| FWC 846 [Note: An appeal pursuant to s.604 (C2018/1096) was lodged against this decision.][Note: This decision has been quashed - refer to Full Bench decision dated 7 June 2018 [ FWCFB 3346]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Nyrstar Hobart Pty Ltd
DEPUTY PRESIDENT BARCLAY
HOBART, 8 FEBRUARY 2018
Application for an unfair dismissal remedy – alleged safety breach – employed for 37 years with Respondent and predecessors – no relevant prior conduct matters – valid reason but dismissal harsh
 On 24 May 2017, Mr Peter Brian (the Applicant) made an application for a remedy for his alleged unfair dismissal from his employment with Nyrstar Hobart Pty Ltd (the Respondent) pursuant to s 394 of the Fair Work Act 2009 (the Act).
 Both parties were given permission to be represented by legal practitioners.
 The Applicant was employed by the Respondent from 19 March 1980 until his dismissal which took effect from 8 May 2017, a period of a little over 37 years.
 At the time of the dismissal the Applicant was employed as a Plant Operator. During the course of his employment the Applicant had received two formal written notifications relating to his employment. The most recent was approximately 14 years prior to the dismissal. Both incidents occurred within a few weeks of each other.
 The dismissal related to a safety breach. In summary, the Respondent submits that there was a valid reason for the dismissal and the breach was so serious that it outweighed considerations of length of employment and the absence of recent workplace notifications, and any other relevant considerations such that the dismissal was not harsh, unjust or unreasonable.
 For his part the Applicant submits that there was no valid reason for the dismissal. However, even if there was the dismissal was nevertheless harsh, unjust and unreasonable having regard in particular to the very long period of service the Applicant had with the Respondent, the absence of recent prior notifications and the effect on him personally having regard to his potential for future employment and that overall the sanction of dismissal was disproportionate.
Summary of Outcome
 For the reasons which follow I have found that there was a valid reason for termination. The Applicant was guilty of a serious safety breach. He proceeded to energise equipment which was still being worked on by maintenance. He removed tags from the equipment when he should not have done so, and knew he should not have done so. He potentially exposed a maintenance worker to the risk of injury. However, I have also found that the termination was harsh. The Respondent failed to seek submissions from the Applicant in respect to sanction. Accordingly, he was denied procedural fairness in this regard. The Applicant had been employed by the Respondent and its predecessors for 37 years. He had no relevant previous warnings and only had two counselling matters some 14 years prior to dismissal. He had worked his whole life in employment at the Respondents premises. It is unlikely he will be able to obtain alternative employment due to his age and skills. A single safety breach over a 37 year career of the type the Applicant is guilty of does not justify dismissal.
 Prior to considering the merit of the matter I am require to have regard to the matters referred to in s 396 of the Act. In that regard the Application was made within 21 days of the date of dismissal. The Applicant is protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply and this was not a case of genuine redundancy. Accordingly it is in order for me to consider the merits of the Application.
 The facts are not really in dispute. On 21 April 2017 during his shift the Applicant removed a Live Testing Statement and a Person in Control Tag from the control panel of a zinc dust elevator and started the equipment. At the time maintenance was being carried out on the equipment. The Applicant knew that maintenance was being carried out on the machine. He had been told the day before that maintenance was to be carried out. He saw workers working on the equipment. He saw tags on the equipment which indicated maintenance was being carried out on the equipment.
 It was an issue whether the Applicant intentionally removed the Person in Control Tag. The Applicant said he removed it inadvertently. He only knew he was removing the Live Testing Statement. It was the Respondents case that he removed it intentionally.
 At the end of the day I think little turns on the distinction. In any event the evidence of Mr Moore, who placed the tags on the equipment was that they were attached together with a plastic keyring clip. The Person in Control Tag is about the size of a credit card. The Live Testing Statement is about the size a half an A4 sheet of paper. The Person in Control Tag was behind the larger Live Testing Statement. Both were hung from the equipment by the plastic keyring. 1 I find it was possible that the Applicant could remove the Live Testing Statement and not be immediately aware he had removed the Person in Control Tag. However for the reasons I deal with later I think nothing turns on the whether the Applicant knew he had removed two tags. The point of the Respondent is that the Applicant should not have removed any tags and should not have started the equipment. For the reasons which follow I think the point is well made.
 Having removed the statement and tag the Applicant started the equipment. The Applicant says that he thought that the workers had finished work.
 In his statement 2 the Applicant outlines his movements leading up to his starting the equipment3. He says that after lunch he went up to Mr Moore who is employed by the Respondent as a maintenance worker. Mr Moore was in charge of the work on the equipment. The Person in Control tag was his. The Applicant alleges that he asked Mr Moore if he would like a hand. He says that Mr Moore indicated “that would be good”.4 At that stage the maintenance had reached the stage of putting a back plate back onto the machine. The Applicant asserts he assisted by handing some tools to the fitters. He confirmed this version of events under cross examination.5
 Mr Moore however does not recall the Applicant offering assistance. He does concede that the Applicant may have handed some tools to the maintenance workers. 6 He does however recall the Applicant asking how he was getting on and telling the Applicant the work should be finished in about 10 minutes. This is significant as the Applicant did not thereafter ask any maintenance worker whether in fact they had finished.
 The Applicant then went to move a zinc dust bin closer to the equipment so he could start work as soon as the maintenance had been completed. He thought that by the time he had done that the maintenance would have been finished.
 When the Applicant moved the zinc dust bin he utilized a forklift. As he drove the forklift towards the equipment he removed a barrier tape which was across the laneway where the maintenance workers were working. 7
 After he parked the forklift the Applicant saw Mr Moore packing up. He assumed that the work including the live testing had finished. Accordingly he thought it was ok to check if the equipment was working.
 He approached the control panel of the equipment and saw the live testing statement. While he had not seen one before he knew generally what it meant 8. He then took the statement off the control panel and started it up.
 As soon as the equipment was started Mr Moore approached the Applicant to find out what he was doing. He said words to the effect that he had not signed off the job, that the Applicant had done the wrong thing and he sent the Applicant away.
 The issue of signing off is significant. Until a job is signed off by the person in control the equipment is not cleared to be used. The Applicant knew this 9. He said the following under cross examination:
“When the maintainers are working on a piece of equipment, its usual practice, isn’t it that they hand it back to operations at the end of the job? They do, yes.
At that point, they’re signing off that they’ve finished their work on that piece of equipment? That’s correct.” 10
 He also said: 11
“What did you do then?
Well, I went – because the actual zinc dust bin was – there’s two. There’s a long lane that’s part of the purification then a shorter lane that goes up to where the elevator [the equipment in question] is, so I went – I parked earlier in the morning, that morning at 7 o’clock, I’d left a bin in the lane so I went and moved it closer to where I would have started the job but they had a barrier tape across so I moved it closer to where the tape was so that it’d be – so when they finished the work I could put it on the stand from there.
That barrier tape’s a sign that there’s work being done on the machine, isn’t it?
What did you do then? You went back to the control panel?
I did, yes.
You didn’t approach Scott at all?
No, I didn’t, no.
You walked across to the panel and what did you do then?
Well, I thought they were – because they were packing the tools up, I thought they’d finished the work so then I was – yes, I removed the tag from the – the live testing tag and the – his person in control tag.
You didn’t approach Scott and ask him if he’d finished?
Well, no, I naturally thought, because he was packing the tools away, that he had finished the work.
You said in your statement that – sorry, I’ll withdraw that. Is it common practice for you to walk up and take tags off a machine?
You know, don’t you, that if something is tagged out there’s a safety reason why it would be tagged out?
You said in your statement that you’d never seen a live testing statement before?
No. I can’t recall, no.
No. You thought you could just pull it off and start the machine did you?
Well, I’ve never actually been trained with - in a live testing.
You see a - - -? This is the first time I’ve ever seen one. You see a live testing statement that you say you’ve never seen before on a machine on top of the start button and you don’t make any inquiry about what it’s doing there?
Didn’t call out to Mr Moore and say “Can I take this off?” did you?
You didn’t read it did you?
I did read it, yes.”
 The final piece of transcript I refer to in relation to what happened is lengthy but bears setting out in full 12:
“MS ZEITZ: Yes. As I understand it, your evidence is that you pulled this live testing statement off the machine, off the control panel?
You didn’t check underneath it to see if there’s anything else there?
No, I didn’t because I didn’t expect something to be under it.
You hadn’t been told by Mr Moore that the job was being handed back, had you?
You hadn’t been told by Mr Moore that he’d removed his tags, had you?
You hadn’t asked Mr Moore if he’d removed his tags, had you?
You hadn’t asked him if the machine was ready to be started up, had you?
Well, he said it would be finished in about 10 minutes.
You went off for 10 minutes and decided he must have finished the job, is that your evidence?
Well, I - between the time of him saying it would be 10 minutes, I went and moved the bin closer to where I needed to be. That was the time.
Yes, and you came back - and your evidence is that you came back and decided that 10 minutes had passed so you’d start the machine?
Well, he was packing his tools away so I naturally thought he’d finished the job.
Your earlier evidence is you understand safety’s an important part of the job?
Yes, I do.
Yet you didn’t think it was important enough to ask Mr Moore whether it was safe to start the machine?
I didn’t ask him, no, that time.
Did you ask him where his co-worker was?
Well, I didn’t know where his co-worker was at the time.
Didn’t look for him, did you?
Well, he could have been anywhere. He could have wandered off and done another job.
That’s right, or he could have been up in the top of the tower with his clothes tangled up in a conveyor that you’d just started, couldn’t he?
He could have been, yes.
Seriously injured, couldn’t he?
There could have been an injury, yes.
You didn’t think that might be a risk that you might have been running by starting the machine up?
Well, I’ve - it could have been a risk, yes.
But you decided to do it anyway, is that your evidence?
Well, when you see guys packing their tools up and saying they’re nearly finished, 70 percent of the time means that job was finished so that - - -
The other 30 percent of the time it’s okay to start a machine when it’s dangerous, is that your evidence?
No, it’s not.
Well your evidence – in answer to the question I just asked you, you said 70 percent of the time it means they’ve finished the job when you see them packing?
Well, usually they say “We’ve finished the job” and that’s - - -
Mr Moore hadn’t said that to you, had he?
You hadn’t asked him the question?
When you see something that says “live testing” on the piece of paper, what do you think that means?
Means they’re doing live testing.
Why do you think when it says live testing that means you can start the machine up?
Well, this is the first time in my whole life that I’ve actually had anything to do with live testing so I wasn’t totally – I’d been trained but this was the first example that I’d ever had of being involved in it.
If you’ve not done something before and not seen it before, you think its okay to start a machine?
No, I don’t.
Well your evidence is you’d never seen a live testing form before so you thought - - -?
I have actually seen one but this is the first time I’d actually been involved in my job where it was - live testing was an issue.
You weren’t involved in the job though were you, Mr Brain?
No, I wasn’t involved in it, no.
You’ve interfered in the job by going up to a machine that has a document on it that you say you don’t know what it means, is that right?
Well, I’d been trained for – to read a live testing tag but I’ve never actually been involved with work involving live testing. I’d been shown a tag before but I’ve never – this is the first time – it’s like starting a car the first time. In a similar – whatever you do the first time, it’s – the second time it’s a lot easier. You’ve done it once before.
Your evidence is, Mr Brain that you didn’t know what the live testing certificate was for. That’s correct, isn’t it?
Your evidence now is that you’ve never had anything to do with a live testing process before?
No, I haven’t.
Right. Why did you think that you could go and remove something like that from the machine, from the control panel, when, on your own evidence, you didn’t know why it was there?
That would be right, yes.
Why did you do it?
Well, I naturally thought he’d finished the work. He was packing up and getting ready to leave the job.
Is your evidence that if you think it’s safe to start something, it’s okay to go right ahead no matter what’s on the machine?
No, it’s not.
Scott called out to you, didn’t he?
He did, yes.
That was after he’d hit the emergency stop button, wasn’t it?
It could have – I wasn’t - - -
You didn’t stop the machine, did you?
No, he had a stop button near where he was, yes.
Yes, and that was because Jordan was up on the top, wasn’t it, where the elevator was starting?
Well, I didn’t know where Jordan was at the time when it happened, no.
THE DEPUTY PRESIDENT: But did you later find out that that’s where he was?
Well - - -
That he was up the top?
I found out later that he was at the top, not at that particular time I didn’t know where he was. He could have been anywhere.
Did you know that it was more likely than not that Scott would be working with somebody?
Well, he was working with someone.
You knew - - -?
He was working with a contractor, yes. There was two guys at the bottom and Jordan was up – I found out later was at the top.
But you knew there would be two around somewhere?
MS ZEITZ: Scott then asked you to leave the area, didn’t he?
He did, yes.
He was pretty cross, wasn’t he?
He was, yes.
Did you say anything to him at that time?
Well, I was concerned myself because I knew I’d done something wrong. I didn’t know how – at the time, I didn’t know how serious it was. I knew it was quite serious but I – not totally how serious it was going to be.
You’ve said in your evidence that when you’ve assisted fitters in the past, they’ve taken any tags off the machine and said words to the effect “It’s good to go”. That’s right, isn’t it?
They have done, yes, they have done.
That’s not what happened here though, is it?
No, it’s not.
When you approached the machine, knowing that Scott was still there and he hadn’t handed over to you, why didn’t you check to see where his tag was?
Well, I just naturally thought there was only one. Because I couldn’t see his tag, I just thought the live testing statement was the one. I
Your evidence is that when you’ve assisted fitters in the past or been around fitters, which is what you were doing on this occasion, and they’ve concluded their maintenance work on machinery, “They have taken any tags off the machine and said to me words to the effect “It’s good to go”?
On this occasion, none of that happened so why didn’t you look for the tag, for Scott’s tag? He was still there?
Because sometimes they put live testing tag or whatever without putting their own tag on so I naturally thought he’d – I did not see his tag until I removed until I’ve removed both the tags, I didn’t know his tag was on there. Because the live testings tag was bigger than his own personal tag.
You realised his tag was on there when you took the tag when you took the live testing off, is that your evidence?
When I’ve removed – I removed – but they both came off at the same time and once I’ve removed both at the same – I found his tag behind it but at the time I didn’t know because – yes.
You’ve just said you’ve removed them both at the same time and you’ve seen his tag there?
Why did you proceed to turn the machine back on? Because I wanted to check that it was okay so when I went - - -
That wasn’t your job though, was it, Mr Brain? That was Scott’s job to check the machine was operational, wasn’t it?
Yes, it was.
Then you were called into a meeting?
Yes. My immediate supervisor rang and said there was a meeting.
Yes, and you were called into that meeting and I think Mr Archer was there?
Mr Archer was there, yes.
Mr Black was there?
Yes, Mr Black was there.
Mr Black’s one of the safety people on the site?
He’s safety – he’s the chief or head safety training.
Mr Mudge was there?
No, not at that initial meeting, no.
No. I think Mr Moore came in during that meeting or was there for a short time, is that right?
Yes, he came and explained and left.
Yes, and in that meeting, you accepted that you had removed the tags and started the machine, didn’t you?
You didn’t, at any time, say that you didn’t know that his tag, that Scott’s own tag, was there, did you?
At that time, the explanation you gave was that you wanted to make sure the machine was working for the following day?
That is correct, yes.
It was after that meeting that you were – sorry, I withdraw that. During that meeting, Mr Moore indicated that he was quite upset by what had happened, didn’t he?
He was, yes.
Because he was concerned about what could have happened to Jordan?
Did you offer any apology or anything else in that meeting?
Well, I was – yes, concerned I was – I knew it was – yes, I was concerned about what happened, yes, I was.
You, at no stage, said – sorry, I withdraw that. You, at no stage, acknowledged that you could have caused Jordan to have a serious injury, did you?
Well, I didn’t because at the time I didn’t know where he was. I – when it happened, I didn’t know – when the incident happened, I didn’t know where he was so that’s why – because I didn’t know where he was – if I’d have known what had happened, like – then I would have been concerned but I thought he’d gone back to the workshop.
Mr Brain, do you understand – sorry, I withdraw that. Mr Brain, I want you to think about that answer because what I’m hearing you say, and I’d like you to comment on it, is that you didn’t feel you needed to make any inquiry about where Jordan was at all?
Well, I didn’t know until Scott Moore had told me that he was up on – above the elevator, so - - -
You’ve come back – sorry, you’ve come back into the area, you’ve walked up to a machine that’s got, at least on your evidence, most recent, the tag and the live testing certificate, or statement, and you haven’t thought that you should make any inquiry of anybody about where Jordan was?
Well, I didn’t know where he was so I should’ve done, I suppose, but because I didn’t think he was around the area, I didn’t ask.
THE DEPUTY PRESIDENT: What made you think he wasn’t in the area?
Well, sometimes there’s two fitters that work together and one stays on the job and one goes off to get some tools or to do another job or whatever so I didn’t know that he was still in the area so that’s – until I was told.
But you didn’t ask anybody?
No, not at that - - -
You didn’t look?
You didn’t look for anybody else either?
But you knew they weren’t in pairs? Well at least you knew they were working in pairs that day?
Thanks, Ms Zeitz.
MS ZEITZ: Thank you. You knew that it was pretty serious when you met with Mr Archer and Mr Black, didn’t you?
Then Mr Mudge approached you and said you were being stood down?
That was later. That was after the initial meeting, yes.
He explained to you why you were being stood down, didn’t he?
He did, yes.
That they were going to conduct an investigation?
Because it was a serious safety breach from their perspective?
 I should also refer to evidence relating to the availability of maintenance workers on the weekend. The Applicant sought to justify his actions by saying that he acted as he did to ensure work could start straight away. He also sought to point to the fact that maintenance workers were harder to get over the weekend. In combination the explanation was to the effect that the Applicant acted as he did solely for the benefit of the Respondent.
 A valid reason is one which is sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced will not be a valid reason. The reason must be valid in the context of the employee’s conduct. 13
 The reason relied on by the Respondent for terminating the employment which arises out of the factual matrix I have set out above is: 14
21.1 The Applicant engaged in a serious safety breach in circumstances where:
21.1.1 He had not been involved in the planning for or performance of the maintenance tasks that were being done.
21.1.2 He mad no inquiry of a maintenance employee in the vicinity at the time prior to starting up the machinery.
21.1.3 He removed a Personal Identification Tag and Live Testing Statement and by his actions was indifferent to their purpose and presence.
21.1.4 He had no basis upon which to conclude that the maintenance task had finished and that all persons engaged in that task had finished and left their work area.
21.1.5 He offered no reason for his conduct other than that he wished to ensure that the machinery was working as it was in his interests to do so.
21.1.6 His assertion that he acted for the benefit of the Respondent was and remains without basis in fact.
 The Applicant however submits that: 15
30. Based on the above principles, it is submitted that, for the reasons that follow, there is no valid reason for dismissal:
(a) The two formal notifications the Applicant received in 2003, even when considered together, amount to two minor errors of judgment in some 37 years of employment. Given their age, those two incidents ought to be given little if any weight by the Commission. They amount to isolated lapses of concentration in a period of service of extraordinary length.
(b) In Applicants period of employment, the Applicant had worked and operated thousands of trucks, machinery and equipment. Prior to the relevant incident, the Applicant consistently followed procedure and there is no evidence to suggest the Applicant disregarded his or others safety during his employment
(c) In the context of the behaviour occurring, the interaction of persons, the circumstances and the events which lead up to the Applicant removing the Tags, the Applicants actions should be considered as a momentary error of judgement on his behalf. There was no predetermination to his conduct and nor did he wilfully flour procedure. As soon as he realised his mistake, he took appropriate corrective action.
(d) Notwithstanding the above, the Applicant accepted responsibility for incident and recognised his mistake. There is no suggestion of any dishonesty or evasiveness s in this matter.
(e) There has been no suggestion that any applicable policy of the Respondent mandated termination in the circumstances of this case. The Respondent thereby maintained a discretion in relation to its decision, which would properly exercised by taking into account the surrounding circumstances.
 These submissions are made in the background of a submission that I must find that because the conduct amounts to misconduct the behaviour involves more than mere negligence, error of judgment or innocent mistake. Alternatively the Applicant submits that the conduct did not justify termination and in that way the reason is not valid.
 I find that the Applicant, for his own reasons – so he could start work the next day and because he believed maintenance workers were hard to get over the weekend – determined that he would test the machine in circumstances where:
a He knew that the area in which the equipment was located was marked off by barrier tape;
b He knew that there was at least the Live Testing Statement still on the equipment. Contrary to counsel for the Applicants submissions the Applicant had in fact been trained in live testing. 16 I should here mention the issue of the Applicants knowledge of the Person in Control tag. It seems to have been assumed that had the Applicant been aware of that tag he would have acted differently. The difficulty I have is that the Applicant has given no evidence about that. While the Applicants counsel submitted that the Applicant would have known he had to contact the person in charge (Mr Moore) had he seen that tag there is simply no evidence that the Applicant would have done any such thing. Indeed the burden of the evidence is that the Applicant had already seen the person in charge who told him they would be finished in 10 minutes. I have no evidence that the Applicant would have revisited the issue with Mr Moore even had he seen a Person in Control tag. I am not prepared to draw an inference he would have. It is a very large issue and had the Applicant given that evidence then he would no doubt have been cross examined about it. Indeed if I were to draw any inferences it may be that the failure of the applicant to give evidence about what he would have done had he seen the tag is significant. I also consider significant that the training the Applicant accepts he had in Live Testing17 specifies that the Live Testing Statement is used in conjunction with a Person in Control tag. Arguably therefore he should have been aware there would be a Person in Control tag with the Live Testing Statement.
c That he knew that if a piece of equipment was tagged out it was for a safety reason;
d He knew the equipment had not been handed back by the maintenance workers;
e He did not in fact know that the maintenance workers had finished;
f He did not ask Mr Moore who was only 4 to 6 meters away from the Applicant at the time 18 if the work had finished;
g He had no role to play in the maintenance of the machine and had no authority to touch the machine;
h He thought that the work had finished based on the indication that Mr Moore had given him that work would be completed in 10 minutes but did not check that it had in fact been completed;
i There was in fact no imperative for the Applicant to test the machine before it was handed back. I accept the evidence of Mr Mudge that maintenance workers would be available if necessary to carry out any work required over the weekend. 19 Indeed it transpired that if the equipment was not operational over the weekend then repair of it would not be regarded as a priority by the Respondent. This in my view is relevant to the reasonableness of the explanation that the Applicant wanted to start work as soon as he could and that it was for the benefit of the Respondent.
j He failed to make any enquires as the whereabouts of the other maintenance workers. It transpired that one of the maintenance workers was in fact potentially in harm’s way. The worker was working on the conveyor. He was shortening belts. The cover over the belts had been removed. 20 There was the potential that the worker could have become trapped in the belts.
 In essence the Applicant took it upon himself to ignore tags on the equipment, to rely on a time estimate as to when the work would be finished, failed to enquire whether work had in fact finished and to energise the equipment when he had no authority to do so. His conduct created a potentially dangerous situation, especially for the person working on the conveyor belts. In my opinion there was a valid reason for termination.
 I should say something about a submission the Applicant made to the effect that it was incumbent upon Mr Moore to ensure that the Applicant was not in the area whilst work was continuing. The Applicant relied on the Isolation Policy which provides that the area should be clear of people. 21 He argued that this applied even when live testing was not actually occurring. That is, at all times that the maintenance was carried out the area was to remain clear of all people not carrying out the maintenance work. In this way it is submitted, because Mr Moore did not send the Applicant away the Respondent permitted the incident to occur.
 I do not accept that the procedure applied where live testing is not in fact occurring. The protocol in my view applies when the equipment is to be energised. Otherwise a potentially large area of a workplace may be off limits because the machine being worked on happens to be in the corner of a larger area and the whole area is to be clear of workers. More importantly the safety issue arises when live testing is being carried out. It is in respect to the energising of the machine that the protocol applies.
 Accordingly, I do not accept the submission that Mr Moore was obliged to ensure the Applicant was away from the general area when no live testing was to be carried out.
 In light of the foregoing I find there was a valid reason for termination.
 I am however obliged to consider the other matters set out in s 387 of the Act.
 The Applicant submits that the precise reasons for the decision to terminate his employment were not properly put to him and accordingly he has been denied procedural fairness.
 The gravamen of the Applicants submission was that he was not given adequate material before a meeting which occurred on 2 May 2017 to discuss the matter.
 The background to this is that on the day of the incident there was a meeting in the purification workshop. Mr Archer and Mr Black (who did not give evidence) were present. Mr Moore was called in. the following exchange occurred 22
(a) Scott Moore: ‘Peter started the elevator without checking with me about removing the tags’
(b) SM: ‘I’m upset about what Peter did’
(c) Peter Brain: ‘I thought the job had finished and it was ok to start up the elevator’
(d) SA: ‘Why did you do it’
(e) PB: ‘I wanted to make sure it was ok to use and was working properly.
(f) PB: ‘On Saturday there would be the only a few shift fitters and I didn’t want it not to start’
(g) SA: ‘You have to go see Adrian Mudge (Superintendent of Roast Acid and Wharf) after this.’
 Immediately afterwards the Applicant went to see Mr Mudge. He was then stood down from work.
 A more formal meeting was held on 2 May 2017. It is this meeting about which the Applicant complains in the sense that he says he had insufficient information about the allegations to properly defend himself.
 From the evidence I find that:
a. On 21 April 2017 the Applicant knew he had been stood down because he had started the equipment in circumstances where it was alleged he should not have done so in that he had removed the tags without permission of Mr Moore;
b. On 27 April 2017 the Applicant was given a letter dated 21 April 2017 23 by Mr Archer.24 The letter confirms that the Applicant was stood down for removing a Person in Control tag from the equipment, that an investigation would be carried out and that he would have an opportunity to put his case. He was also told of his right to have representation. I should mention that the Applicants counsel asked me to draw an inference that the Applicant was not given the letter at all. I said at the hearing I was not prepared to draw the inference in the circumstances. Those circumstances are that the Applicant did not give evidence he had not received the letter, either in his statement or in evidence at the hearing, and that it was not put to Mr Archer that he had not given the Applicant the letter. The former aspect of the matter is far more significant. In circumstances where a witness is called who is able to give evidence on an issue such as this and does not do so no such inference such as is sought here should be drawn;
c. On 1 May 2017 Mr Archer spoke to the Applicant about the meeting to be held on 2 May 2017. 25 Whilst is was put to Mr Archer that he did not speak about the forthcoming meeting I have no reason not to accept Mr Archers evidence. He had received an email26 asking that, when he contacted the Applicant he should confirm he meeting for the next day, offer the opportunity of a support person, advise where the meeting was to be held, who would be at the meeting, advise the reason for the meeting and the nature of the meeting. Mr Archer rang the Applicant (it was not put to him that he had not) on 1 May 2017 as the email noted he would. It makes sense that part (at least) of the reason for the call was to relate the matters in the email to the Applicant.
 In light of the above I find the Applicant was informed of the reasons which led to the termination. The factual matrix (removing the tags and starting the equipment) was not complicated. There is no reason to suspect that what he was told and what was in the letter was not sufficient to put the Applicant on notice about what was to be discussed and what the employer was considering. However there was, in my view a failure to give the Applicant an opportunity to make proper representations about sanction. I consider this further below.
 This section relates to responding to issues regarding the capacity and conduct of the Applicant. It is submitted that the Applicant was not provided with specific allegations. In my view he was provided with sufficient information. As set out above the issue in question was simple – why did he remove the tags and start the machine. He was well aware of the allegation. He made much about not being aware he had removed the Person in Control tag as well as the Live Testing Statement. However he had accepted that he should not have started the equipment and that he had done the wrong thing 27. I reiterate that his training was such that he should have been aware that the Person in Control tag would accompany the Live Testing Statement.
 In so far as what had occurred is concerned I find that there was a sufficient opportunity to respond. While it may be (as the Applicant submitted) he did not have specific policies or procedures before him, given that he accepted he knew what he had done was wrong and given his evidence set out above 28 he said all he could really say about what happened.
 The Applicants counsel in closing on this issue said: 29
MR GUNADASA: If Mr Brain had a proper opportunity to respond, perhaps in writing, Mr Brain would have been able to identify that he did not individually remove both tags. He would have had time to go through that isolation standard and identify that he has not actually been trained in it, and those are only in response to the fact that he wasn’t provided with that material towards the actual conduct on the day.
 Setting aside that the submission appears to be hypothetical, in my view it is clear that his training included the fact that a Person in Control tag is used with a Live Testing Statement 30 and so he would not in fact have been able to add anything of significance relating to his conduct as affected by training. He also knew that the practice is that the maintenance crew hand back equipment after maintenance and he knew that had not occurred. This is not a case of complicated facts about which there may be significant dispute. Indeed the facts relating to what the Applicant did are not really in dispute.
 The Applicant makes no submissions in respect to this matter.
 The Applicant submits that there are no relevant prior warnings. I agree.
 At its highest the Respondent says that the while the Applicant “had not been formally warned with respect to work performance or breach of safety procedures, he had been informally counselled previously regarding his behaviour and in relation (sic) incidents regarding the safe operation of machinery”. 31
 These matters occurred in 2003, some 14 years prior to these events. There were no warnings. They related to conduct materially different to the present conduct under consideration. In my opinion the previous counselling is irrelevant.
 In my view the size of the employer is such that it can be expected that it will follow its procedures meticulously. The size of the employer should therefore weigh in favour of the Applicant in that the Respondent should be able to carry out its workplace relations obligations in a correct way. The Applicant points out procedural deficiencies including the failure of the Respondent to apprehend that the Applicant was having problems understanding some of the questions at the 2 May 2017 meeting. It transpires that the difficulty the Applicant had was in respect to understanding questions related to mitigating circumstances. 32 No other particular aspects of the questioning were identified as significant and in any event Mr Reeves who attended with the Applicant at the meeting rephrased questions as appropriate.
 For reasons I deal with below the issue of mitigation factors and the Respondents failure to properly deal with the matter of sanction is significant.
 A very significant matter is that of the Applicant having an opportunity to make submissions in relation to sanction.
 It is first necessary to point out that the reference to mitigating circumstances at the 2 May meeting was not in relation to sanction but conduct. Under cross examination Ms Wade, a Human Resources Officer of the Respondent who was responsible for running the 2 May 2017 meeting had the following exchange 33:
Well, the question put to Mr Brain about mitigating circumstances?
I don’t know if I’d say he found the question difficult to answer. My interpretation was he didn’t know what mitigating circumstances meant.
Okay. Now, providing a response to a mitigating circumstances question, is that an important question in a disciplinary-type meeting?
It is, which is why when we interpreted Mr Brain to not understand what, “mitigating circumstances”, meant, we then followed on with explaining to him that it meant the reasons why this incident occurred and that they could be anything ranging from work or personal - I think Adrian also gave an example of a mitigating circumstance for a reason why, being time pressure, and we also confirmed with Mr Brain at the time as to whether he then understood what mitigating circumstances or reasons why meant and he did and I believe Mr Reeves also assisted him in understanding what that meant.
After you explained that to him, did Mr Brain provide any mitigating circumstances?
I believe Mr Brain - if I go back to my notes - the mitigating circumstances that were provided were around the equipment not being locked out or isolated and at the time when we spoke around reasons why I think Mr Reeves mentioned that Mr Brain was on medication, to which Mr Brain responded, “That has nothing to do with this.” That’s all I can recall around mitigating circumstances.
Now, the mitigating circumstances question, that was only in relation to the incident, is that right?
Into the incident and the actions that Mr Brain took.
Was there anything put to Mr Brain about any mitigating circumstances about why his employment should not be terminated?
I’m not sure, exactly. I don’t recall.
Do your notes say anything about a question like that or an answer like that? Around why he shouldn’t be terminated?
 Later in an exchange I had with Ms Wade she said 34:
You didn’t send the applicant a show-cause letter in respect of section [this should be sanction], did you?
We didn’t send a show-cause letter, no.
At any stage?
So the applicant didn’t get a chance to make a submission to you about the sanction it was proposed to impose on him?
As we thought we were clear in the first meeting around the fact that we were considering termination and - - -
Yes, but (indistinct) was considering that. You were considering it?
I agree, at that point we were considering termination.
You didn’t ask him about any mitigating factors in respect of sanction. You only asked him about any mitigating factors in respect of the incident?
So you would agree, would you that he never had a chance to make any submissions about the particular sanction that was imposed upon him? Being termination of employment?
I can’t recall in that meeting if we actually specifically asked him that.
Well - - -?
But I understand what you’re saying - it would have been the potential of it at that point anyway.
But you didn’t at any time - that’s what I’m trying to get at?
Is that right?
It isn’t right?
Sorry, yes - that is right.
 What then occurred is that the Respondent considered the information they had from the Applicant arising out of the 2 May 2017 meeting and proceeded to terminate the Applicants employment. It is clear that the Applicant was never given a chance to put anything in mitigation of sanction. In my view this is a significant flaw.
 The Respondent submitted that notwithstanding this failure the conduct was so serious as to justify termination whatever the Applicant might have said. 35 It is to be noted that Mr Reeves took part in some discussions about sanction.36 However, I do not know what Mr Reeves said about the Applicants current situation.
 I do not regard the Applicants conduct as so serious at to justify termination without specifically hearing from the Applicant about sanction. I agree the conduct was serious. However, I do not regard it as misconduct justifying termination of itself. The better description of the matter is perhaps operational negligence.
 In BlueScope Steel Limited v Sirijovski 37 the Full Bench was dealing with an employee of some 35 years standing who had been in the same employment his entire working life. He had been guilty of a serious breach which resulted in significant loss to the company. He had also been given a first and final warning in relation to a safety breach within 6 months of the subject incident. The Full Bench said this:
‘ In all the circumstances, we recognise that the Company had good and adequate reasons to terminate the employment of the applicant. The incident on 21 May 2013 amounted to a serious performance failure on the part of the applicant which resulted in significant loss to the Company. The incident was the subject of a full investigation by the Company and no satisfactory explanation was provided for the applicant’s poor performance. The incident occurred within six months of the applicant being given a first and final warning by the Company in relation to a serious safety breach.
 However we also recognise that, having regard in particular to the applicant’s long and satisfactory period of service and the impact of the dismissal upon him, the dismissal might be considered to be harsh. The applicant had been employed by the Company or its predecessors for 35 years with no prior warnings in relation to his operational competency. He was 53 years old and had spent his entire working life at the Steelworks. The impact of the termination on the applicant and his family has been severe and there may be few prospects for him to find alternative employment in the Wollongong area. It is also relevant that as a result of the dismissal the applicant missed the opportunity to be selected for retrenchment and receive a redundancy package from the Company. In this regard we note and adopt the Commissioner’s finding that the dismissal was not motivated by any purpose on the part of the Company to avoid redundancy obligations or payments. We also note that there is no certainty that the applicant would have been retrenched and provided with a redundancy package by the Company
 On balance, and having regard to all the relevant factors referred to in s.387, we have come to the conclusion that the termination of the applicant’s employment was harsh, unjust or unreasonable.’
 In the present case had the Applicant been given an opportunity he would have been able to give further information in respect to, and emphasise that:
a. He had worked with the Respondent and its predecessors for 37 years;
b. He had no formal warnings for safety issues, and nothing of note in performance save for the two incidents which occurred within a few weeks of each other 14 years before;
c. He would in all likelihood find it impossible to obtain alternative work in Hobart given his skill set;
d. He has significant financial obligations;
e. The issue of trust and confidence.
 I have decided that the termination of the employment was harsh. It was incumbent on the Respondent to hear from the Applicant before imposing sanction. The conduct of itself is not sufficiently serious to justify dismissal without more.
 Re-instatement is the primary remedy. The Respondent submitted however that reinstatement was inappropriate because it had lost trust and confidence in the Applicant. This is on the basis that, as asserted by Ms Wade 38:
The reasons around why we determined we had lost confidence in Mr Brain’s ability to operate safely is because I guess in this instance his behaviour knowingly endangered others. He allowed others to be put into potentially life-threatening situation. He deliberately breached a critical safety procedure on site, a life-saving rule and they’ve in place to protect lives. He didn’t acknowledge, I guess, the seriousness of the position he had put the maintainers in. The mitigating circumstances that he provided to us I don’t think explained the seriousness of his behaviour and his actions. We have a duty of care to provide a safe workplace for others and because of those reasons we had lost confidence in his ability to be able to operate safely.
 In my view the explanation rather overstates the situation. Firstly I do not accept that the Applicant knowingly endangered others. In fact the effect of his evidence is that he did not know where Mr Moore’s offsider was. He knew where Mr Moore was and he was not in danger. Secondly there is insufficient acknowledgement of the very long service the Applicant had provided to the Respondent. Thirdly there is no acknowledgment of the essentially very good record while the Applicant had been working for the Respondent and its predecessors.
 I also note the evidence of Mr Mudge in this regard. He said:
Yes, okay. It’s to do with possibly a number of factors, trust and confidence?
Yes. Of course it is, yes.
What would those factors be?
It’s the way someone conducts themselves at work. You know, it’s the work ethic. It’s the way they conduct themselves. It’s their behaviours. There are a myriad of things that we look at.
How has Mr Brain conducted himself at the workplace?
Peter has been a solid worker. He turns up, does what’s required.
You said previously that he is a hard worker, so wouldn’t he have a good work ethic?
Yes, his work ethic is fine.
So based on that criteria, wouldn’t you have substantial trust and confidence in Mr Brain?
Yes, in the role that he did. 39
 I do not accept that the relationship between the Applicant and the respondent has broken down to such an extent that reinstatement is not appropriate. In reality the Applicant was a good worker. He has, over the course of 37 years committed one serious disciplinary breach of policy and protocol. He was terminated because of the seriousness with which the Respondent regarded the breach. The evidence of the deliberations in reaching a decision on sanction is scant. It is set out in an email to the ultimate decision maker Mr Curtis dated 5 May 2017 40. The decision to terminate was on the basis that the Respondent did not think the Applicant could work safely in any position within the business. But they never asked the Applicant about that. I am asked to accept that the trust and confidence built up over a very long time has been destroyed by one incident of a safety breach. I do not. No submissions were made by the Respondent that, other than the trust and confidence issue, the Applicant could not be reinstated.
 Because of the matters I have set out above I propose to order reinstatement.
 I am required to consider the issue of lost pay while the Applicant has not been at work. The Applicant submits that he should be paid for the whole of the time he was off work. Notwithstanding the order for reinstatement the conduct of the Applicant is such that it may be he should not have the benefit of an order to repay the full amount of lost pay. He was guilty of a relatively serious breach of safety procedures. His conduct was intentional.
 However I wish to hear from the parties before deciding this issue.
Mr I Gunadasa for the Applicant
Ms S Zeitz for the Respondent
11 and 12
1 Transcript PN 1413 to 1420
2 Exhibit A1
3 Exhibit A1 at paragraphs 46 to 78
4 Exhibit A1 paragraph 49
5 Transcript PN 131
6 Exhibit R6 paragraph 22
7 Exhibit A1 paragraph 58
8 A1 paragraph 71
9 A1 paragraphs 76, 89(d)
10 Transcript PN 126-127
11 Transcript PN 133 - 146
12 Transcript PN 217 - 296
13 Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371
14 Respondents submissions.
15 Applicants submissions
16 Transcript PN 238
17 In this regard there was something sought to be made by the fact an assessor’s signature did not appear on the relevant assessment booklet. I find that the Applicant, as he says, had the relevant training.
18 A1 paragraph 72
19 Transcript PN 1649 - 1653
20 Transcript PN 1398 - 1399
21 R3 statement of Rebecca Wade p 73
22 Exhibit A1 Statement of Applicant paragraph 80
23 The latter is annexure to R3 Statement of Rebecca Wade RAW 4
24 Transcript PN 1126 - 1131
25 Transcript PN 1132 - 1141
26 Exhibit R3 attachment RAW 2
27 A1 Applicants statement at paragraph 89 (c)
28 Paragraph 21 above
29 Transcript PN 1909
30 Exhibit R3 attachment RAW 13
31 Respondents submissions paragraph 29
32 Exhibit A2 Statement of Marshall Reeves paragraph 16 (f) and A1 at paragraph (f) and (g).
33 Transcript PN 839 - 844
34 Transcript PN 944 - 954
35 Transcript PN 2057 – 2059; 2065 - 2076
36 A2 paragraph 18
37  FWCFB 2593
38 Transcript PN 868
39 Transcript PN 1672 - 1676
40 Exhibit R3 attachment RAW 10
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