Australian Rail, Tram and Bus Industry Union v NSW Trains

[2016] FWC 1553

[2016] FWC 1553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Australian Rail, Tram and Bus Industry Union
v
NSW Trains
(C2015/4704)

DEPUTY PRESIDENT SAMS SYDNEY, 11 MARCH 2016

Application to have the Commission deal with a dispute – safeworking incident – admission of wrongdoing – investigation into the incident – disciplinary investigation – investigations take eleven months – unexplained delays in investigations – investigations not complex – further disciplinary penalty imposed on Drivers – emotional impact on Drivers – significant financial penalty due to stand down – relevant matters not given appropriate weight – unreasonable to impose further financial penalties – cautions and reprimand appropriate – matter concluded.

BACKGROUND
[1] On 27 June 2014, two Train Drivers, Mr Keith Atkinson and Mr Elton Lukehurst, who are employed by NSW Trains (the ‘respondent’) were involved in a safe working incident on a passenger train service between Moss Vale and Goulburn (SN19) then Goulburn and Campbelltown, New South Wales (SN32). While I shall come back to the details of the incident momentarily, I observe that from the day of the incident, both Drivers have admitted their respective roles in the incident, which ultimately constituted a breach of the respondent’s Code of Conduct. At this point, I also note that Mr Atkinson has 32 years’ train driving experience and Mr Lukehurst has nine years’ experience. They are employed pursuant to the NSW Trains Enterprise Agreement 2014 [AE410460] (the ‘Agreement’). For reference, I annex as Annexure A to this decision, the disciplinary procedure (cl 32) under the Agreement.

[2] As a result of the safeworking incident, NSW Trains commenced an immediate investigation, during which both Drivers were stood down, with pay. However, ‘with pay’ means payment based on their Master Rosters, exclusive of allowances, penalties, mileage payments and other expenses that they would have otherwise been paid, had they worked their usual rosters. This arrangement is a discretionary decision of NSW Trains consistent with cl 32.5 of the Agreement. When the investigation concluded on 8 August 2014, NSW Trains authorised the Drivers to return to safeworking duties. However, before they could do so, they were informed that the case had been referred to the Workplace Conduct and Performance Unit (WCPU), due to their alleged breaches of the respondent’s Code of Conduct. While this second investigation proceeded, they were directed to sit in the meal room and be available for alternative duties at the Moss Vale Depot.

[3] At this juncture I note that there were effectively two investigations. The first was a factual investigation into the circumstances surrounding the incident to establish what actually happened. It concerned the train, being driven by Mr Lukehurst passing through a stop signal. An incident involving a train passing through a stop signal, is known in the industry as a SPAD (‘Signal Pass At Danger’). The second investigation conducted by the WCPU was to determine whether the allegations against the Drivers had been substantiated and, if so, whether their conduct constituted a breach/es of the Code of Conduct and, if so, what penalty, if any, should be imposed. More about the investigations later. For convenience, I shall refer henceforth to the first investigation as the SPAD investigation and the second investigation as the disciplinary investigation.

[4] Back to the narrative. On 12 November 2014, Mr Atkinson and Mr Lukehurst were informed they could resume safeworking duties and did so. On 9 January 2015, Mr Atkinson and Mr Lukehurst were advised of the disciplinary inquiry and the proposed penalties. Mr Atkinson’s penalty was four weeks’ unpaid suspension. Mr Lukehurst also received four weeks’ unpaid suspension and a first and final warning. On 16 February 2015, the Drivers responded to the proposed penalties, by pleading the severity of the further penalties, given the financial losses they had incurred and the emotional and personal strain and uncertainty to which they had been subject. The original penalties were confirmed on 8 April 2015.

[5] On 24 April 2015, the Drivers’ Union, the Australian Rail, Tram and Bus Industry Union (the ‘Union’), lodged an appeal with Transport NSW in respect to the penalties. This appeal was also unsuccessful. I do not understand there to be any dispute that during the period between the incident (27 June 2014) and when the Drivers resumed normal duties, Mr Atkinson and Mr Lukehurst incurred financial losses to the value of $11,053 and $15,419 respectively. It is also not disputed that the suspension penalties will result in a further loss to the Drivers of $8,827 and $9,250 respectively – a total of $19,880 and $24,669 respectively.

[6] On 9 July 2015, the Union filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Disputes Settlement Procedure at cl 8 of the Agreement. In short, the Union contends that:

‘… given the management of the investigation at hand, the punishment of four (4) weeks’ unpaid suspension for Mr. Atkinson and four (4) weeks unpaid suspension and a final warning for Mr. Atkinson is harsh, unjust and unreasonable as Mr. Atkinson have already been punished above and beyond what would be considered acceptable under any other circumstances.

[14] The loss of wages throughout the duration of the investigation process which was extended unnecessarily by the then Train Crewing Manager and sanctioned by the Regional General Manager (South) is forfeiture enough for the wrongdoing committed.

[15] The outcome of the disciplinary investigation, when taking into account the above, is arbitrary, illogical and inconsistent with the severity of other similar disciplinary investigation outcomes.’

[7] The Union seeks the following relief from the proceeding:

‘Pursuant to cl 32.1 of the [Agreement], the RTBU requests that the Commission review and subsequently order a lesser, more appropriate disciplinary outcome for both Mr. Lukehurst and Mr. Atkinson in light of the extenuating circumstances at hand. The RTBU Locomotive Division thus seeks a decision via either conciliation or arbitration regarding the final decision of the employer as handed to both Mr. Atkinson and Mr. Lukehurst on 08 April 2015.’

[8] The dispute was the subject of a conference before the Commission on 6 August 2015. Ultimately, it remained unresolved and following the issuing of Directions on 2 October 2016, the matter proceeded to arbitration on 11 December 2015. Ms J Epps appeared with Mr K Pryor and Mr R Newham for the Union and Ms J Nand, Solicitor, and Mr I Bennett, Solicitor, appeared with permission, pursuant to s 596(2) of the Act, for NSW Trains. I note that there is no jurisdictional impediment to the Commission dealing with the matter by arbitration; See: Hossain v Rail Corporation New South Wales T/A Railcorp [2014] FWC 344.

THE EVIDENCE

The Safeworking Incident
[9] On 27 June 2014, Mr Atkinson was the rostered Driver on a passenger train service, scheduled to leave Moss Vale at 3:15am to Goulburn (S19). The service was scheduled to depart Goulburn at 5:30am to travel to Campbelltown. Mr Lukehurst was present in the train cabin as an observer undergoing familiarisation with the route, before undergoing formal route training with a qualified Train Driver and a formal assessment with a Principal Driver. Notwithstanding that he was not authorised to take direct control of the train in these circumstances, Mr Atkinson offered him control of the train shortly before arriving at Goulburn. Mr Lukehurst accepted under Mr Atkinson’s instruction. Mr Atkinson explained that he did so because he believed it would assist him in acquiring the required route knowledge first hand.

[10] At around 7:35am, the train approached a signal at Macarthur, which was in ‘stop’ mode. Mr Atkinson claimed that they had passed a previous signal, which did not indicate the upcoming stop signal. Although Mr Lukehurst dropped the ‘dead man’ brake (which takes three seconds), the train passed the stop signal by approximately one carriage length. Obviously, passing through a Stop signal may result in significant risks for the safety of passengers, the public and other employees, along with possible damage to property and/or equipment.

[11] Mr Lukehurst gave his version of what happened in the safeworking incident as follows:

‘While I was in charge of the train, I was required to cross from the Up Main to the Down Main (and hence I was running in the wrong direction due to a freight train that was situation [sic] on the Up Main into Sydney). After I had changed lines, I noted a medium caution. We then passed a shunting train and I was asking Mr. Atkinson about the upcoming turnout and the associated speeds. All of a sudden, I noticed a stop signal up ahead and asked Mr. Atkinson if this was our stop signal. He then told me that it was, but it was too late to stop. I went to break [sic] and dropped the dead man brake, but I forgot there is a 3-second delay before the dead man is applied and therefore I passed the signal at stop. I passed the signal by 25 metres.’

[12] The following persons provided written and oral evidence in the proceeding:

• Mr Lukehurst;



• Mr Atkinson; and



• Ms Candice Heine, Regional General Manager – South, NSW Trains.

For the Union

Mr Elton Lukehurst

[13] Mr Lukehurst did not deny taking up Mr Atkinson’s offer to drive the train on 27 June 2014. While he is a qualified Driver, he accepted that he was not authorised to do so. After the incident, Mr Lukehurst was stood down on base pay for several weeks before his pay rates changed. He and Mr Atkinson were required to sit in the Moss Vale meal room, Monday to Friday, and given nothing to do. He and Mr Atkinson were not informed of any progress with the investigation until 10 September 2014, when they were told the matter was to be referred to the WCPU for a Code of Conduct Investigation. They resumed normal work on 12 November 2014. Mr Lukehurst responded to both the SPAD investigation and the disciplinary investigation. He believed that, given the time already spent not working and the monetary loss sustained, a further penalty was unreasonable.

[14] Mr Lukehurst said that when he originally transferred from Eveleigh Depot to Moss Vale Depot in June 2014, there was no driving work for him to do and no Driver Trainer was available to teach him the relevant routes. It was Mr Lukehurst’s evidence that at the time of the incident, he was extremely stressed from pressure put on him following his transfer to Moss Vale. He had sold his home, bought a property near Moss Vale and transferred himself and his family, only to be told he may have to go back to Sydney. While this decision was not followed through, he said he found it emotionally straining. While he was told to familiarise himself with the Moss Vale routes by riding as an observer only, he believed he would learn the routes more quickly by actually driving the train.

[15] Mr Lukehurst described the financial stress he endured and which almost cost him his relationship with his partner. He had lost anticipated earnings of around $15,419. Having to sit in the meal room with other employees coming and going made him feel humiliated and ashamed at doing nothing, while everyone knew they were being investigated. Coupled with the financial penalty, these circumstances were mentally and emotionally damaging and a further penalty was excessive and unjustifiably harsh.

[16] In cross examination, Mr Lukehurst agreed that operating a train is safety critical work and a failure to comply with operating procedures could have serious safety consequences. Mr Lukehurst denied that his actions were reckless – he had not been skylarking. He had a buddy in the cabin and he was qualified for the ‘traction’ (of the specific train).

[17] In re-examination, Mr Lukehurst said he had admitted from the outset to what he had done and had explained exactly what had happened. He claimed he had never refused any alternative duties while suspended. He had been offered no training. Mr Lukehurst confirmed that he and Mr Atkinson were informed after the SPAD investigation, that they would be back on roster within a week.

Mr Keith Atkinson

[18] Mr Atkinson noted in his evidence that, at the time Mr Lukehurst transferred to Moss Vale, there was no work for him driving trains at the Depot. Mr Atkinson offered Mr Lukehurst the opportunity to drive the train on 27 June 2014 because he could see he was bored at having no work to perform and no one to train him on the Moss Vale routes. In any event, it was Mr Atkinson’s belief that the best way to learn the routes was to drive them.

[19] Mr Atkinson’s evidence as to what happened during the incident is similar to that of Mr Lukehurst’s and is not disputed. However, Mr Atkinson said he did not understand why it was necessary for a Code of Conduct investigation, when a safeworking investigation had been concluded and given that they both ‘put our hands up and admitted wrongdoing’ in the first instance. Consequently, there was no contest as to a breach of the Code of Conduct. Nevertheless, Mr Atkinson responded to the allegations, noting his admissions and expressing sincere apologies for his actions.

[20] Mr Atkinson claimed that he could not understand why he and Mr Lukehurst could return to normal duties on 12 November 2014, despite an ongoing disciplinary investigation and despite being unable to return to work on 8 August, after the completion of the SPAD investigation. There was never any explanation from management as to why they were allowed to resume driving trains mid-investigation in November, but not in August 2014. In addition, between 12 November 2014 and 9 January 2015, no one had explained to him why the investigation was taking so long, particularly as the Agreement requires such advice if the disciplinary investigation extends beyond twelve weeks. This investigation had taken over 17 weeks.

[21] Mr Atkinson described his anger, humiliation and frustration at having to sit in the meal room with no work and limited communication from his employer. He was frequently asked by colleagues as to when he would be returning to work. He could not answer or explain his side of the story. This had made him more angry and upset.

[22] In responding to the proposed disciplinary penalty, Mr Atkinson described it as being unreasonable and unjustified on the basis of his financial loss and the emotional and mental stress the ordeal had caused him and his family. He estimated his financial loss at $11,053. Mr Atkinson believed the penalty imposed on him was disproportionate to other disciplinary outcomes in which a SPAD was involved. He believed the penalty was unreasonable and harsh, given the way he was treated by management.

[23] In cross examination, Mr Atkinson acknowledged that he knew Mr Lukehurst was not authorised to drive the train and that operating a train was safety critical work. Nevertheless, having previously worked on freight trains, he believed the only way a Driver could learn how to drive a train was being put in the Driver’s seat under supervision. He had been running on that route for many years and did not accept there were serious consequences in allowing Mr Lukehurst to drive the train. He noted Mr Lukehurst had been driving trains for ten years and he was qualified in the ‘traction’ he was driving. He regarded him as a very competent Driver. Mr Atkinson said that the train was on a downhill incline and could not be stopped in time, ending up one carriage past the signal. Mr Atkinson refused to accept that his actions were ‘reckless’. The incident was ‘very unfortunate’ and could have been avoided. He stated that what had happened could have happened to any qualified Driver.

[24] In re-examination, Mr Atkinson said there was no chance of a collision or derailment as a result of the SPAD, as there were no catch points after the signal. He conceded that had there been, the train would have derailed.

For NSW Trains

Ms Candice Heine

[25] Attached to Ms Heine’s statement were a number of the respondents’ procedures and policies that were referred to in the proceeding, including the following:

• NSW Trains Code of Conduct;



• Train Working Procedures;



• NSW Trains Discipline Policy and Procedure; and



• RailCorp Interim Disciplinary Penalty Review Process Guidelines.

[26] Also attached to her statement, were the:

• Personal history records of both Drivers;



• SPAD Investigation Report (in two parts), conducted by Mr Matthew Lee, Standards Officer;



• ‘Just Culture’ assessments conducted by Ms Suzanne Strike, Train Crew Manager – South, identifying potential behavioural and conduct issues arising out of the SPAD investigation;



• Investigation Reports;



• Disciplinary Review Panel referral documents;



• Various email and letter exchanges relating to the matter.

[27] Ms Heine described what would usually occur when an employee is taken off their usual duties. Mr Atkinson and Mr Lukehurst were paid either base pay or Master Roster and directed to attend Moss Vale Depot to perform alternate and suitable duties and/or complete training modules.

[28] Ms Heine observed that alternative duties at Moss Vale were ad hoc and limited due to the location and size of the Depot. However, arrangements were made for the Drivers to perform certain clerical duties and for the collection and delivery of items around the Depot. While she agreed these duties were limited and not readily available, she also believed the Drivers had elected to sit in the lunch room, despite being entitled to occupy other vacant offices at the Depot. She conceded that no training had been provided to Mr Lukehurst or Mr Atkinson.

[29] Ms Heine said that following the SPAD investigation and Ms Strike’s ‘Just Culture’ assessments, she met with Ms Strike and Mr Peter Styles (Employee Relations Manager) on 25 August 2014 to discuss whether a disciplinary investigation was warranted. They collectively agreed that it was appropriate because:
(a) the SPAD Investigation had been completed;
(b) discussions were ongoing with the WCPU to determine whether a disciplinary investigation was to be conducted; and
(c) the Drivers were to remain off their usual duties and the existing arrangements regarding alternate duties were to continue until further notice.

[30] Ms Heine said that she consulted with Mr Kevin Mullens of the WCPU and Mr Phil Clancy, Head of Competence and Assurance in late October 2014, or early November, to discuss a return to normal duties by the Drivers. This involved:

(a) for Mr Atkinson:

(i) reassessment and requalification for Rail Safety Worker Competency Card;

(ii) implementation of a return to work program comprising of coaching in relevant rules and procedures;

(b) for Mr Lukehurst:

(i) reassessment and requalification for Rail Safety Worker Competency Card;

(ii) implementation of a comprehensive return to work program comprising of on-road training, assessment and off-road coaching in relevant rules and procedures; and

(iii) commencement of a 24 month driver coaching and development plan.

[31] Ms Heine said the decision to return the Drivers to normal duties was based on:

(a) the disciplinary investigation was approaching 12 weeks since its commencement;

(b) the Drivers were to undergo rigorous competency and assurance processes as part of their return to their rostered duties, thereby minimising the risk of reoccurrence; and

(c) the disciplinary investigation was nearing completion.

[32] Ms Heine observed that the WCPU completed the disciplinary investigation on 24 November 2014 and determined the allegations were substantiated. On 17 December 2014, the Disciplinary Review Panel (DRP) considered and made preliminary findings and recommendations as to disciplinary action (see para [4]). The Drivers were invited to respond and did so on 16 February 2016.

[33] It was Ms Heine’s evidence that the penalties were decided because:

(a) the conduct of the Drivers was sufficiently serious as to have warranted potential termination of employment, but there were certain mitigating circumstances that led to consideration of other alternative penalties;

(b) the incident could have had serious ramifications for NSW Trains in terms of its rail services licence, public confidence and safety obligations;

(c) the Drivers did not appear to appreciate the incident was not simply a SPAD, but also a serious matter in which an experienced Driver had relinquished control of a train, with passengers on board, to another person known not to be authorised to operate on the particular route; and

(d) both the Drivers were at fault and given their experience in the rail industry, they would have known their actions were breaching the applicable network rules and Train Working Procedures.

[34] It was Ms Heine’s view that Mr Atkinson’s long and unblemished record counted in favour of him not receiving a first and final warning. On 8 April 2015, Ms Heine advised the Drivers of the confirmation of their suspension and gave them the option of cashing in their annual leave, in lieu of suspension. On 24 April 2015, the Union unsuccessfully sought a review of the penalties from Transport NSW’s Disciplinary Panel.

[35] Ms Heine believed that the disciplinary process was ‘complicated’ because:

(a) the Drivers admitted their actions that lead to the SPAD, but failed to appreciate the gravity and other issues associated with allowing an unauthorised person to operate a train on the network;

(b) Mr Atkinson had a clean performance record and significant experience;

(c) although Mr Atkinson and Mr Lukehurst had differing performance histories, NSW Trains sought to implement a degree of consistency to appropriately reflect their involvement and role in the incident;

(d) NSW Trains wanted to ensure the Penalties were fair, taking into account previous similar incidents, the penalties applied for these similar incidents and the Drivers’ mitigating circumstances; and

(e) the process continued over the busy end of year and Christmas period. This presented issues associated with availability of key individuals in the process.

[36] In cross examination, Ms Heine said that the Drivers were not allowed to return to normal duties in August 2014 because the SPAD investigation had recommended a review of their disciplinary history and management considered their behaviour was ‘risky’. She then referred to the ‘Just Culture’ framework and characterised their behaviour as ‘reckless’. Ms Heine understood that the WCPU assesses an individual’s performance holistically. She agreed the Unit does not have qualified safe working personnel. She noted that any proposed penalty was outside her delegation.

[37] When asked why the Drivers were returned to normal duties, while the disciplinary investigation was ongoing, she answered:

‘because the report has not flashed up anything by way of their elements that needed to be concerned in their statements, so I spoke to my manager and we agreed that they had shown sufficient remorse; that they understood that they had not only had a SPAD, that they had also given up control of the train, and that they didn't oppose a 322 travelling public, and it was off the back of that that we agreed to put them back on the road.’

[38] In re-examination, Ms Heine said that before clearing the Drivers for normal duties, she consulted the WCPU, Mr Clancy, her manager and then another DRP Member.

SUBMISSIONS

For the Union

[39] Ms Epps set out the background to the dispute, the incident of 27 June 2014 and the subsequent SPAD and disciplinary investigations. Ms Epps claimed that the investigations had been mismanaged and the Drivers’ punishments were harsh, unjust and unreasonable. In addition, they had suffered a significant financial penalty and had been made to feel frustrated, embarrassed and angry.

[40] Ms Epps submitted that the Drivers’ stand down for over 18 weeks was contrary to the Agreement and there had been no explanation proffered which justified the extended length of the investigations, particularly after 8 August 2014. Ms Epps contended that the outcome of the disciplinary investigation was arbitrary, illogical and inconsistent with other similar disciplinary investigation outcomes.

[41] Ms Epps explained how Drivers obtain work in accordance with the Drivers’ Rostering and Working Arrangements and the Transfer of Roster Placement Policy. Ms Epps noted that in June 2014, when Mr Lukehurst was transferred from Eveleigh to Moss Vale, he received no driving work. Ms Epps conceded (correctly) that Mr Lukehurst was not qualified to drive the route on 27 June 2014.

[42] After Ms Epps set out what happens when a SPAD incident occurs, sheclaimed that despite the Drivers being cleared to resume driving duties and were authorised to do so, they were informed the disciplinary investigation was to take place and they were to sit in the meal room during the process. Ms Epps believed there was no need for a second investigation, given their early admissions of being involved in an unsafe work practice.

[43] Ms Epps referred to the disciplinary provisions of the Agreement (see Annexure A). She noted that uncomplicated disciplinary investigations should generally be completed within 10-12 weeks. If the matter is complex and requires longer than twelve weeks, the employee is to be advised in writing. This did not occur. Nor were the Drivers advised why the investigation was taking so long or when they might be returned to normal duties.

[44] Ms Epps noted that the Employee Performance and Development Policy and Procedure – Discipline defines and delineates ‘at risk’ behaviour, reckless behaviour and unintentional error. She submitted that, realistically, this should have been a simple exercise. It did not warrant a 6½ month long investigation, which also included breaches by NSW Trains of the Agreement.

[45] In oral submissions, Ms Epps put that the common period for SPAD investigations was one to three weeks. She emphasised that the total respective financial losses for Mr Lukehurst and Mr Atkinson, if the penalties were to stand, were $24,669 and $19,880.

For NSW Trains

[46] Ms Nand submitted that this dispute was misconceived in that the penalties imposed on Mr Lukehurst and Mr Atkinson were fair and arguably, lenient. Further, there was no procedural unfairness in the conduct of the investigation. Ms Nand described the functions and operations of NSW Trains and the strict statutory and policy emphasis on rail safety.

[47] Ms Nand suggested that the Union’s case was largely based on incorrect assumptions, including:

• the SPAD investigation was a factual investigation of the incident, not an incident into the behaviour or conduct of the Drivers;



• the disciplinary process commenced on 25 August 2014 and ended on or around 12 November, when the Drivers were permitted to resume normal duties. Therefore, they were only on restricted duties for twelve weeks. The SPAD period was not relevant to the disciplinary investigation.

[48] Ms Nand submitted that the Drivers’ conduct gave rise to serious concerns regarding:

(a) the safety of the Drivers;
(b) the safety of the passengers on the train;
(c) potential damage to rail property and infrastructure; and
(d) NSW Trains’ ability to comply with its accreditation and safety obligations.

The Drivers had wilfully disregarded a requirement that Mr Lukehurst not operate a train on that route and the subsequent SPAD incident demonstrated the necessity of this requirement.

[49] Ms Nand argued that comparisons to other SPAD outcomes were not relevant. The conduct of two experienced Drivers had put the safety of passengers, the crew and property at risk. Indeed, it would not have been unreasonable for the Drivers to have been dismissed. However, Ms Heine’s evidence described the basis for the penalties as being:

(a) the seriousness of the misconduct and its potential consequences;
(b) Mr Atkinson’s long and unblemished employment history; and
(c) Mr Lukehurst’s prior history which included a positive reading for cannabis use in 2009, one ‘near hit’ in 2007, two SPADs in 2007 and 2013, and five overshoot/short of platform events occurring between 2007 and 2010.

[50] Ms Nand submitted that it would have been untenable to allow the Drivers to resume normal duties during the investigation, until management was satisfied they no longer posed a risk. In any event, the Drivers were paid according to the Master Roster or at base rates of pay. Any detriment should not outweigh the proper assessment of their conduct. She noted that loss of allowances, expenses and mileage payments accrued from work actually performed.

[51] In tracing the time line from the incident on 27 June 2014 to the final review decision on 26 May 2015, Ms Nand noted that the only periods which might be said to involve a delay were:

• the two weeks before the disciplinary investigation was advised to the Drivers;



• the period between the Drivers’ response to the allegations of 26 September 2014 to 2 October 2014 and the completion of the investigation report on 24 November 2014;



• the finalisation of DRP process over the Christmas period;



• the period between DRP’s consideration of the Drivers’ responses (10 March 2015) and the decision on penalty (8 April 2015).

Ms Nand concluded that as the Drivers resumed normal duties within the twelve weeks of the commencement of the disciplinary investigation, there were no substantial unfairness issues.

[52] Ms Nand submitted there was no ‘significant departure’ from the terms of the Agreement as any departure related only to procedural matters, and not substance. The dispute should be dismissed with no interference in the decision of NSW Trains to impose the penalties on the Drivers.

[53] In oral submissions, Ms Nand observed that the Drivers’ positions changed from admitting their breaches during the SPAD investigation to challenging the unfairness of the entire process. Their response submissions needed to be appropriately considered by the DRP. Ms Nand put that there is a well known distinction, supported by the Union, between an incident investigation and a Code of Conduct investigation.

[54] Ms Nand noted that in this case, the investigation was complex. It was not as simple as the Drivers merely admitting their involvement in the incident. NSW Trains was obliged to consider the nature of the conduct, its potential consequences, disciplinary issues and mitigating factors. The matters went through the DRP twice, the Drivers had two opportunities to respond. At all times, the Drivers were aware of the processes, where the processes were up to and were represented by their Union. Ms Nand stressed that the financial losses of the Drivers were taken into account.

[55] In reply, Ms Epps noted that the Drivers’ lost pay during both investigations and were allowed to resume usual duties midway through the disciplinary investigation. While the Union did not contest NSW Trains’ right to conduct a disciplinary investigation, it took issue with the investigation being unnecessarily prolonged.

[56] Ms Epps stressed that Mr Clancy had confirmed that the Drivers were competent to return to normal duties after the SPAD report and had advised Ms Heine accordingly. However, it was not until 12 November 2014 that they were able to resume usual duties; notwithstanding the disciplinary outcome was not completed until 24 November – 12 days later. Ms Epps said this made no sense.

CONSIDERATION

[57] The safeworking incident occurred on 27 June 2014. The Drivers were informed of the outcome of the last internal review (and I regard the review by Transport NSW as an internal review) was 26 May 2015 – a period of 11 months. In my opinion, on any objective assessment, such a long period of time was excessive and unreasonable. While I accept that the investigation of safety incidents with the potential for serious safety risks to passengers, employees and damage to property, be thorough and exhaustive and comply with the rules of procedural fairness, I simply do not accept that the circumstances of this case justified the plainly acknowledged amount of time and delay.

[58] This is particularly so, given that firstly, the Drivers admitted to the breaches of NSW Trains’ policy from the outset. In my view, there was little for the disciplinary investigation to investigate, other than to consider the responses from the Drivers as to mitigation, weigh up all the relevant factors and determine penalty. That this process took over four months (24 August 2014 – 8 January 2015) and ultimately found the allegations to be substantiated (stating the obvious) and given the personnel network and resources of NSW Trains, beggars belief and is utterly unacceptable.

[59] To submit that the Christmas period contributed to the delay is disingenuous baloney. NSW Trains does not stop its operations over Christmas and nor should investigations affecting the livelihood and wellbeing of employees. I will not accept that excuse, albeit it was a relatively minor factor in the overall scheme of things.

[60] Secondly the SPAD investigation spanned from around 27 June 2014 to 10 August 2014. Despite submissions to the contrary, I have reviewed all the material and in my judgement, there was nothing particularly complex or complicated about that investigation. It was simply to determine the facts of the incident. These facts were well known, pretty much from the outset, and may be summarised as follows:

• Mr Atkinson handed control of the train to Mr Lukehurst. Both of them knew that Mr Lukehurst was not authorised to drive the train.



• Mr Lukehurst, while in control, passed a stop signal for a full carriage length before coming to a stop.

‘Blind Freddy’ would know if a moving passenger train ignores a stop signal, there is a serious potential risk to persons and property for which the persons responsible need to be held accountable. I do not quibble with that statement of the obvious.

[61] NSW Trains insisted that the reasons for the two investigations taking so long arose from its obligations to follow the Agreement, the processes and NSW Trains’ policies and the complexity of the issues. My point is not necessarily a criticism of compliance (although there was some debate about this which I will refer to shortly), my concerns relate to the very processes which are triggered by incidents such as this. They are themselves complicated and complex and contribute to unacceptable delays in ensuring the interests of justice are served.

[62] It is trite to observe the long held well known legal principle of ‘justice delayed is justice denied’. Emanating, some believe, from the words found in the 1215 Magna Carta, ‘To no one will we sell, to no one deny or delay, right or justice’, there is a certain resonance with this principle to what was evident in this case. The Commission is also aware that this is not the first occasion on which NSW Trains (and its predecessor, RailCorp) has been criticised for delays in investigating disciplinary matters. While the circumstances are not directly analogous, in Miller v RailCorp [2009] AIRC 737, SDP Hamberger observed as follows at para [80]:

‘[80] I can discern no reasonable explanation for why it took between the incident on14 September 2005 and 29 June 2006 for the respondent to make a decision on what to do with the applicant. Dr Casolin’s memorandum to Ms Simons was dated 5 January 2006. The CCTV footage of the 14 September incident was available and had already been analysed. Ms Buvet, when asked, was able to produce a summary of the applicant’s previous employment record in a matter of days. The issue seemed to bounce back and forth (including the WCU and its contractor, Ms Kamira) while the respondent struggled to make a decision. This is not a matter of corruption or malice, as claimed by the applicant; rather it is a case of inefficiency [emphasis added].’

On one view, little must have changed. These processes are not only inefficient, but have the potential to operate unfairly, as happened in this case. They need a radical overhaul.

[63] That said, there are other gaps in the timeline which were unexplained and inexplicable. For example:

• Why did it take from 10 August 2014 to 25 August for NSW Trains to decide to refer to the matter to the WCPU?



• Why did it take from 25 August 2014, when the matter was referred to the WCPU until 10 September, before formal notice of the referral was given to the Drivers?



• Why did it take from the last response of the Drivers on 2 October 2014 until 24 November 2014 for the completion of the report?



• Why did it take from 24 November 2014, when the disciplinary investigation was completed to 17 December 2014, before these reports were considered by the DRP?



• Why did it take from 20 February 2015, when the Drivers’ responses were received to 10 March, for their responses to be considered, particularly when they disclosed nothing new?

[64] In fairness, I accept that the Drivers were notified of the breaches of the Code of Conduct on 9 January 2015 and invited to respond. They did not do so until 16 February 2015. While I accept that there are specific hierarchical lines of management approval required and persons need to be available for nominated meetings, these extended periods of seeming inactivity only serve to make my point that the entire process needs review and streamlining to make it more efficient and fair.

[65] Nevertheless, there are some other curious and concerning aspects of the investigations, which I have found difficult to reconcile or comprehend.

[66] Firstly, there was no explanation or contradiction of the Union’s evidence that the Drivers were cleared to resume normal duties around 8 August 2014, after the completion of the SPAD report. The evidence was that they were told by persons in management – who must have had the appropriate authority – that they would be shortly resuming normal duties. I ask then, what made them competent to resume one day, but not competent the next day? The fact that the disciplinary investigation was put in place was, to my mind, irrelevant to their declared competency at that point. The disciplinary investigation was to determine, in essence, penalty for breach of the Code, not competency to drive trains. I note that Ms Heine accepted that the WCPU does not have technical safeworking expertise, whereas the persons who declared them competent in August 2014 had such expertise.

[67] What I also find bizarre is that the Drivers were cleared for normal duties a second time on 12 November 2014, twelve days before the outcome of the disciplinary investigation was known. In other words, either the disciplinary investigation required a stand down from normal duties, which was pre-empted, or in truth, their continued stand down was unnecessary after 8 August 2014. This inconsistency was not satisfactorily explained by NSW Trains and, in my opinion, reinforces the unreasonableness of the actions taken by NSW Trains in this matter.

[68] In addition, I do not accept that the removal from normal duties during the SPAD investigation was irrelevant to the duration of the disciplinary investigation and, in any event, they were only removed for twelve weeks. Technically, this is correct, because the two investigations were inquiring into two distinct matters (see para [3]) However, the stand down obviously applied to both the SPAD and the disciplinary investigation arising from the same incident on 27 June 2014. The detrimental effect on the Drivers was no different. To submit that the two processes are unrelated in the context of the full and related circumstances is both disingenuous and a reflection of the absurdly over-technical and ultimately unfair outcome for the Drivers through the complex and complicated policies and procedures adopted for a relatively straightforward technical and disciplinary issue.

[69] Further, it is disingenuous for NSW Trains to defend the lengthy time periods for the two investigations by relying on strict adherence to timeframes and processes inherent in the procedures, while at the same time merely ‘brushing off’ its own failings in strictly adhering to the Agreement’s disciplinary requirements. It was at least conceded that there was no ‘significant departure’ from the terms of the Agreement, and even so, it was said that these faults did not outweigh the seriousness of the allegations or the Drivers’ understanding of what was taking place and when. In my view, NSW Trains cannot have it both ways and expect this Commission to accept it was entirely justified in its actions or more correctly, lack of action.

[70] Ms Nand submitted that one of the complexities was that the Drivers had changed their position from admitting their conduct to contesting the process. There is no logical basis for such a submission. Of course they changed their defence. They could not have known at the start of the SPAD investigation what was to happen subsequently. Many months after the incident, they sought to criticise the delays in the process. This was not an altered position. Their admissions remained consistent. This was a perfectly understandable reaction to their months of frustration with the delay in finalising the matter and the ‘on again, off again’ decisions of management to clear them for normal duties in August 2014, only to shortly thereafter reverse that decision until 12 November 2014.

[71] Both in Ms Nand’s questioning and in Ms Heine’s evidence, there is raised the proposition that the Drivers had engaged in ‘reckless’ behaviour. Mr Atkinson, in particular, strongly resented this proposition and strenuously denied what he did amounted to ‘reckless’ behaviour. Presumably, the ‘reckless’ proposition arises from a ‘tick a box’ conclusion exercise found in the SPAD report, which I set out hereunder:

Conclusions & Possible Contributing factors (if more than one please highlight the main factor) Please also include a brief summary of why the incident occurred
Train Management	□ Weather conditions	□ Fatigue	□ Communication
□ Distraction	□ Loss of attention	□ Signal sighting	Route familiarisation
□ Misjudged	□ Assumption	At Risk/Reckless behaviour	□ Other (please note below)
Failure to respond to preceding signals
Summary
Primary cause of SPAD identified as Driver failing to operate SN32 as per the previous caution signal indication. Contributing Factor: Driver operating SN32 at the time of the SPAD was not qualified for the route and was under instruction by a Driver (not a Driver Trainer as required).
(Add additional lines as required)
Please note if the incident warrants it (given its seriousness) it should be referred to Safety Investigations for a Level 4. All Severty A,B &C SPADs will already have a Level 4 Investigation planned.

[72] As can be seen, to tick a box of ‘at risk’ behaviour also means that it is ‘reckless behaviour’. In my view, there is a distinction between the two notions. It is at best misleading and, probably wrong, to group both behaviours as one and the same. To explain, the Macquarie Dictionary defines ‘reckless’ as ‘utterly careless of the consequences of action’ and ‘(at) risk’ as ‘subject to greater risk than usual, especially of undesirable social and medical consequences.’ Moreover, this grouping of the notions is inconsistent with the Disciplinary Procedure in the Policy – Employee Performance and Development, where at cl 5, it draws a distinction between ‘reckless behaviour’ and ‘at risk’ behaviour. It says:

‘Under a Just Culture disciplinary action is ordinarily not the first response to an incident involving employees – a manager’s/supervisors first response is to openly and fairly assess the circumstances involved.

The Just Culture Framework describes the process that managers/supervisors should follow when conducting this assessment.

Unintentional error will usually not attract disciplinary action, as remedial action (such as coaching or performance development) may address the situation. For more information on remedial action refer to the relevant policy ie State Rail Managing Poor Work Performance Policy of the RIC Performance Improvement Policy.

However, for reckless behaviour, and in some circumstances, for at-risk behaviour, disciplinary action may be taken.

This Discipline Procedure describes the process to be followed when it has been determined, as a result of an initial assessment, that reckless and/or at-risk behaviour may have occurred and disciplinary action may be the most appropriate response [emphasis added].’

In other words, ‘reckless behaviour’ will almost always result in disciplinary action, whereas only certain more serious ‘at risk’ behaviour will be so treated.

[73] Driving trains is an inherently dangerous and risky occupation. It is for these reasons that the rail industry is so highly regulated and places the highest priority on safety issues and employee awareness. In my opinion, the actions of the Drivers on 27 June 2014, cannot be characterised as ‘utterly careless of the consequences of [their] actions’. Nevertheless, the conduct did place themselves, the passengers and the property of NSW Trains ‘at risk’, meaning at a greater risk than usual. I hasten to add that the conduct was serious and deserving of sanction.

Appropriateness of penalty

[74] While I accept that Ms Heine’s evidence was that all of the relevant factors were taken into account in determining the appropriate penalty, including the loss of usual earnings, this is always a very difficult matter for the Commission to assess, given that it requires assumptions about the thought processes of the decision makers and accepting their testimony. It will always be an exercise of balancing mitigating factors against the seriousness of the allegations.

[75] That said, I accept unreservedly that the safeworking incident on 27 June 2014, was serious and posed a risk to the safety of persons and risk to the damage of property. However, two matters concern me as ones which were not afforded proper weight in the penalty outcomes.

[76] Firstly, the financial penalties, amounting to many thousands of dollars was, on any objective view, a significant burden on the Drivers and their families. The amount of loss was exacerbated by the lack of explanation as to why the Drivers were not able to resume normal duties before 12 November 2014. I consider the significant financial penalties arising from the stand down of the Drivers, to be sufficient. To further penalise them by way of unpaid suspension would be harsh and amount to a ‘double penalty’. I note that it is also arguable (although it was not in this case), that the loss of financial benefits, arising from being stood down from normal duties, constituted a fine for the purposes of cl 32.1(b) of the Agreement.

[77] Secondly, the Drivers emphasised their mental and emotional strain exacerbated by the length of the investigation, the uncertainty of when they would resume normal duties and the embarrassment and humiliation of sitting in the meal room, observed by their work colleagues, doing no or menial work and with little communication from management. I have no reason to doubt the evidence of Mr Lukehurst and Mr Atkinson of how they felt over many months, particularly given their early admissions. Nor do I doubt that the uncertainty adversely impacted on them and their families, both emotionally and financially. While I acknowledge these matters were considered by management, it is my assessment, in the balancing exercise, that they were not given appropriate weight in the determination of the penalty to be imposed on the Drivers. I have also had regard to ss 577 and 578 of the Act, which requires the Commission to ‘perform its functions and exercise its powers in a manner that … is fair and just’ and by taking into account, ‘equity, good conscience and the merits of the matter’.

[78] Finally, it is unclear to me on what basis, or from what policy or document, Mr Lukehurst received a first and final warning. Plainly, in both the Agreement (cl 32) and the policies, the penalties which are available for breaches of the Code of Conduct and any disciplinary action set out that:

32.1 Disciplinary measures that may be taken after an investigation include:

(a) caution or reprimand;

(b) a fine;

(c) reduction in position, rank or grade and pay;

(d) suspension from duty without pay; and

(e) dismissal.

[79] Assuming there is no policy or Agreement foundation for imposing a first and final warning (or any warnings at all), it is difficult to see under what authority this penalty was determined (perhaps it derives from the generalised rider found at para [10] of the Disciplinary Procedure – Employee Performance and Development Policy, although this relates to additional management action, that might be imposed. However, I do not accept that management action includes warnings). As an aside, for my own part, I do not understand the concept of a first and final warning. It is a contradiction in terms. By use of the word ‘first’, it must mean a number of subsequent warnings. However, this is entirely inconsistent with a ‘final’ warning, which permits no other warning. In my view, where employers use a system of warnings in disciplinary matters, they should eschew this confusing language.

CONCLUSION

[80] For the aforementioned reasons, I would grant the relief sought by the Union and determine that the penalties imposed on Mr Atkinson and Mr Lukehurst be not imposed and, in their place, Mr Atkinson should receive a caution and Mr Lukehurst should receive a caution and a reprimand for their conduct on the 27 June 2014. Orders to that effect shall be made if required by the parties.

DEPUTY PRESIDENT

Appearances:

Ms J Epps with Ms K Pryor and Mr R Newham for the Australian Rail, Tram and Bus Industry Union.

Ms J Nand, Solicitor with Mr I Bennett, Solicitor for NSW Trains.

Hearing details:

2015,

Sydney:

11 December.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577893>

Annexure A

32. DISCIPLINARY MATTERS

32.1 Disciplinary measures that may be taken after an investigation include:

(a) caution or reprimand;

(b) a fine;

(c) reduction in position, rank or grade and pay;

(d) suspension from duty without pay; and

(e) dismissal.

32.2 Uncomplicated disciplinary investigations should generally be completed within 10 to 12 weeks’ from when an Employee is notified that an investigation is commencing.

32.3 Irrespective of the complexity of the matter, after 12 weeks’ from commencement of the notification, the Director Human Resources or nominee, is to advise the Employee in writing if the process is to extend beyond 12 weeks’, the anticipated time for the current stage to conclude and outline the reasons for any delays to date or anticipated delays. Reasons for a delay may include:

(a) complexity of the matter;

(b) exceptional circumstances;

(c) request for delay by an external investigating authority;

(d) availability of the Employee; or

(e) similar advice is to be sent each subsequent 6 weeks’ after the first advice.

32.4 Where an investigation arises out of a complaint by another Employee, that Employee will also be advised of progress of the matter.

32.5 Pending the outcome of an investigation, Employees may be suspended on base pay, master roster pay in special circumstances, suspended without pay, placed in alternative duties or re-assessed and returned to normal duties.

Where an Employee’s period of suspension exceeds 17 weeks’ they will resume their duty at that point, unless exceptional circumstances apply. Exceptional circumstances would include: complex investigations, matters underway in other jurisdictions and where delays result from the Employee’s own actions.

32.6 Where an allegation is withdrawn or the outcome of an investigation results in no case to answer, the Employer will ensure that the Employee has suffered no loss of pay or entitlements when compared to their master roster pay or other pay arrangements that may have applied during the period of the suspension.

32.7 If the disciplinary process results in the Employee being suspended without pay, the suspended Employee may elect to have payments made against accumulated leave entitlements. Such leave will be re-credited where the Employee has been found to have no case to answer.

32.8 NSW Trains Employees will have access to the specific discipline appeals process which is legislated in NSW.