’s dismissal was fair; and • Reinstatement impracticable. -- 8 of 10 -- 22 February, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 167 Conclusion Mr Murdoch’s submissions covered, in detail, the course of events from the company’s perspective, including assertions in relation to the untruthfulness and credibility of the applicant. On matters of law, at paragraphs 34 and 35 of the outline of submissions, he submitted:– “34. The case law clearly establishes that one instance involving dishonesty or a gross breach of trust will warrant summary dismissal if that instance was particularly grave. An employer who has lost all confidence in the ability of an employee to act in a trustworthy matter is entitled to dismiss the employee. . . 35. It is trite law to state that if a witness’s testimony is unsatisfactory and lacks credibility, it may be rejected (in whole or in part) by a tribunal of fact. In determining whether a witness’s testimony is to be rejected, the tribunal of fact considers not only the witness’s demeanour, but also whether the witness exhibits elements of bias, evasiveness or acting in a self protective manner during oral testimony. Furthermore, the tribunal of fact also considers corroborating evidence and other documentary material supporting or contradicting the witness’s claims.”. It was strongly argued that Mr Brown could not be regarded by the Commission as a credible witness and that his misconduct warranted the termination of his employment. The applicant’s role as Union representative for the AWU was in no way motivation for the respondent to effect the termination. The respondent was clearly opposed to the applicant being reinstated and, at paragraph 102 of the final submission outlined:– “102. If the Respondent was forced to rely on a person who makes serious allegations about co-workers and management without foundation and who has demonstrated a significant lack of integrity and honesty, then there is a real potential that the Respondent and the Respondent’s other employees would suffer detriment. Given the Applicant’s clear contempt for telling the truth, it would be impracticable to order that the Applicant be reinstated if it was found that his dismissal was unfair. Put simply, the Applicant has clearly demonstrated that he is a person who cannot be relied upon to adhere to either the fundamental health and safety procedures or the values embraced by management and other employees.”. Decision In this matter there existed, to some extent, common ground, in that on 4 July 2001 the applicant, when relieving a fellow employee in the task of drilling tuyeres at the No. 4 Converter, failed to adhere to the correct isolation procedures as set out in MIM policy. The applicant, an employee of eighteen (18) years had, on the evidence before the Commission, received appropriate training in the area of isolation procedures and had acquired, over time, significant workplace knowledge that would lead to him knowing that his actions on the given day were not correct or in line with his employer’s stated policy. It was claimed by the applicant that, in failing to put in place isolation procedures under his own hand, he had simply followed a well known and established practice that existed in the workplace of performing work under another person’s isolation tag and by the addition of his signature to that tag he had satisfied what he believed to be an acceptable practice. The Commission was not provided with evidence that supported the practice of signing on under another person’s isolation tag and therefore discounts the evidence of the applicant that this practice was either widespread or, for that matter, in existence within the workplace. The respondent put forward evidence through its primary witness, Mr Coombes, that he had inspected the tag under which the area being worked by Mr Brown was isolated and on his first inspection the tag bore the name of Anthony Williams and no other name. A short time later, after some discussions with Mr Brown, Mr Coombes stated, in evidence, that he observed the applicant in the vicinity of the tag in question and at a further inspection of that tag found that the applicant’s name had been added. There is no doubt in the mind of the Commission that a range of employees, in both recent and not so recent times, have worked under the isolation tags of other workers and, as a consequence, have been subject to various forms of discipline. In this matter, the applicant, a long-term employee with a solid work record which was “squeaky clean”, in the view of the Commission would, under the circumstances of being found, as he was in the first instance, working under Mr A. Williams’ tag, have been harshly dealt with if the punishment afforded as a result of that action was the termination of his employment. However, I have concluded, in accepting the evidence of Mr Coombes as opposed to that of the applicant, that the reason for the termination was directly related to the belated signing of the tag by the applicant and his refusal to acknowledge that action during the course of both fair treatment proceedings. The Commission is satisfied that the employer followed proper procedures in the conduct of the matter, and it is worth noting the following extract from the decision Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224, at page 229, which identifies such procedures:– “Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”. I have also duly considered the evidence put by the applicant that his role as Union representative for the AWU was a reason for the termination, however, whilst not subscribing to the view of the applicant that his role as a Union representative was the reason for the termination. I do not think it is unreasonable to assume that the applicant may have had a genuinely held belief that, because of recent Union matters in which he was involved relating, in particular, to the PER reviews, by counter signing the isolation tag he may lessen the level of any disciplinary action arising out of the incident. -- 9 of 10 -- 168 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 February, 2002 Having considered all of the evidence material and authorities placed before the Commission in these proceedings, I find that the actions of the employer were not harsh, unjust or unreasonable in terminating the employment of the applicant. The application is dismissed. I order accordingly. J.M. THOMPSON, Commissioner. Released: 12 February 2002 Appearances:– Mr B. Swan, of The Australian Workers’ Union of Employees, Queensland, for the Applicant. Mr J. Murdoch, SC, instructed by Mr D. O’Brien of MIM Holdings Limited, for the Respondent. -- 10 of 10 --