Australian Rail Tram & Bus Industry Union (West Australian Branch) and Christopher John Kirkpatrick v Metropolitan (Perth) Passenger Transport Trust
[1994] IRCA 83
•11 Oct 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 131 of 1994
B E T W E E N:
AUSTRALIAN RAIL TRAM & BUS INDUSTRY UNION (WEST AUSTRALIAN BRANCH) AND CHRISTOPHER JOHN KIRKPATRICK
- Applicants
and
METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST
- Respondent
BEFORE: JUDICIAL REGISTRAR LINKENBAGH
DATE: 11 OCTOBER 1994
PLACE: PERTH
REASONS FOR JUDGMENT
This is an application in which the applicants are named as the Australian Rail Tram and Bus Industry Union and Christopher John Kirkpatrick and the application is essentially an application by Mr Kirkpatrick. He was employed as a full-time permanent Transit Operator, being a Bus Driver, by the respondent and he commenced work with the respondent on 27 February 1984. That employment was terminated on 2 May 1994. The respondent is a Statutory Body Corporate constituted under the Metropolitan (Perth) Passenger Transport Trust Act which is an Act of the West Australian Parliament.
The terms of the applicant's employment by the respondent are governed by the Metropolitan (Perth) Passenger Transport Trust Traffic Employees Award which is a Commonwealth award last dated 8 April 1990. The applicant's application is under section 170EA of the Act and it alleges a breach of section 170DE. The applicant seeks reinstatement or compensation under the provisions of section 170EE. The respondent relies on a reason connected with the applicant's conduct in terminating the employment and says that the termination was, because of that reason, within the terms of section 170DE(1).
The reason given by the respondent was that the applicant was guilty of dishonesty. The applicant argues that he is innocent of the allegations and that therefore the termination is harsh, unjust or unreasonable within the meaning of section 170DE(2).
I find the facts as follows:
(1)The applicant has a 10-year employment history and there is a detailed conduct record indicating no serious breaches by him in relation to conduct and no breaches at all since 10 April 1992.
(2)In the course of his duties as a bus driver the applicant issued tickets to passengers boarding the buses. The tickets were issued by an electronic machine, operated by the applicant, on each occasion when a passenger asked for a ticket and handed him the money to pay for the ticket. The electronic system contained a module which recorded the transactions through the machine. The tickets could be issued either by pressing buttons which issued a particular type of ticket or the applicant could program the machine to issue a standard ticket or a most commonly used ticket by means of the driver pressing what has been described as the joker button. That was a short cut method of issuing most common tickets on a particular route. Tickets were issued for travel in one, two or three zones and were valid for 2 hours. The driver received the cash and at the end of the day handed in to the employer at the depot the module from the machine for that day and the cash takings. The cash takings should equal the value of tickets sold as totalled by the module.
(3)In December of 1993 the respondent received a complaint from a passenger that that passenger had been issued with a ticket which indicated that the fare paid had been less than the actual cash handed to the applicant and that complaint initiated an inquiry by the respondent into the applicant's conduct.
(4)On 17 January 1994 Inspector Groves detected two undervalued tickets in the hands of passengers on a bus driven by the applicant. On both of those occasions the passengers had paid a fare of $2.30 and were issued with tickets having a face value of $1.30.
(5)On 2 February 1994 Inspector Lawler, in plain clothes and on instructions from the respondent boarded the applicant's bus and purchased a ticket for two zones, handing over cash of $1.90. The ticket which was issued to him was for one zone and had a face value of $1.30.
(6)On 4 February 1994 Inspector Lawler again purchased a ticket on a bus driven by the applicant. He paid a $2.30 fare and received a ticket with a face value of $1.30.
(7)Also on 4 February 1994 Mr Young, the acting depot manager, boarded the same bus on which Mr Lawler had purchased his ticket and he inspected tickets held by the passengers. He found three tickets having a face value of $1.30. The passengers holding those tickets assured him $2.30 had been paid in respect of two of them and $1.90 had been paid in respect of the other. Mr Young spoke to the applicant on the spot about the tickets and the applicant said, "How did that happen?"
(8)The respondent has extracted records of tickets issued by the applicant in the course of his duties between November 1993 and January 1994. Those records are extracted from the modules.
(9)The contract of service is governed by the Award. Clause 10 of the Award provides for a discipline procedure which is essentially a two-tiered process, the first tier being an investigation by a supervisor. He investigates and interviews and gives the opportunity for the employee to respond and provide such evidence as he wishes to provide. At that level there is provision for a union representative to be involved on behalf of the employee should the employee wish. The second tier of the disciplinary process is that the matter is reviewed by the Chairman of the respondent Trust if the employee indicates that he is aggrieved by the decision which is made at the first level.
(10)Clause 10 of the Award has been expanded by the Transport Standard Procedure for Discipline Offences which is a document which appears to have been first dated 12 December 1960 and has been amended and rewritten and reformatted since that time. That document is a document which has been agreed to between the employer and the Union to which the Bus Drivers belong. It is a comprehensive document and it makes it quite clear that dishonesty will more than likely result in dismissal. It sets out the likely consequences of various kinds of misconduct and includes an indication that issuing "wrong tickets" will result in a caution. It sets out the duties of investigating officers and the procedures which are to be followed in very clear and very plain English.
(11)The applicant was interviewed on 10 February and he denied any wrongdoing.
(12)On 15 February the applicant was notified, "You are to be charged with dishonesty in that it is alleged that you sold undervalued tickets", and he was informed as to the date of a hearing and was provided with some documents on which the respondent proposed to rely at the hearing.
(13)On 18 February 1994 there was a hearing attended by the applicant and a Union nominee and there is in the papers a comprehensive summary of the happenings at that meeting. The respondent made a finding that the applicant had been guilty of dishonesty and gave the applicant an opportunity to consider his position.
(14)The applicant indicated that he wished to exercise his right of review and he went on eight weeks leave. The review hearing took place on 29 April 1994.
(15)The applicant agrees that undervalued tickets were issued and his explanation is that he had personal problems which were distracting him at the time and that he must have inadvertently issued the tickets using the joker key, which was pre-programmed, when he should have keyed in the accurate details that were appropriate to the ticket requested by the particular passengers.
(16)On 2 May the respondent confirmed its decision to dismiss the applicant.
(17)The application was filed in this Court on 12 May and the final fact is that there has been no reference of the facts to the Police as far as the applicant is aware and there has been no Police action in relation to the conduct of the applicant.
The first matter to which I wish to turn is the issue of whether or not this application can properly be brought with any likelihood of success. That question is raised because the employer and the employee have come to an agreement regarding the appropriate discipline process applicable in this work place.
It is commendable that that discipline process exists. The question is, whether that discipline process existing and having been put into effect should bar the applicant from any further right of review. It is not an argument that goes to the existence of an adequate alternative remedy under section 170EB but simply an argument that, as it were, the applicant has had his day in the context of the contract of employment. If that were so then an application under section 170EA would be inappropriate. I do not agree with that view.
It is open to the applicant to challenge the actions of his employer under the new Act. As I said during the hearing, the discipline process which governs employees in the position of the applicant is to some extent unique in Australia in that he is a Public Servant, and in the Commonwealth and in most states Public Servants have the benefit of a Statutory disciplinary process which provides for an independent external review of internal disciplinary procedures and decisions. It is curious that those reviews available to other public servants in Australia are a review by an administrative as distinct from a judicial body, yet this applicant is able to come before this court and have a judicial review of the disciplinary procedure. An interesting question is raised as to whether this applicant would have had a remedy at all beyond the internal review process if section 170EA had not come into effect earlier this year. It is consistent with modern employment practice that there should be a form of external review in relation to public employees and one of the reasons for that is that the integrity of the Public Service must be secured at all times. It is generally thought advisable in the community for there to be watch-dogs on the administration of the Public Service; the interests of other officers need to be protected and the standards of the Public Service need to be maintained.
There is no suggestion in this case that there was any bias or impropriety in the manner in which the disciplinary procedure was carried out. As a matter of public policy it is essential, in my view, that there be an opportunity for external review of internal disciplinary actions in respect of public servants and as part of the need in the community to reinforce confidence in the administration of the Public Service.
It must be remembered that discipline is a management tool and that punishment is not an end in itself. Review of management procedures such as the implementation of disciplinary processes is desirable as a matter of public policy.
The next question raised during this hearing was whether the hearing should be limited to a review of the procedures which were followed and whether any consideration of the merits of the decision of the respondents should be excluded.
The respondent argued that unless the procedure was flawed or natural justice was denied there should be no power to review on the merits. I do not agree with that proposition. It is the practice in Australia that in all external disciplinary appeal bodies hearings are hearings afresh and the procedures under the Commonwealth Public Service Act are an example of that. In the interests of the administration of the Public Service, it makes sense that the review body should not be there having, as its role, the assessment of the manner in which the investigation was carried out.
The persons within the Public Service who are charged with the duties of doing disciplinary investigations have onerous responsibilities and it ought not to be the practice that they, in the exercise of their power, come under scrutiny. The review should be a review of the substance of the matter and it would be against public policy, in my view, for it to be otherwise where the Public Service is involved.
I find that in this instance the procedure was fair and that there was no denial of natural justice. I make that finding because the applicant did not argue at all against that proposition.
Certainly if the procedures had not been fair and if natural justice has been denied then those are factors which are relevant in the determination of whether the decision was harsh, unjust or unreasonable and that principle is confirmed by the Western Australian Industrial Appeal Court in the Shire of Esperance v Mouritz, which was a decision of the Full Court of that Court on 20 March 1993. My finding that the procedure was in fact fair and that there was no denial of natural justice also satisfies the obligations of the respondent under section 170DC of the Industrial Relations Act 1988, being the obligation to give the employee a fair hearing.
I was referred in the course of the hearing to two cases which were determined by the Full Court of the Federal Court earlier this year, being Byrne v Australian Airlines Limited and Frew v Australian Airlines Limited which is reported in 1994, 52 IR at page 10. At page 63, Gray J looks at the meaning of the words, "harsh, unjust and unreasonable", and he confirms that procedural matters are not all that need to be looked at. He says:
"It would be harsh, unjust and unreasonable to dismiss an employee for an offence which she or he had not committed. The Court is required to determine whether as a matter of fact the cause which the employer advanced as the ground for dismissal existed."
His Honour says that that must be determined on the evidence which is before the Court at the time of the hearing, not the evidence which was available to the employer at the time the employer made the decision.
Turning to the merits of this case, the only reason which the respondent advanced for the termination is the finding by the respondent that the applicant had been guilty of dishonesty. Dishonesty is a word which has a very, very broad spectrum. The standard of proof in these proceedings is the civil standard on the balance of probabilities. Under section 170EDA, the employer has the onus of proving that the reason is valid and the applicant the onus of proving that it was not valid.
The respondent's case is very simple. It relies firstly on the fact of issue of the tickets which I have outlined. There is no doubt, and the applicant agrees, that the tickets were issued for less money than was actually paid. I have attempted to look in the evidence at what happened to that money, given the respondent's assertion that the applicant pocketed the difference. The respondent produced records of the money that was handed in by the applicant at the end of each day. On 17 January the surplus of cash over value of tickets issued was $2. The money handed in on that day at the conclusion of his shift by the applicant was $4.95 more than the total amount indicated by the module.
On 2 February the one ticket should have resulted in a surplus of 60 cents and the applicant handed in the same amount of money which was indicated on the module. On 4 February the four tickets in question should have resulted in surplus money of $3.60, except that on that day the inspector who spoke to the applicant asked the applicant to issue tickets to make up that $3.60. There should not have been any overs or unders on that day and there were not.
On 17 January the applicant did not know that he was under surveillance and his money was plus $4.95 for the day and plus $3.05 for the week. On 2 February also he did not know that the inspector was on board the bus. On 4 February he did not know that the inspector was on board initially but knew before he handed in his money that he had been under surveillance and he had the opportunity, on his own evidence, between the time he finished his shift and the time he handed in his money, to make up the money had he been minded to do so, but there is no evidence that he did.
The evidence on the facts therefore could be seen to be equivocal. It tends, on the balance, to indicate that on 2 February and 4 February, there may have been an element of dishonesty, but whether that is sufficient, taking everything into account, is the question that I must answer.
The second leg of the respondent's argument is that the records extracted by the respondent show trends in the applicant's activities which indicate that he was manipulating the ticket system.
The respondent says firstly that the applicant had a propensity to issue one zone tickets on express buses where no other driver did so, as the express buses always travelled through more than one zone.
The respondent also says that the records indicate that the applicant sold more one zone tickets than other drivers on similar services, the suggestion being that he would issue a one zone ticket when he was paid for more than one zone and put the difference in his pocket. The respondent also says that the records show that the applicant issued more one zone tickets on the last run of the day than did other drivers and suggests that he did that because there was less chance of a passenger noticing any irregularity in his ticket at the end of the day because not many passengers would be using their ticket to travel on to another destination on a different bus within the time allowed by the ticket.
There is always a danger in drawing conclusions from records such as this and in giving them the title that these figures have been given, as "statistics", in the absence of any expert evidence or any comprehensive evidence as to the selection of those records and other matters that might indicate reliability of the conclusions drawn.
I am also aware that the respondent did not see fit to take any Police action in respect of the information that it gained. It does not have to do so and in applying the criminal standard to the facts as I find them, the respondent may well have had some difficulties in success in any Police action.
The applicant says that he had no guilty intent, that he was distracted by personal problems which have not been particularised in any great detail. I note that he did not take any leave or seek any assistance for himself in relation to any effect that his personal problems were having on his work at the time. And as was pointed out by the respondent, the effect of personal problems on his work performance was not reflected in the recorded evidence of unders and overs or the issue of tickets. That argument however has the same problems as the other "statistical" evidence. The applicant says that he often took one zone passengers on express buses, even though strictly that was not part of his instructions. In the witness box he described his job as routine and he said that there was "nothing demanding about the job". The applicant also informed the Court in response to questions from the bench that there were work practices at the depot pursuant to which the drivers would, from time to time, fix up unders and overs and he said that he did that himself from time to time so as, essentially, not to draw his employer's attention to the fact that he was substantially over or substantially under in his takings.
It is always worthwhile to look for a motive when a person is accused of a crime. The respondent argued that a motive was not relevant. The existence of a motive can tend to indicate perhaps whether there was an intention to commit the crime. The absence of an apparent motive can put a question mark over the possibility that a crime has been committed. In this case, no motive has been advanced and, in fact, the applicant argues what is almost a negative motive, or factors tending to show that he was not motivated to steal, and that is because of his desire to maintain his job security and his income and also because of the small amount that was at stake in what he is said to have stolen.
His explanations are, nevertheless, vague and unresponsive and confused. The evidence is very difficult to weigh up. The respondent could have made its own task a lot easier by biding its time and, as it were, gaining further evidence against the applicant, but it exercised its duty as a responsible employer and elected to inform the applicant at a very early stage and before there was as conclusive evidence as there may have been later on, of the suspicions that it had about his actions.
I find, on the balance of probabilities, that the applicant was guilty of a dereliction in his duty in that he, on his own evidence, failed to take the necessary degree of care in the issuing of tickets. He admitted that he conversed with passengers at times and on at least one occasion when he was engaged in issuing a ticket to another passenger. He picked up one zone passengers on express services, contrary to his instructions, and he indicated an attitude in the witness box which is not the ideal attitude that one would hope for in a person who has had the years of experience he has had in the Public Service.
There is a question mark over the statistical evidence and a factor which is very relevant is the expectation in the community that persons employed by the public purse should exhibit at all times a high standard of integrity in the performance of their duties. I cannot find, however, that the applicant is guilty of the degree of dishonesty which the respondent has asked me to find on the evidence before me and I therefore find that the termination of his employment was contrary to the Act.
I then have to look at what remedy is appropriate. For the reasons I have given as to the applicant's attitude to his work and the carrying out of his duties, and because it would appear to me that the respondent, as a public employer, must at this stage lack confidence in the ability of the applicant to carry out his duties and lack trust in him in the handling of money, reinstatement would be impractical.
Another consideration that I have had is the question of the delay between the time the applicant's employment was terminated and the date of the hearing, but I am of the view that that delay is not a significant factor in my making the determination as to whether reinstatement would be workable or not. I propose to make an order for compensation and I therefore will look at the affidavit which has been handed up today. The provision for compensation, which is generally within my discretion, is set out in section 170EE.
The application was filed before the amendments to that section on 30 June 1994, but the principles are the same in my view. Subparagraph (3) of the new section 170EE indicates that in working out the amount of compensation regard should be had to the remuneration that the employee would have received or would have been likely to receive if the employer had not terminated the employment but that it must not exceed certain limits, and the limit that is relevant is 6 months pay. That limitation did not apply before 30 June 1994.
The applicant has told the court in evidence that he has not actively sought permanent alternative work because he was awaiting the outcome of this hearing and he has been in receipt of Social Security benefits for 16 weeks at $268 a week, being a total of $4288. He has done some casual bus driving of 6 days in August and 6 days in September which have paid him a total of $600. The amount that he has lost is set out in his affidavit sworn on 11 October 1994 on the basis of his income as a Bus Operator at $622 per week, that is the $9400.
The gross loss that the applicant suffers is in the order of $10,400. The applicant's representative argues that he is limited to $10,000 and that argument is based on an interpretation of section 376 of the act as to the powers of Judicial Registrars. Subparagraph (1)(a) of section 376 empowers Judicial Registrars to hear proceedings in the court in relation to a claim for an amount of not more than the amount specified in the rules which is, for the time being, $10,000. Subparagraph (b) provides an alternative jurisdiction for Judicial Registrars to hear unlawful termination claims.
My view is that subparagraph (b) confers on Judicial Registrars all the Court's power in relation to the termination of employment and the limit therefore is the limit set out in section 170EE(4) of the act, which is now $30,000. My view is that section 376(1)(a) is independent of (b) and relates to money claims or other claims not being unlawful termination claims.
I return to the question of the exercise of my discretion as to the amount of compensation. The respondent does not argue strongly against the amount of $10,000 which is suggested by the applicant as an appropriate amount of compensation.
Taking all the circumstances into account, including the applicant's conduct and the matters that have come to my notice in the course of the hearing, I determine that an appropriate amount of compensation in all the circumstances would be $7000. And the orders that I make will be:
(1)That the termination of the employment of the applicant, Christopher John Kirkpatrick, on 2 May 1994 contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
(2)That the respondent pay to Christopher John Kirkpatrick the sum of $7000 by way of compensation.
I certify that this and the 17 preceding pages are a true copy of the reasons for judgment of Judicial Registrar Linkenhagh.
Associate:
Representative of the Applicant: Mr A Dzieciol
Australian Rail Tram
Bus Industry Union
(West Australian
Branch)
Solicitors for the Respondent: Ms V Bladen
Counsel appearing for the Respondent: Michell Sillar Mcphee
Date of hearing: 10 October 1994
Date of judgment: 11 October 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 131 of 1994
B E T W E E N:
AUSTRALIAN RAIL TRAM & BUS INDUSTRY UNION (WEST AUSTRALIAN BRANCH) AND CHRISTOPHER JOHN KIRKPATRICK
- Applicants
and
METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST
- Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR LINKENBAGH
DATE: 11 OCTOBER 1994
PLACE: PERTH
THE COURT ORDERS THAT:
The termination of the employment of the applicant, Christopher John Kirkpatrick, on 2 May 1994 contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
The respondent pay to Christopher John Kirkpatrick the sum of $7000 by way of compensation.
NOTE:Settlement and entry of orders is dealt with by Order of the Industrial Relations Rules
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act 1988 - reason for termination alleged to be dishonesty of employee - internal disciplinary procedure in the work place - hearing on the merits of the case - dereliction by employee in his duty but not dishonesty - compensation.
INDUSTRIAL RELATIONS ACT 1988, ss 170DC, 170DE, 170EA, 170EDA, 170EE, 376
Bryne and Frew v. Australian Airlines Ltd (1994) 52 IR IO
Shire of Esperance v. Mouritz (unreported, Full Court of Western Australia Industrial Appeal Court, 20 March 1993.)
AUSTRALIAN RAIL TRAM & BUS INDUSTRY UNION (WEST AUSTRALIAN BRANCH) AND CHRISTOPHER JOHN KIRKPATRICK -v- METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST NO. WI 131 of 1994.
Before: Linkenbagh JR
Place: Perth
Date: 11 October 1994
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