Recall on cards for zinc worker

A WORKER sacked last year is likely to return to his old job after the Fair Work Commission took the rare step of ordering he be reinstated.

Peter Brain, 58, who has been employed at Nyrstar zinc works and its predecessors for the past 37 years, was sacked in May last year because of a safety breach.

“I did the wrong thing. I took a safety tag off,” Mr Brain said. “I admit what I did was wrong, but the process and the way it was all done wasn’t fair.”

The commission’s deputy president David Barclay, in a decision handed down on Friday, found there was a valid reason for Mr Brain’s employment to be terminated but he also found the termination was harsh.

“The applicant was guilty of a serious safety breach,” Mr Barclay said.

“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.”

Mr Barclay said the company failed to seek a response from Mr Brain about the sanction.

“Accordingly, he was denied procedural fairness in this regard,” he said.

Mr Barclay said it was unlikely Mr Brain would be able to find another job 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.”

He also said there had been no acknowledgment from the company of Mr Brain’s “essentially very good record” while the applicant had been working for the respondent and its predecessors.

Mr Brain’s lawyer, Indi Gunadasa, said it was rare for workers making unfair dismissal claims to be reinstated.

“His [Mr Brain’s] managers said that he was a great worker and that’s one of the reasons why the commission has proposed an order for reinstatement, which is very rare in unfair dismissal cases,” Mr Gunadasa said.

Nyrstar is able to appeal the decision, but Mr Gunadasa said it was likely Mr Brain would return to his job.

Mr Barclay will also hear submissions from Mr Brain and Nyrstar about whether Mr Brain should be paid compensation.

A company spokeswoman said Nyrstar Hobart was considering the decision.

“Nyrstar places the utmost priority on the health and safety of its employees and will not compromise on that commitment,” she said.

According to statistics from the Fair Work Commission from the April quarter of last year, the odds of reinstatement were one in 845 and the odds of being awarded compensation were one in 130.

Mr Brain said he was keen to return to his job.

“I’ve had 10 months off, I am pretty keen to go back. I started when I was 20 and I’m 58 so I’ve been there a long time. I expected to be there until I retired,” he said.

Mr Brain said the dismissal hit him hard.

“I was pretty low for a month or two. I didn’t come out of my house much. I didn’t want anyone to see me.”