Caldwell v Mount Isa Mines Limited [1994] QIRC 112 (1994) 145 QGIG 763

762 QUEENS LAN D GOYERN l\1ENT INDU STRIAL GAZETTE [8 April, 1994 8 April, I 994] QUE ENSL AN D GOVERNMENT INDUSTRIAL GAZETTE 763 #### # ########### ########################### #### # # ### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 174 - applicat ion for re i nsta tement Jam es Denis Ca ldwell AND Mount Isa Mines Li mited (No 8638 of 1993) MO U NT ISA M I NES LI M ITED AWARD COMM ISS IONER BECHLY 25 March 1994 Termination of Emp loyment - Di smissa l - Re in statement - Internal Appeal Process Inconsistency Employee Performance - Wo rk Rev i ew - Sa fety Regu lati ons - Work Procedures - Discrimi na tion - Unfair and Unjust D i sm issal - Interven ti on by Commi ss ion Warranted - Applicant to be Re- Emp loyed as an Electri ca l Trad esperson on Aboveground Electri ca l Tr ade Work as from 23 February 1994. DECIS ION Mr James Deni s Ca ldwell was employed by Mou nt Isa M i ne s Limited (MIM) as an apprentice and l ater as an electri ca l fitter/mechanic from January 1969 until his employment was terminated on 10 September 1993 following an i nc ident involving the switching of 3.3Kv power incl uding the testi ng for " dea d" w ithout authori sa tion and wi thout use of the proper equipmen t. Interna l appeal procedures were initiate d by M r Ca ldwell and, on 15 Sep tember 1993, at the fi rst of three stages of t he appeal process, the appeal was rejected. Mr Ca ldwell then determined not to proceed with the re mainder of the appea l process and so informed t he Company and Th e Electrical T rades Union of Employe es of Austra lia, Queensla nd Bra nch (ETU). Mr Ca ldwell la ter changed his mind and sought access to the rema inder of t he appeal process. Th is matter was the subject of di scuss ion between the ET U representing M r Ca ldwell and the Company in October 1993 but the parties iailed to agree on re- opening t he appeal. The present appli ca t io n was then made and heard in M t. Isa on 22 and 23 Fe bruary 1994. During these proceed i ngs the act io n alleged by the Company was ac kn ow l edged by Mr Caldwell . It is therefore no t necess ary to go in to any detail of t he procedures and regu lations wh ich he fai l ed to observe. However, while ac k now ledging the action it was argued in mitigation that:- • Although M r Ca ldwell was not formally authori sed to perform the swi tchi n g, he h ad been tra ined in the process. • He was a competent electrical trad esman wh o, other than for a mi nor matter re l at ing to ta king a lunch break some 10 to 12 years previ ous ly, had not been reprimanded by the Company during his 25 years of employment for any matter re lating to pe rformance of his duties and that further there was no evidence to suggest that his employment record was below standard. To the contrary the evidence is th at he has given good se rvice to the Company. • H is acti ons in this matter were not ta k en in a manner whic h wi lfully se t ou t to repudi ate his contr ac t. Rather he sought to maintain the fl ow of work at his wo rkplace. H is action clearly indicated a w illingness and desire to con tribu te positively to the work req uirements of the Company by way of us e of initiati ve to maintain wo rk flow. • W i th such a long and vi rtually unblemished record he should have been subject to the di sc iplinary process which t he Co mpany has ap p li ed to other employees in like ci rcumstances and been counselled and/or suspended rather tha n inst an tly termi nated. Th ere is no question that Mr Caldwell ac ted in breac h of well estab lished safe ty regu i at i ons and that breach of t hese reg ul at i ons and procedures put at serious ri sk Mr Ca ldwe ll' s own li fe as well as the lives of other employees and sa fe ty of pl an t and equipment. This even t occurr ed underground which heightens the danger to personnel and plant quite considerabl y. Fu rt he r, M r Caldwell was aware at the time of his actions that he was ac ting in breach of sa fety regu l at i ons and correct wo rk procedures . The question to be determined is wh et her th e Compan y, in summ ar ily di sm issing Mr Caldwell, acted in a harsh, unreasonable or unjust manner. Mr Ca ldwell appears to have a v irtual ly u nb l em ished record of some twenty-fi ve years servi ce with the Company. Wh ile he was invol ved in two ser i ous moto r vehi cle accidents approximately 20 years ago wh ich caused si gn ifican t physi ca l an d mental impairment, th ese di sab ili ties h ave been largely overcome and M r Ca ldwell has been ab le to function effectively as an electri ca l tradesman, al tho ugh a residual effect of the accidents has left M r Ca ldwell "a heck of a l ot slower than everyone el se" (transcript p .4). D uring t he intervening yea rs M r Ca ldwell h as successfully completed studi es in introductory electronics. An assessmen t by way of a Wo rk Rev i ew conducted by the Company in Apri l 1991 placed M r Ca ldwell on a rat ing of "Good" where the rat in gs avail ab l e we re Very Good, Good, Accept ab le an d Poor. He was assessed as having a Good safety r ec ord, an Accep tabl e j ob effectiveness record and a Good record of reliability and behaviour. The assess ment sugges ts to me that the incident for wh i ch he was dismi ssed was a "one off" act i on and qui te out of character. In t he area of Safe ty where M r Ca ldwell was assessed as having a -- 1 of 2 -- 764 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT E (8 April, l 994 Good record he was fu rther assessed as having Good initiative in moni tori ng h is own safe work performance, identifying probl ems in procedures/equipment and in making ap propriate suggest i ons 10 hi s supervi sors together w ith an Acceptable record of compliance in us ing appropriate pe rs onal safety equipment at al l times and ad heri ng to safe working practi ces at all times. The state d purpose of the Work Rev iew was to provide an objective assessme nt of every M ine employee' s pe rformance within their current section to recogni se good workers and identify empl oyees with substandard performance and estab lish a cour se of acti on to improve overall performance. The only com ment made on M r Caldwell 's assess m en t was "m o re training in read ing sc hem at ics would help Denis, otherwise he is a good employee". Th is assessment was carried out during the period th at M r Ca l dwell was working undergroun d. Pri or to February 1989 Mr Ca ldwell was employed in the main workshop. At h is own request he transferred underground and was trans ferred on a number of occasions withi n various underground maintenance departments. Jt wou ld appear, from t he evidence, that the re lationship between M r Ca l dwell and underground management was not comfortable and on one occasion an attempt was made to transfer Mr Caldwell back 10 the wo rkshop. This w as res i sted by Mr Ca l dwe ll. O n mo re recent occasions proposals were put forward to provide Mr Caldwell with a ran ge of ad ditional training. These were loo k ed u po n with some su sp icion by M r Caldwell and apparently regard ed as an attempt to remove him from underground maintenance. Wh ile that does not appear to be the bas is for the proposed tra ining i t is evident t ha t Mr Ca l dwe ll was not regarded by management as be ing su itable for the work requi red on underground maintenance. It is clear from th e evidence that the Company did not avail i tse lf of the internal discipl inary process wh ich ha s been used in similar circumst ances in the pas t. Th is disciplinary process includes the u se of counselling and suspensions where emp loyees commit va rious misdemeanours including breach of safe ty regulations an d sa fe working practi ces. No specific information was provided to t he Commission as to w hy M r Caldwe ll was excluded fr om thi s pro cess although a pass ing reference was made to the disciplinary ac tion depending upon th e degree of the offence. It i s on this po int th at I beli ev e the Com pa ny's action can be judged as to whether it was harsh, un fa ir or unjust. In this rega rd I refer to a d ec i si on of the Commi ss ion in Case No . B672 of 1993 M s L. Dunstan -v• Mou nt Isa Mines Limi te d da ted 14 Ma rch 1994 (unreported) where th e Company exerci sed the internal disciplinary process by way of counselling and suspen sion of an electrical tradesper son who had breac h ed sa fety regul at ions in a serious manner on a number of occasi ons. Two of these inciden ts resulted in serious injury to the tradesperso n and an apprenti ce. One of the incidents wo uld ha ve res u lt ed in a prosecution of th e tradesperson by the Chief Inspector of M i nes except for t he intercess ion oi t he Company which was accompani ed by a proposal to prov i de coun se ll ing and re medial training. In th e absence of the sa me action by the Company in t he c ase of Mr Ca ldwe ll, or satisfactory reason as to why the internal processes were not appropria te, the Company 's ac ti o ns in terminating Mr Ca l dwel l cou ld be regarded as discrimi na tory and in my view un fa ir or unjust by reason of inconsistency in application of di sc iplinary processes tor si mi lar offences. Intervention by the Comm i ss ion is therefore warranted. In view of M r Cal dwe ll's volunt ary w ithdrawal from the internal appeal process I do n ot believe that reinstatement from th e date of term in at ion i s appropriate. The form of any re-e mp l oy ment or reinstatement needs to tak e into co ns iderat ion the rel at io ns hip between Mr Caldwell and underground management prior to th e term inati on, the ev i dence of t he Supervi sor M r A. M cilwain and the fo reman M r A. Hinkley as to their perceptio n of the skills possessed by Mr Ca l dwell, and the previo us attemp t to tr ans fer Mr Caldwell to surface duties. Ta king these matters into account I determine tha t M r Cal dwe ll be re-employed as an electrical tradesperson from 23 February 1994 and that he be emp loyed above ground on electrica l trade work as determi ned by the Company. Ca lc ulation of the remuneration payable to M r Caldwell from 23 February 1994 sh al l be in acco rd ance with s.175(5) of the Act. Mr Ca l dwe ll i s ordered 10 repay amounts paid 10 him by the Company on account of his te rmination. Th is deci si on , base d as it is on inco ns istency of treatment of employees, in no way denigrates the Company's safety polic ies and traini n g. Th e training given to electrical employees appea rs to be of a high standard and th e standard of performance expected of employees appea rs to be reasonable. Howeve r, I am concerned th at any pe r son may take from this decision that breaches of safe ty requirements, and in parti cu l ar ini tial breaches, c an be commi tted w it h impunity. I wou ld c au tion aga in st such interpretation. R.E. BECHL Y, Comm is sioner. Appearances:- Mr W. Threl fa ll, with h im Mr S. Sodervik, for The Electri ca l Trades Union of Empl oyees of Australi a, Queensland Branch, for the appli ca nt. M r N. Hastie, wi th him Mr S. Beach and M r J. Burton, for Mount Isa M ines Limi ted . Op erative Date: 23 Februa ry 1994 Decision - Re i ns tate ment Released: 25 Ma rch 1994 #################################################### - --, 8 April, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 765 -- 2 of 2 --