Australia: Reinstatement despite serious safety breach

Workplace directions
Last Updated: 8 August 2011
Article by Emma Reilly

Helmut Schuster v Australian Steel Mill Services Pty Limited [2011] NSWIRComm 1028 (30 June 2011)

Past employment record and personal circumstances sufficient to justify reinstatement

Ordinarily an issue between a dismissed individual employee and his former employer would not constitute an industrial dispute for the purposes of s146B: Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132. Unfair dismissal claims heard under Part 6 are customarily heard under a separate code of jurisdiction: Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 at p.49. However, the involvement of a trade union in bringing proceedings on behalf of the employee gives the dismissal of an employee the status of an industrial dispute: Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019.

Consistent with the established safety procedure of BlueScope Steel in the Port Kembla steelworks, ASMS has a system in place to isolate equipment used if it requires maintenance or servicing. Clearly the procedure in place is important to ensure particular machinery or plant on which work is being performed are not restarted when there are employees working on or near it.

Mr Schuster did not deny that on 12 November 2010 he was in breach of a group isolation procedure and that he ran equipment [Conveyor C10] – briefly (from 10 to 12 seconds) but several times (possibly three times) – when it had been isolated. At that time Mr Schuster was working in a cleanup for the metal recovery plant. He was not engaged as isolation co-ordinator on that day but he had bypassed the personal isolation locks by bending the Perspex screen on the isolation board to gain access to the yellow equipment lock. At that time there were other red personal locks on the board other than his own.

The explanation for his behaviour was 'I saw guys over at the workshop. I wanted to get finished so we could go to smoko. I had a brain explosion. It was the stupidest thing and I regret it wholeheartedly. I put myself at your mercy. I thought it was safe because no one stands on conveyors.'

Mr Schuster claimed that the relevant isolation procedure [SP MRP 84] was not compatible with the nature of the work actually performed in the metal recovery plant. He also asserts that, although there were other red personal locks on the board, he had a clear view of the entire conveyor and was confident that there was no one near it. Having said that, Mr Schuster had admitted in his first meeting as to the issue that at the time he ran the conveyor he did not know where the maintenance staff actually were working: they still could have been working on or near it.

Mr Schuster had been working at ASMS for 18 years. He claimed he had not been made aware that such actions could lead to termination of employment. He had observed others do the same. Mr Schuster said in his statement:

'As one of the most experienced plant operators in this area my role is to ensure the safety of inexperienced operators. I usually need to instruct them in the safe methods of removing the build-up from the conveyor and walls. There is no standard operating procedure that inexperienced operators can rely on; they have to rely on operators like myself or their own judgment. When this particular aspect of the job is performed, I'm taken off my primary role as the loader driver due to my experience and motivation for getting the job done. My main priority is always to ensure that no personnel are placed in harm's way. I had ensured this many times during the day when I ran the conveyor. My mistake on this occasion was to not get the maintainers to remove their locks. All of the locations where maintainers work are remote from the conveyor that I ran, namely C10. There was no danger posed to any of them.'

Connor C accepted submissions made on behalf of the employee that it is always open to an employer to choose a lesser penalty to dismissal, for example counselling or a warning, having regard to an employee's otherwise overall clean employment record. It was thought to be a legitimate function of industrial tribunals to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive, as suggested by the word 'harsh' in s84(1): the punishment should fit the crime Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 at p.233 and Pacific Power v Crump (1993) 48 IR 296 at p.302.

Connor C referred to a decision of Fair Work Australia from 24 December 2010 in Lawrence v Coal and Allied Mining Services Pty Limited, trading as Mt Thorley Operations / Warkworth [2010] FWAFB 10089. The Full Bench (Lawler VP, O'Callaghan SDP and Roberts C) considered a similar issue involving an employee dismissed for a failure to follow isolation procedure. The majority decision of Lawler VP and Roberts C was for the reinstatement of the dismissed employee. An appeal against that decision to the Federal Court [Marshall, Cowdroy and Buchanan JJ) was dismissed on 19 April 2011: Coal and Allied Mining Services Pty Limited v Lawler [2011] FCAFC 54.

The employee's circumstances were also taken into account: 18 years of otherwise satisfactory employment with ASMS; the difficulty in finding suitable employment in the Illawarra region; and Mr Schuster is a single parent with two teenage daughters in his care and so dismissal would be a very serious matter for him. Connor C ordered Mr Schuster's reinstatement in employment with ASMS. The employee's culpability meant that he was not compensated for wages lost up to reinstatement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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