Australian Rail Tram & Bus Industry and Public Transport Corporation of Victoria

[1995] IRCA 60

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1510 of 1994

BETWEEN:

AUSTRALIAN RAIL TRAM & BUS INDUSTRY
Applicant

AND

PUBLIC TRANSPORT CORPORATION OF VICTORIA
Respondent

REASONS FOR JUDGMENT

28 February 1995  Judicial Registrar Fleming

Introduction

This is an application under Division 3 Part VIA of the Industrial Relations Act seeking an order requiring the respondent to reinstate the employee and an order that the respondent pay compensation to the employee.

The applicant alleges that the respondent is in breach of section 170DB, section 170DC, and section 170DE of the Industrial Relations Act.

Background

The applicant has been employed with the respondent since 19 September 1977 as a locomotive driver and a suburban train driver.  Mr Hurley was terminated on 22 August 1994.

A Summary of The Circumstances Giving Rise To The Termination

The applicant gave evidence that on 30 December 1993 he was on his way home from work and due to a disruption to services on the Footscray line there were lengthy delays.  Mr Hurley’s evidence is that the train that he caught on this evening was diverted to Footscray where he knew that there would be problems because of the disruption there.  Mr Hurley said that he was in uniform on that occasion and that people were asking him what was going on and that as he did not know he pointed across to a group of people who he thought would be able to assist the passengers.

Mr Hurley described the situation where there were many people attempting to get on a bus that had started to reverse into the car park and he describes that scene as “like mass panic as everyone has tried to rush for the bus, one bus for six carriage loads of people”.  His evidence is that there were about 100 people there on this occasion.  Mr Hurley said that while this situation was occurring people were getting pretty angry and that he saw the District Business Manager, Geoffrey Wild standing at the entrance to the bus and “people were yelling and screaming and arguing with him, and instead of trying to tell them what had gone wrong and sort of comfort these passengers, because they get pretty angry, he was abusing them”.  He was telling them “you know, like you know, just to get on this bus, you know, and they would ask him why he would tell them it was not there business and stuff like this”.

Mr Hurley’s evidence was that he said “well listen mate I’m a driver and I haven’t been told anything.  None of these people know what’s going on, you can at least tell them”.  Mr Hurley then stated that Mr Wild said “it’s none of your business” and Mr Hurley has replied “well yes it is because I’m a driver”.  Mr Hurley’s evidence is that he then started “getting really robust and just throwing his weight around”.  He said that he became intimidated by Mr Wild and so he said that he had become “a little bit abusive and we found ourselves moved from the front of the bus and were arguing backwards and forwards about who was swearing, you know, I was saying he was swearing.  He was telling me to stop swearing and he was going to report me and I was going to report him and his arms were waving around, and you know he has giving me a little bit of a push and I snapped and I did head butt him”.  Mr Hurley says further on “I snapped and I head butted him”. 

Mr Hurley then describes a fight in front of all the passengers where Mr Hurley was being very abusive and swearing and he and Mr Wild were wrestling around on the ground.  Mr Hurley then described people getting involved, three of them holding him and telling him to let go and be quiet.  Mr Hurley says Mr Pagonidis was one of these people who told him to be quiet, which he did.  Mr Hurley’s evidence is that after the fight the police were called and when they did not arrive Mr Wild, Mr Hurley and Mr Pagonidis and the other two station staff went to the police station and made statements to the police and they were permitted to go home.

Mr Hurley then gave evidence that on 5 January 1994 he was asked to come into the City to have a record of interview.  Mr Hurley’s evidence in relation to this meeting on 5 January 1994 is somewhat confused as it would appear that there were two meetings, one on 5 January 1994 and one on 31 December 1993.  In any event not much turns on the poor memory in this regard of Mr Hurley.  Mr Hurley believed that the purpose of the interview was that “it had high implications and I mean it was a pretty serious interview but it was done in a friendly manner.  It was done, we just want to find out what happened”.

It is clear from his evidence in cross-examination that there were two meetings.  At the first meeting on 31 December 1993 Mr Hurley presented a handwritten statement of what occurred the day before.  In his statement, marked exhibit 1, which is date stamped 31 December 1993 Mr Hurley says that:

“while people poured of the ramp I got a couple of complaints from passengers wanting to know what was occurring.  A bus started to back into position and people started to run towards it so I made my way towards the bus where I came across the D.B.M. and he was being yelled at by many passengers, so I supported the passengers’ complaint, but I was ignored by the D.B.M., then I used abusive language he made a comment at my language which I objected to then he pushed me aside, a physical altercation developed which was broken up by T.P.O. Kon Pagonidis, prior to this two station assistants were involved in the altercation.  I was furious that I had been assaulted by three fellow P.T.C. employees”.

In this statement Mr Hurley has omitted that he has head butted Mr Wild.  Furthermore, Mr Hurley has omitted that he was under stress at the time in that statement, however in court Mr Hurley’s evidence was that he was under stress because his father had died recently and that he was having difficulties with the custody of his children.

Even though exhibit 1 does not mention the head butting of Mr Wild it seems clear on the evidence that there was no doubt in anybody’s mind that Mr Hurley had head butted Mr Wild on 30 December 1993 and Mr Hurley had admitted to having done so but it appears that he has maintained that Mr Wild pushed him first.  After the statement on 31 December and consequent discussion on the same day there was a further meeting scheduled and attended on 5 January 1994.  Mr Hurley attended this meeting with his union representative Mr Laux.  Mr Uren, Mr Laux and Mr Hurley all signed this document (Exhibit D) and in the section which Mr Hurley signed there was provision for comments or acknowledgments by him.  This part is blank but for the signature of Mr Hurley.

Mr Hurley was transferred after the Record of Interview as a disciplinary measure.

Subsequent to the record of interview, as it has been called in these proceedings, on 5 January 1994 there was a further document tendered, that is exhibit E, which was dated 2 February 1994 and is headed final warning.  It refers to the incident on 30 December 1993 and says that the nature of this is misconduct and is considered most serious.  After 2 February 1994 Mr Hurley applied for and was successful in obtaining a transfer to V/Line.  Mr Hurley gave evidence that the police called him in about March and he made a “no comment” interview on his lawyers advice.  Mr Hurley’s evidence is that then in about April he received a summons which was returnable on 17 June 1994 at Sunshine Magistrates’ Court, that being the first mention date.  The summons listed four charges, which were:

1.intentionally cause injury;

2.recklessly cause injury;

3.unlawful assault; and

4.using indecent, obscene language in a public place.

The intentionally cause injury and the unlawful assault charges were withdrawn.

Mr Hurley gave evidence that on 17 June he sought leave from work to go to court.  He sought legal advice and Counsel was briefed and his evidence was that on Counsel’s advice he pleaded guilty to the two remaining charges.  The result of his plea was that the Magistrate convicted and fined him $3,000.00 after having found the charges proven.  Mr Hurley agreed with the summary which was read in court:

“As the victim was directing passengers on to a bus he was approached by the defendant, who was a train driver not working at the time.  The defendant then told the victim that he was a train driver and followed his statement indecent language using the word ‘fuck’ several times.  The victim who was offended by the language then told the defendant not to use that kind of language due to the presence of approximately 70 people who would have heard the language.  During the conversation the victim and the defendant came within inches of each other when the defendant suddenly head butted the victim in the nose causing him to bleed profusely.”

After Mr Hurley was fined and convicted he resumed work and it was not until early August that the respondent became aware of the decision of the Magistrate on 17 June 1994.  It was at that time that a letter was sent from Mr Szigeti to Mr Foldesi advising of the result of the court proceeding and then on 9 August Mr Foldesi wrote to Mr Hughes seeking implementation of the recommendation to terminate Mr Hurley’s employment as specified in Exhibit D.

Mr Keating gave evidence that on 19 August he telephoned John Guiry in relation to Mr Hurley’s termination.  Mr Shaw gave evidence that he recommended proceeding with the termination of Mr Hurley and his office prepared a letter of termination, which is exhibit A.  Mr Shaw said that Mr Hurley was not advised of the termination on 19 August because he was not there and that he did not like to terminate anybody’s employment by post.  He wanted to wait until Mr Hurley was back at work and this was on 22 August when Mr Guiry was instructed to have a conversation with Mr Hurley and advise him of his termination.  Mr Guiry’s evidence was that he advised Mr Hurley that he was going to be terminated and explained why he was being terminated.  Mr Guiry said that the meeting was a friendly one and that Mr Guiry had the file present with him and that Mr Hurley could ask any question in relation to the termination.  Mr Guiry said that “Mr Hurley was a little bit shocked or was rather shocked”.

Mr Guiry further gave evidence that if he had any belief that the termination was not correct then he would try to hold it off and make further enquiries but he said that nothing had changed and he assumed that Mr Hurley would go away and seek some advice in relation to the termination.

Mr Hurley was asked if he wanted to call the union and Mr Guiry also suggested that Employee Assistance Services, an internal counselling group, be contacted.

Assessment Of The Evidence

Acceptance of the applicant’s version of events relies heavily on accepting his credibility as a witness.  His evidence was that the assault was provoked by Mr Wild and that Mr Wild had pushed him first.  Leaving aside Mr Wild’s evidence and any of the corroborating witnesses’ evidence, for the moment, this Court must take into account Mr Hurley’s plea of guilty to the two charges of recklessly causing injury and obscene language.  Mr Hurley had legal representation on that occasion and should have been aware of the consequences of such a plea.

It is the plea of guilty that is relevant, not the decision of the Sunshine Magistrates’ Court and the court is entitled to take the plea as an admission of all elements that constitute the offence

Having said that I turn now to the evidence of Mr Hurley in relation to the dismissal.

At the meeting on 5 January 1994 Mr Hurley had present with him his union representative, Mr Laux.  Mr Hurley and all the other witnesses who were present at this meeting described the meeting as rather friendly.  Mr Hurley at no stage said that he felt constrained or under any restriction in relation to speaking openly and freely at this meeting.  Mr Hurley was shown the document marked Exhibit D which is the Record of Interview dated 5 January 1994.  He was given an opportunity to read it.  He was given an opportunity to discuss it privately with Mr Laux.  Mr Hurley was given time alone with Mr Laux and it was during this time that the record of interview was signed by Mr Hurley.

The Record of Interview sets out clearly what occurred at the meeting.  It is not a document that is ambiguous or requires interpretation.

Mr Hurley maintained at the meeting that he had been provoked by Mr Wild.  He conceded head butting Mr Wild but said Mr Wild had pushed him first.  I prefer the evidence of Mr Jappe, Mr Irato and Mr Wild that Mr Wild did not push or touch Mr Hurley prior to Mr Hurley head butting Mr Wild.  I find that the assault on Mr Wild was unprovoked.

Given however Mr Hurley’s contention that he was provoked by Mr Wild it was reasonable for the employer to conduct an investigation into the incident compiling reports from witnesses which it had.

It was submitted in mitigation by Mr Hurley that he was stressed at the time he head butted Mr Wild.  He gave evidence that he had personal problems which caused him to be stressed.  This court does not doubt that Mr Hurley had personal problems but such problems were not raised at the Record of Interview nor were they raised in his statement dated 31 December 1993.

Mr Uren gave evidence that if Mr Hurley had wanted to make any comment or change anything in the Record of Interview it was open to him to make such comment on the document however Mr Hurley made no comments on the document.

Mr Hurley did not appeal the decision made on 5 January 1994 although evidence was given by Mr Uren that it was open to Mr Hurley to appeal to the group manager of operations or to Mr Hughes or to the Chief Executive.

I accept the evidence of Mr Lee, Mr Uren and Mr Hughes that “union, management and everyone understood the final warning and what it stood for”.

It was not unreasonable for the respondent to await the outcome of police proceedings in view of the previous case referred to by Mr Devries as “The Trotman Case”.  Uncontested evidence was led that Mr Trotman was instantly dismissed after he assaulted a supervisor.  The P.T.C. was criticised by the union for doing so prior to Mr Trotman having an opportunity to argue his case before the court.  The union however ceased its effort in supporting Mr Trotman after he was unsuccessful on appeal against conviction in the County Court.

I accept the evidence of Mr Quigley that the P.T.C. was consistent and did not lead Mr Hurley on to believe that he would not be terminated but rather at all stages was clear that should Mr Hurley be found guilty of any charges of assault that his employment would be terminated and I refer to the evidence of Mr Laux who said that at the conclusion f the meeting on 5 January 1994 he had “great fear that criminal action would follow at the insistence of Geoff Wild”.

It was argued that Mr Hurley had already been punished because of his transfer Mr Laux gave evidence that:

“we assumed that our employer was just, and that after having once punished a man, after sending him to prison, so to speak wouldn’t drag him out at the end of his sentence and hang him.”

It was reasonable for the employer to terminate Mr Hurley in the circumstances.

Mr Uren gave evidence that the punishment was “not big punishment.  It is a punishment where he is going to be taken out of the station and placed at the electric running depot under more supervision without loss of income [and] based on the incident, being in the western district where the District Business Manager [Geoff Wild] controlled the area, it was seen that he should have been taken out of the area”.

In view of the seriousness of the injuries caused to Mr Wild the respondent could not be seen to sit idly by to await court proceedings which may or may not occur.  The respondent had a responsibility to its employees and to the general public not to condone fighting in the workplace and the action it took in the circumstances of transferring Mr Hurley without loss of income was reasonable.

I do not accept hat there has been any untoward delay by the employer in terminating the services of Mr Hurley.  There was no evidence that Mr Hurley had ever formally notified the respondent of the result of the Sunshine Magistrates’ Court.

Was There A Breach Of Section 170DE(1)

In order to determine whether the respondent had a valid reason to terminate the applicant’s employment it is necessary for the Court to determine whether the respondent did terminate the applicant’s employment for the reason given, namely serious misconduct.

The respondent employer on 31 December 1993, on 5 January 1994 and on 2 February 1994 expressed a recommendation to Mr Hurley that should any charges be brought against Mr Hurley of which he was found guilty in relation to the episode on 30 December 1993 then his employment would be terminated.  I find that on the evidence before me the respondent employer has been consistent at all stages.  The decision to terminate Mr Hurley was reached after proper investigation and due deliberation by the respondent.  I accept that fighting at the workplace is serious misconduct which can justify summary dismissal.  The Court finds that the action of the applicant here constituted serious misconduct which provided a valid reason for the termination of his employment.  I regard the applicant’s evidence first, in relation to the altercation where he claims he was provoked, and secondly, in relation to his interpretation of the meeting on 5 January 1994 that he did not believe he would be terminated as unsatisfactory.  I reject his evidence that he did not believe he would be terminated should he be found guilty of the charges.

Was There A Breach Of Section 170DC Of The Act

Mr Parkinson persuasively argued that the conduct of the investigation failed to accord procedural fairness to the applicant.  I find however that the applicant at all times was able to participate in at least three interviews where he was able to present his case.  The three interviews being 31 December, 5 January, and with Mr Guiry on 22 August.  I also find that Mr Hurley had an opportunity at the Police Station where he was called in to give a statement and later in Court when he was asked whether he was pleading guilty or not guilty to put his case across.  He chose not to do so.  Mr Hurley was given several opportunities to defend himself against all the allegations made.

Was The Termination In Breach Of Section 170DE(2) Of The Act

The applicant also contends that the termination of his employment contravened 170DE of the Act on the basis that it was harsh, unjust and unreasonable.  In support of this it was argued that the respondent should not have disciplined Mr Hurley in January 1994 given that it also intended to dismiss him should he be found guilty in the Magistrates’ Court.

I do not accept the submissions of Mr Parkinson that there has been any denial of natural justice.  On the contrary I believe that the applicant has been given a “fair go”.  It was open to the respondent to summarily dismiss the applicant on 31 December 1993 or 5 January 1994.  However it did not do so.  The respondent accorded Mr Hurley the benefit of the doubt given that he claimed provocation.  However on 17 June 1994 at Sunshine Magistrates’ Court Mr Hurley admitted to the charge and did not seek to defend it on the basis of provocation.

Was There A Breach Of Section 170CA Of The Act

I will deal with this point only briefly in so far as I do not accept the evidence of the applicant that the respondent has delayed in any way.  The length of time between the incident and the date of termination was through no fault of the respondent but rather through the process of the police investigation.

While Mr Hurley was being investigated by the police he was on full pay and there was no prejudice to him.  Furthermore, Mr Hurley did not notify his employer on the day of his conviction, on 17 June.  The employer did not find out until approximately three weeks later in a telephone conversation with Mr Wild.

Summary

In this case I have concluded that there was a reasonable investigation and that the investigation did not breach section 170DC of the Act.  Further in my opinion the action taken by the respondent in light of the material before it was reasonable.  It is reasonable for an employer, after thorough investigation and having reached the conclusion that there has been a significant altercation involving serious injury, that the protagonist/employee’s employment should be terminated.

Similarly, it was not harsh, unjust or unreasonable for the respondent to take the action that it did in the circumstances..  The actions taken were not harsh, unjust or unreasonable as the applicant was accorded both procedural and substantive fairness.

Order Of The Court

The order of the court is that the application be dismissed.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated:  28 February 1995

Representative for the Applicant:

Counsel for the Applicant:

Eugene Quigley of the Public Transport Corporation
Mr. P. Parkinson

Solicitor for the Respondent:
Counsel for the Respondent:

Mr G. Devries

Dates of hearing:

12 December 1994

Date of Judgment:

28 February 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1510 of 1994

BETWEEN:

AUSTRALIAN RAIL TRAM & BUS INDUSTRY
Applicant

AND

PUBLIC TRANSPORT CORPORATION OF VICTORIA
Respondent

MINUTES OF ORDER

28 February 1995  Judicial Registrar Fleming

THE COURT ORDERS THAT:

1. The application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.