1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Nejat (Paul) Agas
v
BlueScope Steel Limited
(U2013/2656)
COMMISSIONER RIORDAN SYDNEY, 9 APRIL 2014
Application for relief from unfair dismissal.
[1] This decision is the result of an application by Mr Nejat (Paul) Agas for an unfair
dismissal remedy against Bluescope Steel Limited (Bluescope).
[2] Permission was granted for Mr Agas to be represented by Mr Aron Neilson from
Maurice Blackburn Lawyers and for Bluescope to be represented by Mr Ken Brotherson from
Duncan Cotterill Lawyers.
[3] Mr Agas has been an employee of Bluescope for 27 years. He is a member of the
Australian Workers’ Union, Port Kembla Branch (AWU).
[4] At the time of his dismissal, Mr Agas was employed as a level 5 Operator in the Hot
Coil Processing and Despatch Department (HCPD).
[5] The application was heard on 29-30 January 2014. A site inspection was conducted in
the evening of 29 January, 2014.
[6] Mr Agas provided two witness statements (Exhibit A1 and A2). Supporting statements
were provided by Mr Michael Periera (Exhibit A3) and Mr Colin English (Exhibit A4).
[7] Bluescope relied on two statements from Mr David Jones (Exhibit B11 and B12) who
was the Team Leader on Mr Agas’ shift and Mr Michael McPhan (Exhibit B13 and B14) who
is the Manager of HCPD and Unanderra Coil Processing.
Contentions
[8] Mr Neilson, on behalf of Mr Agas, contended that the dismissal was harsh, as well as
unjust and also unreasonable. He argued that there was a lack of procedural fairness in
relation to the investigation, that the incident was caused by equipment malfunction not
blatant negligence or a reckless disregard for safety, that there were a wide range of
contributory factors, a lack of consistency in relation to discipline within the Department and
that the only fair and appropriate remedy was reinstatement.
[2014] FWC 2277 [Note: An appeal pursuant to s.604 (C2014/4224) was
lodged against this decision - refer to Full Bench decision dated 18
September 2014 [[2014] FWCFB 5993] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB5993.htm
[2014] FWC 2277
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[9] Mr Brotherson, on behalf of Bluescope contended that Bluescope had a valid reason
for the termination of Mr Agas. That it had followed the necessary steps in the disciplinary
process, conducted a thorough investigation of the incident and determined that such repeated
acts of negligence could not be condoned. He argued that Bluescope had an obligation to
protect its plant and employees from further acts of negligence from Mr Agas.
[10] Further, if the Commission found that the dismissal was harsh, unjust or unreasonable
that reinstatement would not be an appropriate remedy.
Background
[11] On 27 July, 2013, Mr Agas was operating Number 1 crane, which is an overhead crane
with a 40 tonne load limit located in K Building, which transfers steel coils around the
building. Each coil weighs on average 20 tonne. Mr Agas would be expected to move
approximately 200 coils per shift when operating Number 1 crane. After picking up the coil to
be moved, Mr Agas travelled across the warehouse in a typical manner. Unbeknown to Mr
Agas, the crane hoist tripped during this procedure. As Mr Agas approached a set of stacked
coils he noticed that the coil he was carrying was not high enough to clear the stacked coils.
Despite disengaging the gears of the crane and trying to re-engage the hoist, the momentum of
the coil being transferred caused a collision to occur with the stacked coils, resulting in
approximately $10,000 damage to the company’s product.
[12] In the previous fifteen months, Mr Agas had been involved in two other incidents
which fall under the broad disciplinary heading of operational negligence.
[13] Mr Agas received a written warning for an incident in May 2012 when he “dropped” a
coil. Mr Agas is one of a number of employees to have dropped a coil in this particular area
and I have taken into account the fact that Bluescope changed the work practice of storing
coils in this area after Mr Agas’ incident.
[14] In October 2012 Mr Agas received a final written warning as a result of a serious
incident which caused $160,000 damage to a piece of Bluescope plant.
[15] Mr Agas was driving a Ram Truck, which is basically a single prong fork lift capable
of transporting the heavy coils around the Bluescope environ, at 1am on 20 October 2012.
Whilst transporting a coil from outside the warehouse to inside the warehouse, the Ram Truck
collided with a stationary barrier which had been installed to protect a rail signal light. The 20
tonne coil was dislodged from the Ram Truck and the vehicle suffered extensive damage.
[16] Mr Agas received a four day suspension along with the final written warning.
Relevantly, the final warning contained the following passages:
“2 November 2012
Mr Paul Agas
Hot Coil Processing & Despatch
Final written warning
...The findings have shown that you have been trained in the safe operation of Ram
Trucks (CP09) and are a ticketed driver. The findings have also shown that your
[2014] FWC 2277
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negligence, in the form of not ensuring the equipment was operated in a safe way
while transferring a coil back to despatch for re-labelling and your poor attention to
detail were the primary causes of this incident.
The incident would have been avoided had you carried out the necessary checks and
ensured the path was clear to drive to the despatch area.
The Company has considered all the factors relating to this incident including your
employment history and your training record as well as your honesty and cooperation
through the investigation process. On this basis you will be issued with a final written
warning and 4 shift unpaid suspension for unacceptable behaviour in the form of
operational negligence.
The Company requires this unacceptable performance be addressed urgently and
reminds you that working safely is a condition of your employment.
Paul, please be aware that this is a final written warning and any future breach of
critical operating procedures, operational negligence, or behaviour of a similar kind
may lead to further disciplinary action, which may include termination of your
employment.”i
[17] It is common ground that, following the incident on 27 July 2013, Mr Agas followed
the appropriate procedures, i.e. he ensured the area was “made safe” and attempted to contact
his Shift Team Leader, Mr David Jones.
[18] Mr Jones attended the site after being informed that Mr Agas had been trying to
contact him. In accordance with policy, Mr Agas was taken for a Drug and Alcohol test,
which returned a negative result.
[19] Mr Agas was then asked by Mr Jones to sit in the Crib Room and write down what
happened. Mr Jones met with Mr Agas approximately 90 minutes later to undertake the task
of completing an Incident Report.
“[37] Mr Agas and I had a conversation about the incident in words to the effect of:
Mr Agas: “I picked up the coil at position 35. I was raising it up whilst
crossing travelling to the C4 area.”
Me: “Are you sure you want to write that as you should only be
doing 1 coil movement at a time?”
Mr Agas: “I was long travelling following the VOTS screen to the
destination allocated. I then realised just before I got to D1 that
I wasn’t high enough to clear the stack and that I could not stop
the crane in time.”
Me: “Let’s just get the facts down and then we will go through the
rest of the investigation before assuming any outcome. I won’t
be able to put you back in the crane for the rest of the shift. Col
[2014] FWC 2277
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[Mr English] is now in number 1 crane, so you can cover his
position at the weighbridge. Are you ok to work in the
weighbridge?”
Mr Agas: “Ok”
Me: “From here we will get the facts down and then it will go to
Mick [Mr McPhan] for further investigation.”2
[20] Mr Agas continued to work the remainder of his shift, although not as a crane driver,
and completed his shift roster the following day working his normal duties.
[21] On 30 July 2012, Mr Boris Baraldi, an Organiser with the AWU, sent an email to Mr
McPhan in relation to the incident.
[22] Mr Agas’ next shift was on August 1 where he was once again assigned normal
operating duties. Whilst there is some conflict between the evidence of Mr Jones and Mr
McPhan as to how and when that came about, the result was the Mr Agas went home on full
pay until the investigation was concluded.
“[50] At approximately 10:15am on 1 August 2013 (Mr McPhan believes that this was
August 2) I spoke to Mr Agas and informed him that until the investigation was
complete he would not be able to carry out any operational tasks. I offered Mr Agas
other office based duties, such as procedure reviews to complete for the remainder of
the shift. Mr Agas was not happy about this, and we had a conversation to the effect
of:
Mr Agas: “this is ridiculous. I haven’t done anything wrong. The crane
failed.”
Me: “We’ll complete the investigation and if that is the case then
there should be no issue with the outcome.”3
[23] It is significant that Bluescope acknowledges that the crane hoist tripped.
[24] Mr Baraldi sent further correspondence on 5 August. Mr McPhan had made up his
mind to terminate Mr Agas by this date.
[25] A peer review was conducted on 5 August which included Mr Gary Meta (PFD
Operations Manager) and three personnel from the HR Department. The peer review meeting
supported Mr McPhan’s view that termination was the appropriate course of action.
[26] Mr McPhan advised Mr Baraldi later that afternoon that Bluescope believed that Mr
Agas should be dismissed. A “show cause” meeting was to be conducted the following day.
Mr McPhan asked Mr Baraldi to ensure that Mr Agas was prepared to raise any mitigating
factors.
[27] On 6 August, Mr Baraldi sent further correspondence to Mr McPhan. Mr Agas
presented this letter to Mr McPhan at the show cause meeting. Relevantly it contained the
following paragraphs.
[2014] FWC 2277
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“... I understand that one of the main contributing factors that led to this incident was
that the crane hoist height high limit malfunctioned.
I acknowledge that one of the other main contributors was my error and lapse in
judgment in misunderstanding that the crane hook block was not in the fully up
position. I actually looked at the position of the coil when the hoist stopped which I
automatically thought was the high limit.
In hindsight, had I not allowed myself to be consumed with the flow of production by
keeping up with the pace of work, and had I approached the first set of double stack
coils with greater caution, then I sincerely believe that I could have prevented this
incident from occurring.
I sincerely apologise for this lapse in judgment and promise that I will not have a
repeat of this type of incident again. This has been a key learning for me and the
incident is an important lesson and experience that I believe needs to be shared with
my fellow work colleagues so that they can learn from this honest mistake.
In closing, I ask you to please give me the opportunity to demonstrate that my recent
history is out of character and does not reflect my 27 years of service with the
company. I am committed to ensuring that I do not have a repeat of my lapse in
judgments in the future.”4
[28] Issues raised at the meeting by Mr Agas and Mr Baraldi included the following:
“(a) A copy of the letter annexed as “MM19” was presented by Mr Agas for
consideration by the Company;
(b) Mr Agas conceded his error as a main contributor for the incident, but still said
the main factor was the malfunction of the crane hoist height limit;
(c) Mr Agas suggested he had not accepted any responsibility for the incident until
now because he was being defensive;
(d) Mr Baraldi was concerned that other drivers may fall into the same trap and any
learning’s must be communicated quickly;
(e) Mr Agas and Mr Baraldi suggested they would be open to any sort of discipline if
the Company was willing to consider other than termination of employment as the
outcome; and
(f) Mr Agas apologised for letting the team down”.5
[29] Mr McPhan was not persuaded by the representation of Mr Agas and Mr Baraldi. Mr
Agas was dismissed the following day, August 7 2014.
Statutory Provisions
[2014] FWC 2277
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[30] The relevant provisions of the Fair Work Act 2009 in relation to Unfair Dismissal
application are ss. 381 and 387.
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[2014] FWC 2277
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(a) Valid Reason
[31] Whether operational negligence exists is a matter to be determined on the facts of each
case. I am satisfied that operational negligence was a contributory factor to the causation of
the incident of 27 July 2013, the subject of this application. As a result of that contributory
operational negligence I am satisfied and find that there was a valid reason for the termination
of Mr Agas’s employment.
(b) Notified of the Reason and (c) Opportunity to Respond and (d) Support Person
[32] The conduct of Bluescope’s investigation is confusing. I have set out some of the
issues below.
[33] An interview between Mr Agas and Mr Jones on the evening of 29 July 2013, was
labelled as an information gathering discussion to assist Mr Jones to complete the incident
report. It was not part of the investigation. At that interview Mr Jones tried to assist Mr Agas
in relation to the “facts” of the incident.
“Are you sure you want to say that.”
[34] Mr Agas was not offered the opportunity to have a support person present at that
meeting, although Mr Baraldi provided assistance to Mr Agas at a later date during the
process.
[35] Mr Agas did not have an opportunity to talk to anyone from Bluescope about the
incident during the investigation until the “show cause” meeting of August 6, although Mr
Baraldi corresponded with Mr McPhan on two occasions during this period.
[36] Mr McPhan decided to dismiss Mr Agas on August 5, before Mr Agas had even had
an opportunity to be involved in a formal discussion in relation to the incident.
[37] Mr Agas was not officially advised of the issues until the show cause meeting of 6
August, although Mr Baraldi was advised of Mr McPhan’s views on 5 August and was
requested to come prepared to the meeting the following day. Mr Agas was dismissed on
August 7. I am satisfied and find that because the investigative process did not involve an
interview with the relevant employee that it was procedurally unfair. I have concluded and
find that a thorough investigation, including a re-enactment of the incident, could not be
properly conducted without any input from Mr Agas.
(e) Unsatisfactory Performance
[38] Mr Agas had been warned in relation to issues of operational performance on two
previous occasions.
(f) Size of Employer
[39] Bluescope is a large employer with a dedicated team of HR specialists.
[2014] FWC 2277
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(g) Any other relevant issues
[40] I have considered the inconsistent treatment by Bluescope of Mr Agas and another
employee
[41] For the sake of privacy and confidentiality, the employee has been identified as Mr Z
during these proceedings.
[42] Mr Z is also a level 5 Operator. He has a significantly poorer disciplinary record in
relation to operational negligence then Mr Agas, yet he still maintains his employment in the
HCPD. A short summary of his relevant work history is set out below.
[43] Mr Z crashed the Ram Truck in 2011 causing $100,000 worth of damage. He was
given a written warning and 2 day suspension.
[44] In August 2012, Mr Z did not keep a proper clearance between coils and dropped a
coil. He tried to remedy the situation without advising his Team Leader. Mr Z was issued with
2 final warnings and a total of 8 days suspension (2x4 days) for this incident.
[45] On Mr Z’s first operational day back from these suspensions he was involved in a
further incident whereby he read a text message on his mobile phone whilst operating Crane
No 4. The crane had stopped. However, when he re-engaged the crane he crashed into a coil
stack and dropped a coil. Mr Z was issued with his third final warning and another four day
suspension.
[46] Relevantly, the final warning letters issued to Mr Z contained the same provisions as
those for Mr Agas.
[47] Whilst Mr McPhan accepted that it was important to treat employees in a fair and
consistent manner, he does not believe that he has acted inconsistently when dealing with Mr
Agas’ disciplinary process and outcome compared to that of Mr Z.
[48] Bluescope raised concerns that, unlike Mr Z, Mr Agas showed no remorse or accepted
no responsibility in relation to his accidents. Mr McPhan acknowledged this was a second
element he relied on to justify Mr Agas’ termination.
[49] It is difficult to identify how Mr Agas could satisfy Mr McPhan’s concern in relation
to any lack of contrition. He stated to his team leader on the night of the incident:
“At the end of the day Dave, I was in the seat”.
[50] On the first opportunity he had to discuss the issue with his manager Mr McPhan on
August 6, he apologised and accepted responsibility.
[51] I have also considered the fact that Mr Agas is the primary income earner of his
family.
[2014] FWC 2277
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[52] I have also considered the fact that, despite being the registered owner of a mechanical
repair business and a qualified motor mechanic, the only meaningful work that Mr Agas has
sourced since termination of his employment has been a role as a casual bus driver.
Consideration
[53] I have already found that Bluescope had valid reason, being operational negligence, to
terminate Mr Agas’s employment. I now have to determine whether the termination of
MrAgas’s employment for this reason was harsh, unjust or unreasonable.
[54] Mr Agas has received two previous and justifiable warnings for operational
negligence. Whilst I believe that the circumstances surrounding the driving of the Ram Truck
in the second incident was an accident waiting to happen because of the extremely poor
visibility for the driver, Mr Agas accepted the penalty of the final warning. I do not intend to
look behind those previous warnings.
[55] I have taken into account the following circumstances surrounding the incident of 27
July 2012.
[56] The layout of K building on 27 July 2012 was unusual due to the lack of double
stacked coils in the near vicinity of the coil that was picked up.
[57] Mr Agas picked up the coil and travelled towards the set down location - travelling in
three directions at the one time, ie lifting, moving forwards and moving sideways. Mr Jones
testified that this practice was unsafe and contrary to the Workcover guidelines. However Mr
McPhan and the three Operators that testified, acknowledged the need to work in this manner
in order to maintain productivity and efficiency.
[58] When Mr Agas realised that his load was too low (as a result of the hoist
malfunctioning) he immediately disengaged the gears of the crane. The crane does not contain
a “dead stop” function. The momentum of the coil skimmed across the top of the first double
stack of coils but collided with the slightly higher double stack immediately behind. I have
taken the crane malfunction into account.
[59] Mr McPhan accepted that the crane malfunctioned but argued that Mr Agas’
negligence went to his reluctance to check the height of the hook of the crane, either by way
of reference point on the back wall or by physically looking at the top of the gantry of the
crane. The logic of this reference point assessment is difficult to understand.
[60] It is clear that the closer an object is to you the larger it will appear. As it moves away
it gets smaller, thereby altering any reference point on a wall some forty metres away. I have
taken this into account.
[61] I consider it significant that there are no written procedures on how to operate Number
1 crane, including how to check the height of the load. Apparently, this information is passed
on via the “buddy” system.
[62] I have also taken into account the fact that number 1 crane does not have an audible or
visual alarm to advise of a hoist malfunction. Such a deficiency results in the Operator being
required to rely on “their eye” rather than the engineering capability of the crane. Mr Jones
[2014] FWC 2277
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agreed that an audible alarm would be “fantastic because the control panel is not in the line of
sight of the Operator.”
[63] I note that both Mr English and Mr Periera testified to having regular near misses
when carrying coils due to the crane not lifting to its optimum height.
[64] I have noted and taking into account that Mr Jones confirmed that the hoist trip was
not the fault of Mr Agas.
[65] Whilst I accept that acts of operational negligence provide a valid reason for dismissal,
particularly if repeated, I do not accept that dismissal from employment for Mr Agas was an
appropriate outcome from the incident of 27 July 2012. Mr Agas acted and reacted in
accordance with his training. If the crane hoist had not malfunctioned then the coil transfer
would have proceeded without incident.
[66] I have concluded and find that the decision to terminate the employment of Mr Agas
was harsh, unjust or unreasonable.
[67] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne sets the
parameters for these types of determinations;
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust
because the employee was not guilty of the misconduct on which the employer acted,
may be unreasonable because it was decided upon inferences which could not
reasonably have been drawn from the material before the employer, and may be harsh
in its consequences for the personal and economic situation of the employee or
because it is disproportionate to the gravity of the misconduct in respect of which the
employer acted. ...
Procedures adopted in carrying out the termination might properly be taken into
account in determining whether the termination thus produced was harsh, unjust or
unreasonable...”6
[68] Appropriately, Mr Brotherson took me to the decision of Lawler VP in Sexton v
Pacific National (ACT) Pty Ltd.7
“[33] It is settled that the differential treatment of comparable cases can be a relevant
matter under s.170CG(3)(e) to consider in determining whether a termination has been
"harsh, unjust or unreasonable". In National Jet Systems Pty Ltd v Mollinger the Full
Bench concluded that in the particular factual circumstances it was appropriate for the
member of the Commission at first instance to have regard to different treatment
[2014] FWC 2277
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afforded to another employee involved in the same incident. That case involved the
termination of the first officer of an aircraft over incident where the flaps of the
aircraft were retracted too soon following takeoff. The Captain on the same aircraft
was not terminated notwithstanding that he also bore responsibility for the incident. It
is apparent from the reasoning that on the particular facts of the case there was no
proper basis for distinguishing between the two individuals and consequently the non-
termination of the Captain was a factor in favour of a finding that the termination of
the first officer was harsh, unjust or unreasonable.
[34] In Serco Gas Services Pty Ltd v Alkenamde the Full Bench adopted the
observation of the Full Bench in National Jet Systems that
"There is little doubt that s170CA(2) enjoins the Commission to apply basic
notions of fairness in carrying out its functions under Division 3. This
injunction is not limited to the manner in which the hearing is conducted or the
consideration of the remedy to be awarded but extends to the Commission's
consideration of all of the relevant circumstances."
and continued:
"We do not think there is any justification in the context 170CA(2) of the Act
for implying that a consideration of the comparative treatment of other
employees is only relevant to the extent that it demonstrates conduct on the
part of the employer which may be regarded as oppressive or discriminatory on
some unlawful grounds."
[35] Moreover, in Serco Gas Services the Full Bench considered a submission that the
decision in Loty and Holloway v The Australian Workers' Union (the decision from
which the notion of "fair go all round" in s.170CA(2) is drawn) "is consistent with the
notion of employers treating different classes of employees differently provided that
the individual is given a fair go as between that employee and the employer and the
employer's conduct is a rational and logical consequence of that circumstance". The
Full Bench agreed that Loty's case "does not preclude the differential treatment of
employees in relation to the application of the principle of a fair go all round."
[36] In my opinion the Commission should approach with caution claims of
differential treatment in other cases advanced as a basis for supporting a finding that a
termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in
determining whether there has been a "fair go all round" within the meaning of
s.170CA(2). In particular, it is important that the Commission be satisfied that cases
which are advanced as comparable cases in which there was no termination are in truth
properly comparable: the Commission must ensure that it is comparing "apples with
apples". There must be sufficient evidence of the circumstances of the allegedly
comparable cases to enable a proper comparison to be made. Obviously, where, as in
National Jet Systems, there is differential treatment between persons involved in the
same incident the Commission can more readily conclude that the cases are properly
comparable. However, even then the Commission must approach the matter with
caution. Specifically, the Commission must be conscious that there may be
considerations subjective to the circumstances of an individual that caused an
employer to take a more lenient approach in an allegedly comparable case. For
http://www.airc.gov.au/wrasections/s170CE.html
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example, a worker guilty of particular misconduct justifying termination might be
shown leniency because of extreme need or stress arising from the serious illness of a
close dependent. Another worker guilty of the same misconduct could not necessarily
rely upon the leniency shown to the first worker as a basis for demonstrating that his
or her termination was harsh, unjust or unreasonable. Many other examples could be
constructed.”
[69] This reasoning was adopted in Darvell v Australia Postal Corporation.8
[70] I support the conclusions of the Vice President. Extreme caution must be exercised. I
have exercised such caution in this case. The simple facts are that Mr Agas and Mr Z are both
long serving employees of Bluescope. Both employees are level 5 Operators working in the
HCPD. Both employees have been involved in serious and similar incidents at work. Both
have dropped coils, both have caused extensive damage to the Ram Truck, both have failed to
judge the height of their load correctly resulting in a collision and damage to company
product.
[71] The differences are that Mr Agas’ coil collision was caused by the malfunction of the
crane compared to Mr Z being distracted, that Mr Z quickly accepted total responsibility
whereas Mr Agas apportioned some blame to the failure of the equipment and that Mr Z has
been given three final warnings and remains employed whereas Mr Agas received one final
warning and was then dismissed.
[72] Mr Agas did not receive a fair go as per the statutory requirement. There has been a
lack of consistent and equal treatment between employees in relation to their disciplinary
outcomes.
[73] I also have some concerns about the behaviour of Mr Jones in this episode. I have
taken his conduct into account.
[74] The requisite fair go was not extended to Mr Agas in relation to the investigation.
[75] He was not interviewed in an appropriate manner until after Mr McPhan had
conducted a peer review at which he recommended Mr Agas’ termination. That was grossly
unfair.
[76] An employee is entitled to have the accusations which threaten his employment
explained to him in detail and preferably in writing. He is entitled to have an opportunity to
respond to those accusations. Mr Agas was not given that opportunity.
[77] I accept that Mr Baraldi was representing Mr Agas, but the AWU’s involvement in the
process does not extinguish the rights of Mr Agas to front his accuser face to face and then
respond accordingly. It is a basic principle of procedural fairness - a principle which was not
afforded to Mr Agas. The peer review conducted on 5 August should not have been conducted
before Mr Agas was even interviewed.
[78] I struggle to comprehend the argument Mr Agas did not show sufficient contrition. Mr
Agas had every right to pass some of the responsibility for the accident to the faulty plant.
The crane had a fault - it malfunctioned. That was not the fault of Mr Agas yet he has suffered
the ultimate penalty for Bluescope’s faulty equipment .
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[79] I acknowledge Bluescope argument that Mr Agas should have seen the height issue
sooner. That was a mistake - an error of judgement, and a contributory factor to the accident
but is not a reason which justifies termination of employment.
[80] If raising the coil to its full or otherwise appropriate height is such a fundamentally
integral component of a safe workplace, then Bluescope should require all Operators to
conclude the vertical lift prior to travelling the coil to its destination. It was acknowledged by
Bluescope that such a procedure would have a dramatic effect on the productivity of the entire
Hot Trim Mill including the upstream processes. However, Bluescope does not operate on the
basis of affordable safety. If such a practice would be safer it should be introduced by
Bluescope.
[81] I have also taken into account the social and financial consequences on Mr Agas as a
result of the termination of his employment. I am not persuaded by Mr Brotherson's argument
that a less harsh outcome would have amounted to condonation of Mr Agas’s failure. The
termination of employment of each employee must be considered on its own facts. It is clear
that Bluescope does not condone operational negligence. Considering what outcome should
apply in the proper context, with a proper regard to overall consistency and fairness does not
condone operational negligence.
[82] I am satisfied and find that the termination of Mr Agas’ employment was harsh, unjust
or unreasonable. It was harsh because the outcome of termination of employment was
excessive given the level of contribution to the operational failure made by Mr Agas’ mistake.
It was also unjust and unreasonable for that reason.
Remedy
[83] Mr Agas meets all of the requirements to receive an unfair dismissal remedy as
stipulated by section 390 of the Act. I note that the primary remedy is reinstatement.
[84] In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Court
said:
“... we accept that the question whether there has been a loss of trust and confidence
is a relevant consideration in determining whether reinstatement is impracticable,
provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of
an employer, accuses an employee of wrongdoing justifying the summary termination
of the employee’s employment, the accuser will often be reluctant to shift from the
view that such wrongdoing has occurred, irrespective of the Court’s finding on that
question in the resolution of an application under Division 3 of Part VIA of the Act.
If the court were to adopt to a general attitude that such a reluctance destroyed the
relationship of trust and confidence between employer and employee, and so made
reinstatement impracticable, an employee who was terminated after an accusation of
wrongdoing but later succeeded in an application under the Division would be denied
access to the primary remedy provided by the legislation. Compensation, which is
subject to a statutory limit, would be the only available remedy. Consequently, it is
[2014] FWC 2277
14
important that the Court carefully scrutinise any claim by an employer that
reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits.”9
[85] In Quinn v Overland, Bromberg J, dealt with the appropriateness of reinstatement:
“...Dismissed employees are regularly reinstated into their former employments
without apparent consequent difficulties. The long-standing nature of this remedy, and
its acceptance as part of the industrial furniture, is a testament to the fact that as a
matter of practice, a breakdown in confidence is not necessarily irreconcilable. What
needs to be achieved by a reconciliation is a sufficient level of cooperation for a
proper working relationship to resume; mutual affection and friendship are not
essential.”10
[86] I do not accept the argument that reinstating Mr Agas would create a danger to
Bluescope’s product or employees. If Bluescope was serious about that submission Mr Z
would no longer be employed.
[87] I do not accept that there has been a breakdown in the employment relationship to the
extent to make a re-establishment of the relationship impossible. Mr Jones is no longer a team
leader in the HCDP and, being a shift worker, Mr Agas would not work at the same time as
his Manager, Mr McPhan, on at least 65% of his shifts.
[88] This matter was listed for hearing on 21-22 November 2012. The hearing was delayed
at the request of the Applicant’s representative until 17 December 2013. The Respondent then
asked for a further delay until the end of January. It is only fair and reasonable that any
determination in relation to lost pay in accordance with section 391(3) and (4) of the Act takes
into account the request for the delay in the hearing by the Applicant.
[89] I therefore order that Mr Agas be reinstated to his role as a level 5 Operator in the
HCPD effective from April 14, 2014.
[90] I order that his employment be deemed to be continuous in accordance with s391(2) of
the Act.
[91] I order that Mr Agas be paid for all lost time since his dismissal on August 7 2013,
less any monies he has earnt in any alternative employment and the four week period caused
by the initial delay in the proceedings.
[92] An Order will be issued to that effect.
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[2014] FWC 2277
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i Exhibit B13- MM11
2 Exhibit B11 - paragraph 37
3 B11 - paragraph 50
4Exhibit B13 - MM19
5 PN79 of Mr McPhan’s statement
6 (1995) 185 CLR 410 at 465 - 468
7 PR931440
8 2010 FWAFB 4082
9 (1997) 72 IR 186 at 191-192
10 Downe at [462].
