"[The worker] claims that he tried to push the floating material back down the drain with his hands and used his feet to act like a plunger. I note that [he] wears rubber thongs when he showers. [He] allegedly stated ... that it looked like faeces. When leaving the shower block with his colleague, [he] is claimed to have said to his colleagues 'look at this shit'."
The man's supervisor, operations manager Victoria Collins, told Fair Work she had formed the view that he had defecated in the shower on the basis that it was clean when he had entered the area, that he had used his hands and feet to try to unblock the drain, that when he failed to do so he continued his shower despite there being faeces in the water, and that he did not report the incident but simply went home.
She said it was not the normal behaviour of someone who had to shower in such conditions, given he could have moved showers but chose to stay in the polluted shower, despite the worker saying he was wearing thongs and felt safe as a result.
"I would say any employee proved to do that needs to be sacked," Ms Collins told Fair Work. "I have other members who also work in that industry and they have a right to a health and safe workplace and environment so I think that if a person did that sort of stuff my main concern will be about the rest of the workforce."
Mr Riordan, however, said while he acknowledged Ms Collins' reasoning in reaching her conclusions about the identity of the shower sh*tter, it was not certain the worker was the culprit.
"An accusation or finding on a behavioural issue such as defecating in a shower has widespread and ongoing ramifications for the accused individual," he said. "It is fair to say that any positive finding would stamp [him] with an unwelcomed level of public notoriety.
"Whilst the investigation conducted by Ms Collins was that the substance that was floating in the water was human faeces, there is no proof that this material did not float out of the uncovered drain.
"It may have been that the employee who used this shower on the shift before [the worker] was the perpetrator of this act. I note that none of the other three workers who were in the showers with [him] were called as witnesses in the proceedings."
Mr Riordan said the standard of proof in unfair dismissal cases was based on the "balance of probabilities". "Whilst the offending material may have in fact belonged to [the worker], I do not accept that [he] possesses the human qualities, or lack thereof, to deliberately defecate in the shower," he said.
"It is also possible that the material floated out of the drain as described above. As a result, I am not satisfied that the shower incident provided BlueScope with a valid reason to terminate [his] employment."
Mr Riordan described the man's timekeeping, however, as "appalling", finding he "deliberately and systematically left the Steelworks, without authorisation on the overwhelming majority of occasions, to conduct his own personal affairs", including to assist with his home renovations.
"Not only is such behaviour fraudulent, but it creates serious safety issues for [his] work colleagues who were unaware of his non-attendance," he said.
"In a hazardous work location like the coke plant, I find [his] actions in deliberately contravening the 'Leaving Work Early Policy' falls within the boundaries of serious misconduct.
"I am satisfied that [his] summary dismissal was an appropriate and proportionate penalty for his conduct. [The] termination was not harsh, unjust or unreasonable."
