Cornish, J.M. v Australian National Railways Commission

[1993] FCA 979

JOHN MEREDITH CORNISH v. AUSTRALIAN NATIONAL RAILWAYS COMMISSION
No. SAG4 of 1993
FED No. 979/93
Number of pages - 12
Administrative Law
(1993) 47 FCR 577
(1993) 35 ALD 407 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
VON DOUSSA J

CATCHWORDS

Administrative Law - judicial review - whether a decision that a locomotive driver was not to resume duty in any capacity involving safe working responsibilities was within power - whether the decision was made for improper purposes - whether the decision was vitiated for lack of procedural fairness.

Australian National Railways Commission Act 1983, ss.37, 38, 42

Railway Services Rules, rr.159, 162, 177

HEARING

ADELAIDE, 12 August 1993

#DATE 22:12:1993

Counsel for the Applicant: Mr P Heywood-Smith

Solicitor for the Applicant: Messrs Johnson Withers

Counsel for the Respondent: Ms S Singh

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the respondent, the Australian National Railways

Commission, made on 7 July 1992 that the applicant not be permitted to resume duty in any capacity involving safe working responsibilities and that he cease retraining as a locomotive trainee be quashed.

2. The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

VON DOUSSA J This application seeks an order for review of a decision made on 7 July 1992 by Mr A.R. Neal, General Manager, Rail Transport, on behalf of the respondent ("the Commission") that the applicant not be permitted to resume duty in any capacity involving safe working responsibilities, that his retraining as a locomotive trainee cease forthwith and that he report for duty as a Helper, Metal Tradesman.

1. It is necessary to refer to the background facts to understand the grounds on which the order for review is sought. The applicant was born on 28 November 1950. He was first employed by the Commission as an Engineman on 20 March 1972, and until 3 August 1991 had continued to work out of Port Augusta in that capacity.

2. On 3 August 1991 he was involved in a serious incident near Wynbring on the Trans Australia Railway. The applicant was at the controls of goods train 5PA1 when it failed to stop at Wynbring as required by the train order governing its movement. The train travelled at speed into the Wynbring-Lyons section of the track without authority. A head-on collision with an oncoming goods train was narrowly averted about 7 km into that section. Fortunately the applicant realised he had travelled through Wynbring and braked heavily at about the same time as the oncoming train observed the approaching headlights of 5PA1 and also braked. The trains stopped a few hundred metres apart. The applicant then reversed 5PA1 - also without authority - at speed back to Wynbring. The applicant failed to report the incident forthwith as required.

3. The incident was not reported until 7 August 1991. The applicant was immediately removed from safe working duties along with others who had differing degrees of responsibility for some or all of the breaches of operating rules which had occurred. On 15 August 1991 the applicant was suspended from duty following a Board of Inquiry report. Disciplinary action was then taken. The applicant was charged with misconduct in that he was in serious breach of four Common General Operating Rules. He did not deny the charges. On 23 August 1991 the following penalty was imposed, namely that he be permanently removed from Locomotive Driver duties and regressed to the position of Trades Assistant in the Port Augusta Workshops. His personnel file was also endorsed "not to be re-employed in any train or track maintenance duties that involve train safeworking". The decision to impose this penalty was made by Mr Neal.

4. The applicant appealed against the penalty of regression. The appeal was instituted under s.42 of the Australian National Railways Commission Act 1983 ("the ANRC Act") and under the Boards of Appeal By-law (Disciplinary Appeal Boards). On 15 January 1992, by a majority decision, the appeal was upheld by a Disciplinary Appeal Board, and the following decision was substituted:
   

"Charges 1 and 2

(a) Reduced in grade to locomotive assistant (unqualified) with an appropriate reduction in wages appropriate to his classification according to his progression through locomotive training, for a period commencing 1 November 1991 and ending on 31 October 1993. If the employee is suitably requalified then he shall recommence duties as an engineman (Locomotive Driver Class 1 grade) on 1 November 1993.

(b) The employee shall be transferred to such position as may be mutually agreed between him and the Regional Manager North, for the period commencing 1 November 1991 and ending on 31 May 1992, which position shall not involve any locomotive driving duties.

Charge 3

(c) Fined $200.00 for exceeding the maximum speed limit when pushing back.

Charge 4

(d) Fined $400.00 for failing to report serious breaches of the Common General Operating Rules.

NOTE: Twelve months to pay any fines imposed."

1. On 1 June 1992, after the period referred to in paragraph (b) above expired, the applicant commenced retraining as a locomotive driver at Port Augusta. The training course he was required to undertake was that which a new employee seeking qualification as a locomotive driver for the first time would undertake. The first steps in that process were for a trainee to pass a first aid test, then to pass a safeworking training programme which is normally completed under close tuition over 15 days. After satisfactory completion of these two steps, a trainee moves into a structured three phase training programme which is described in detail in a document entitled Locomotive Driver Training Programme. This document envisages that many units to impart specific skills will be studied, and that experience will be gained over 36 months as the trainee progresses from the classification of Locomotive Trainee (Unqualified) to Locomotive Driver Class 1. Changes in the training programme since this document was compiled by the respondent's management in conjunction with the Australian Federated Union of Locomotive Enginemen now permit the training to be completed over 15 months (cf paragraphs (a) and (b) of the substituted decision). The introduction to the Locomotive Driver Training Programme states that applicants to the programme "will be selected through an interview and relevant assessment procedures. Applicants must successfully pass a medical examination...The Trainee will be required to successfully complete and pass both theory and practical assessments which will be conducted in a classroom or 'on track' by an Operations Inspector."

2. There is no evidence that the applicant successfully passed the first aid course, but it may be assumed that he did. It was the applicant's understanding at the time that he satisfactorily completed the safe-working training programme on or about 24 June 1992. It is common ground that he was told by the training officer at the completion of the programme that he had passed. The applicant then undertook a three day Air Brake course. Again he was told that he had passed. He was awaiting a direction to start the next training unit - Land Orientation - when he was notified of the decision made on 7 July 1992 which is now under challenge.

3. That decision was made by Mr Neal in Adelaide. He had been following the case of the applicant very closely since the incident on 3 August 1991. Reasons were given pursuant to s.13 of the Administrative Decisions (Judicial Review) Act for the decision. They are too long to set out in full. Mr Neal explained that the incident on 3 August 1991 is viewed by the Commission as a very serious one because the deaths of two crew and enormous property damage were only narrowly avoided. That explanation could not be, and has not been, challenged. Breaches of the operating rules which prohibit unauthorised entry of a train on to a track are treated by the Commission as the most serious of all breaches of safe-working conditions on account of the potential for loss of life and injury to persons and property. Whilst Mr Neal was conscious of the respondent's duty under sub-s.42(6) of the ANRC Act to "take such action as is necessary to give effect to a decision of a Disciplinary Appeal Board", his consideration of the past record of the applicant, and of oral and written reports from the safe-working supervisor at Port Augusta, Mr McKell, who had supervised the applicant's safe-working training in June 1992, and from the Acting Production Manager, Mr Martin, led him to conclude that the applicant was a safety risk. The Commission has a statutory duty (and one could add, an obvious moral obligation) to conduct its operations safely. Section 18 of the ANRC Act reads:
   

"18.(1) The Commission shall conduct its operations safely, efficiently and, subject to sub-section 19(3) and 55(3), in a manner that accords with sound commercial practice.

(2) Nothing in sub-section (1) shall be taken to impose on the Commission a duty that is enforceable by proceedings in a Court."

Mr Neal concluded:

"Accordingly on the basis of the information I had received from Mr K. Martin and past breaches of safe working regulations committed by Mr Cornish, I considered that to allow him to resume duty in any capacity involving safe working responsibilities would conflict with the duty of the Commission to conduct its operation safely, efficiently and in a manner that accords with sound commercial practise (sic). This is entirely consistent with procedures applied in AN and other railway systems with which I have been associated."

The past history of the applicant to which Mr Neal referred included two other incidents when a train under the applicant's control had entered a section of track without authority. The first incident was on 15 March 1977 when he drove a train through a siding at O'Malley where he was required to stop and receive a further order before proceeding. A Board of Inquiry found that he was not concentrating on the job at hand. On that occasion he was found guilty of misconduct and regressed for three months. A report at the time referred to a number of aspects of the applicant's training and performance that raised questions about his ability to perform the responsibilities of a locomotive driver. It was noted that an Inspector involved in his training had reported in most adverse terms about his driving ability. That incident was, however, many years ago. The second incident had occurred on 3 March 1991 in railway yards at Port Augusta. A train was allowed to enter a section of track at slow speed. A Board of Inquiry found that the crew, including the applicant, had allowed their attention to be distracted. Again there was a finding of misconduct. A fine of $100 was imposed, and a "caution and warning" was given.

1. The reports received by Mr Neal concerning the applicant's safe-working training in June 1992 indicated to Mr Neal that the applicant did not understand basic aspects of a locomotive driver's job even though he had been through a routine periodical re-training programme in March 1991. Mr McKell had reported that it took the applicant 17 days under close training to complete a course that should have been completed in 15 days. Mr Neal considered it particularly significant that someone who had worked as a locomotive driver for a long time should take so long. Mr Neal considered that the reports demonstrated that the applicant lacked the capacity to perform the duties of a locomotive driver in a safe manner.

2. Against this background I turn to the grounds on which the order for review is sought. It is convenient to take three of the four grounds together:
   

(a) The decision maker did not have jurisdiction.

(b) The decision was not authorised by the ANRC Act.

(c) Alternatively the decision was an improper exercise of power.

Under these grounds it is argued that the statutory duty of the Commission after the Disciplinary Appeal Board handed down its decision on 15 January 1992 was to give effect to that decision. The decision of Mr Neal to prevent the applicant resuming duty in any capacity involving safe-working responsibilities, and to cease his retraining, it is said, reversed that decision. That reversal was beyond power (no jurisdiction) and was contrary to sub-s.42(6) of the ANRC Act. It is argued that the obligation imposed by s.18 of the ANRC Act to conduct the respondent's operation safely did not provide any relevant power. It is contended that the only sources of power for downgrading a permanent employee, otherwise than for medical reasons or age, was through the discipline provisions of the Railway Services Rules ("the RSR"). This is so because the RSR r.159 defines "misconduct" as "a failure of the employee to fulfil his duty as an employee". It is contended that this definition covers a case such as the present, and accordingly, under the RSR, removal from duties involving safe working responsibilities could only follow a formal procedure requiring the laying of a charge, a hearing, and possibly an appeal before a Disciplinary Appeal Board.

1. The argument that there was an improper exercise of power is put in two ways. It is contended that Mr Neal made his decision in bad faith motivated solely by a desire to overrule the Disciplinary Appeal Board's decision of 15 January 1992, and that the decision was so unreasonable that no reasonable person could have so exercised the power.

2. These two arguments can be at once dismissed. I accept the evidence of Mr Neal that he was not so motivated. He very frankly acknowledged his surprise and displeasure at the decision of the Disciplinary Appeal Board, one that he thought failed to have regard to the paramount need to ensure the safety of life and limb. Nevertheless I accept his evidence that he accepted the decision (after receiving legal advice that the respondent could not challenge the result) and endeavoured to implement it, as he had done in the past with other decisions of Disciplinary Appeal Boards. I accept his evidence that it was his understanding of the performance of the applicant during the safe-working training, taken in conjunction with his past history, that caused him to conclude that the applicant was a safety risk in June 1992. I reject the submission that Mr Neal acted in bad faith. His evidence and explanation in the witness box established quite the contrary position. I also reject the submission that the decision, assuming there was power, was unreasonable in the sense described in Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223 at 229-233. The material relied on by Mr Neal, assuming that that was the only relevant information upon which his decision should have been based, could reasonably lead to the factual conclusions which he reached. It will be necessary when considering the fourth ground on which review is sought, namely that there was a denial of natural justice, to consider whether possibly there was other information which should have been before Mr Neal.

3. Mr Neal commented in his evidence that he now believes that the legal advice which the Commission received that it could not challenge the decision of the Disciplinary Appeal Board was erroneous. I am satisfied that that belief did not motivate him to make the decision which he did. It is unfortunate, however, that the respondent was advised against seeking to review the decision of the Disciplinary Appeal Board, as that would have provided the opportunity to test the correctness in law of the principles applied by the Board. The majority of the Board stated that in reaching its conclusion on the appeals by the several persons charged following the incident on 3 August 1991:
   

"...two issues are paramount:

(i) whether the Australian National Workshops at Port Augusta are an appropriate venue for locomotive drivers to be transferred to work during a period of punishment;

(ii) whether operational crews should be permanently removed from their positions when serious breaches of railway safeworking occur."

The reasons for decision of the majority show that these two issues were identified as they went to the degree of personal hardship which the employees would suffer as the result of the penalties imposed.

1. The majority went on to say that the notation that the applicant was "not to be re-employed in any train or track maintenance duties that involve train safeworking" was beyond the powers to impose penalty contained in the RSR. In particular the majority endorsed the view that r.162(1((d) of the RSR which empowers the Head of the Branch or the Commission "to suspend the employee from duty and later remove his suspension" cannot be used to justify a permanent "disqualification".

2. The reasons of the majority effectively deny the issue of safety of the operation of the railway as being a matter of paramount importance in fixing penalty; and deny that the Commission has a power under the Discipline provisions of the RSR to take an employee permanently off duties that involve safe working conditions.

3. The Commission is a legal entity established by statute. The governing statute, the ANRC Act, must be the starting point from which to ascertain the powers of the Commission, and its delegate Mr Neal. Part II of the ANRC Act (ss.4 to 23) deals with the functions, powers and duties of the Commission. Section 4 continues in existence the Commission which had been established under earlier legislation. By s.5 the functions of the Commission include the function of providing specified railway services for the carriage of passengers and goods. The Commission is vested with a broad range of general powers under s.6, including powers to enter into contracts and to do anything incidental to its powers. Further more specific powers are enacted in ss.6A, and 8 to 16. Section 18, set out above, imposes general duties on the Commission, including the duty to conduct its operations safely.

4. The exercise and performance of these functions, powers and duties is achieved through Part III (ss.24 to 34A) which provides for the constitution of the Commission, the appointment of Commissioners, and the holding of meetings of the Commission. Part IV (ss.35 to 48A) provides for the staff of the Commission. Importantly ss.37 and 38 provide:
   

"37.(1) The Railway Service established under the Australian National Railways Act 1917 is continued in existence.

(2) The Commission may appoint such officers, and engage such employees, as it considers necessary for the performance of its functions and duties and the exercise of its powers.

(3) The Railway Service consists of the persons appointed as officers, or engaged as employees, of the Commission. 38.(1) The terms and conditions of service or employment (in respect of matters not provided for by this Act) of the employees of the Commission are such as are determined by the Commission by instrument in writing.

(2) The terms and conditions of service and employment that may be determined under subsection (1) include terms and conditions specifying:

(a) the grounds on which employees, or employees included in a class of employees, may be charged with misconduct;

(b) the manner in which charges of misconduct may be dealt with; and

(c) the kinds of action that may be taken in relation to employees against whom charges of misconduct are established.

(3) ... (not relevant)

(4) ... (not relevant)

Following sections of Part IV deal with Promotion Appeal Boards and appeals against promotions or directions to act; Disciplinary Appeal Boards and appeals against decisions made in cases of misconduct; long service leave; and special provisions relating to transferred South Australian and Tasmanian employees, none of which is relevant considering the powers of the Commission which Mr Neal purported to exercise, apart from sub-s.42(6) earlier set out.

1. Part V (ss.54 to 67) deals with finance, and Part VI (ss.67A to 80) has a number of miscellaneous provisions including powers to make by-laws and regulations. The Court has been informed by counsel that there are no by-laws or regulations relevant to the present application.

2. Whilst the Commission is generally empowered to enter contracts and to do anything incidental to its powers, the powers of the Commission in relation to contracts of service with its employees is specifically dealt with in ss.37 and 38. The requirement of sub-s.38(1) that the terms and conditions of service of employment (in respect of matters not provided for in the ANRC Act itself) of the employees of the Commission "are such as are determined by the Commission by instrument in writing", in my opinion, leaves no room for the implication of additional powers under some broad notion of "management discretion" to be found either in the general law of master and servant, or in the general powers in the ANRC Act to enter contracts and manage the operation of the Railway. The Commission has by instrument in writing determined terms and conditions of service and employment. The relevant determinations comprise the RSR. The comprehensive nature of the RSR indicates that they are intended to be exhaustive, subject however to RSR r.4(4) which provides:
   

"Where there is an inconsistency between these rules and an award or law relating to an employee, the award or law, as the case may be, shall prevail to the extent of the inconsistency".

and to RSR r.12 which provides:

"Any appointment to the Railway Service shall be made subject to these rules, the workshop rules and any relevant award, and every employee shall at all times be bound by these rules".

1. In my opinion the source of power to justify Mr Neal's decision, if it is to be found at all, must be found in the terms and conditions of employment contained in the RSR made under sub-s.38(1).

2. Part II of the RSR deals with applications for employment, and Part III with appointment of employees. There are in RSR r.15, provisions requiring an applicant for appointment to pass medical, visual, educational and other examinations and tests.

3. Part IV of the RSR lays down requirements as to medical examinations and physical standards. RSR r.29 provides that no person shall be permitted to remain in the Railway Service if his vision, colour sense and hearing are not of the standard prescribed in respect of appropriate classes of employment. Employees engaged in train and shunting movements are required periodically to submit to and pass medical and visual examinations and tests. Failure to meet certain medical and physical standards prescribed in RSR r.39 may, in the discretion of the Commission render a locomotive engineman or trainee locomotive engineman (amongst others) permanently unfit for duties of his classification. Other ailments are by RSR r.55 "prescribed complaints" and where a medical officer certifies that an employee is unfit for duty because of a prescribed complaint the employee shall not resume duty until he is again certified fit and passes a medical examination. These provisions of Part IV are obviously intended to achieve acceptable standards of safety in the operation of the Railway Service.

4. Part X of the RSR deals with "Reduction in Grade or Class, Transfer, Re-arrangement of duties, termination of employment and Resignation". Rule 177 in that Part provides:
   

"(1) The Commission may abolish any office or position or reduce the number of its employees, including permanent employees, and in such cases it may terminate the employment of any of its employees and make such reduction in classification or class or other adjustment as it considers necessary.

(2) The Commission may, in its discretion, transfer an employee to another locality, office, position or duties and the employee shall accept the transfer.

(3) Subject to rule 180 where, in the opinion of the Commission, an employee is unable to perform his regular duties owing to permanent ill health, defective eye sight, colour perception or hearing or any other cause, the Commission may re-arrange his duties as it considers necessary, or retire him in accordance with rule 307."

Rule 177 empowers the Commission in a range of ways to take an employee, including a permanent employee, off duties which involve safe working responsibilities if mental or physical incapacity renders the employee unsuitable for that work.

1. The exercise of r.177 powers in the case of mental or physical incapacity could be expected, in many cases at least, to cause hardship to the employee concerned, but the RSR recognise that safety is a matter of paramount importance. It would be extraordinary if in the case of misconduct, safety were not a matter of paramount importance to be taken into account in fixing an appropriate penalty.

2. In cases of misconduct, it will usually be appropriate for the relevant decision-maker to arrive at a penalty which fairly balances the seriousness of the misconduct, and the need for the penalty to act as a deterrent to the particular employee as well as a deterrent by way of example to others from departing from the standards of conduct required of employees in the Railway Service, against the hardship and other impacts which the penalty will have on the particular employee. But there may be exceptional cases where the nature and seriousness of the conduct of the employee indicates such a risk to safety in the future that the protection of others must take priority over the personal circumstances of the employee concerned. By analogy, it is a recognised principle of sentencing offenders in the criminal courts that in an appropriate case the protection of the public from further transgressions by the offender is a factor that may require a long custodial sentence notwithstanding the personal hardship which the offender will suffer.

3. The powers of the Commission or the Head of the Branch where misconduct is established under Part IX are extensive: see RSR r.162(1). They range from counselling of the employee to termination of employment. The range of penalty powers include the doing of any, or an appropriate combination, of the following:
   

"...

(d) suspend the employee from duty and later remove his suspension;

...

(f) reduce the employee to a lower class or classification with or without a corresponding reduction in salary, wages, allowances, privileges or concession, either indefinitely or for a specified period;

(g) transfer the employee to another locality, office, position or duties, either indefinitely or for a specified period; or

(h) terminate the employment of the employee."

By RSR r.162(2) the powers in paras.(f) and (h) shall not be exercised by the Head of the Branch. The penalties initially imposed on the applicant were authorised by Mr Neal acting as a delegate of the Commission, and not by the Head of the Branch. Even if para.(d) does not extend so far, paras.(f) and (g) would appear to be of ample width to authorise the initial penalty which was imposed on 23 August 1991. However that is not a question before the Court. As stated earlier in these reasons, no steps were taken by the Commission to have the decision of the Disciplinary Appeal Board reviewed, and the Commission now acknowledges that by s.42(6) of the ANRC Act it is bound to take such action as is necessary to give effect to the decision.

1. The decision now under review made by Mr Neal was not a decision made under the discipline provisions in Part IX of the RSR. The Commission seeks to uphold the decision as one made under "the general administrative power that an organisation like Australian National Railways Commission would have in any event to conduct its own affairs" (to quote the submission of counsel for the Commission). I have already indicated my opinion that the terms of s.38(1) of the ANRC Act leave no room to imply powers of this kind beyond those which are contained in the relevant determination of the Commission, that is in the RSR. The powers of the Commission under RSR r.177, set out above, are very widely expressed and would appear wide enough to authorise the decision under review, but counsel for the Commission disclaimed reliance on r.177 as that was not a rule which Mr Neal said he relied upon at the time when the decision was made. Absent reliance on r.177, I am unable to find any other power in the RSR, outside the discipline powers, which would authorise the decision by Mr Neal to regress the applicant.

2. On the basis of the submissions made by counsel, it must follow that the decision under review has not been shown to be one within the source of power relied upon by the Commission.

3. In the exercise of the powers of the Commission under the terms and conditions of employment of employees as determined under s.38(2) of the ANRC Act, the Commission will be guided by the general duties imposed on it by s.18, including the duty to conduct its operations safely, but I agree with counsel for the applicant that s.18 is not an independent source of power which could authorise the decision under review.

4. On issues dealing with the RSR, I reject the submission of counsel for the applicant that, except in cases of mental or physical incapacity, an employee can only be removed from duties involving safe working responsibilities by formal disciplinary proceedings under Part IX of the RSR. Part IX is concerned with misconduct that is "a failure of the employee to fulfil his duty as an employee": RSR r.159. RSR r.160 then goes on to define situations when an employer shall be taken to have failed to fulfil his duty as an employee. Those situations concern conduct which has occurred. Part IX concerns conduct which has already happened, and for that reason attracts the disciplinary provisions. Part IX can have no application in a case like the present where the Commission seeks to reclassify an employee on account of future risks to safety on account of the events which have not happened but can reasonably be foreseen as real possibilities.

(d) Natural justice
31. The remaining ground on which the applicant seeks review is that the decision of Mr Neal made on 7 July 1992 is vitiated because the applicant was not afforded natural justice in the decision making process. In particular he was given no warning that the continuation of his training was under review, and he was given no opportunity of commenting upon the aspects of his performance which were said to indicate that he would provide an unacceptable risk to safety if he were to resume duty as a locomotive driver. This argument assumes that the decision was made within power.

1. It is now established that there is a presumption that the exercise of statutory power is conditional upon the observance of the rules of natural justice: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 591. In Annetts v McCann (1990) 170 CLR 596 Mason CJ, Deane and McHugh JJ said at 598:
   

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

The legitimate expectation of the applicant following the Disciplinary Appeal Board decision, and his acceptance into the retraining programme, was that he could progress by passing the training assessments to the position of a locomotive driver. The decision under review destroyed that expectation and his chances of promotion into classifications which attract more beneficial conditions. Assuming that the statutory power existed to withdraw the applicant from all duties that involved safe working responsibilities, procedural fairness required that the applicant be informed that his position and future classifications were under review, that he be told the reasons why this was so, and that he be given an opportunity to answer matters raised against him. None of these matters occurred. There is no information before this Court to suggest that these steps would have caused significant administrative difficulty, or for any other reason could not have occurred. In my opinion this is a plain case where procedural fairness did not take place, and for this reason the decision under review would be set aside even if there were no question as to the power to make the decision.

1. This is not a case where it can be said that the denial of procedural fairness could have made no difference to the result: cf Fares Rural Meat and Livestock Co. Pty Ltd v Australian Meat and Livestock Corporation and Others (1990) 96 ALR 153 at 170-171. The information which finally decided Mr Neal to make the decision which he did was based on oral and written reports from others. The written report from Mr McKell stating that whilst the applicant took 17 instead of 15 days to complete the safety test went on to say that upon completion the applicant "was fully conversant with all the safe working given. It is my considered opinion he is now a fully qualified safe working employee." In the circumstances, had the applicant been given the opportunity he may have offered an explanation for the time which his training course took, and for other criticisms made of his performance by others that would have put a different complexion on the situation. Before this Court the applicant put forward explanations. It is not for this Court to assess the weight and relevance of those explanations. That would be a matter for the Commission or its delegate. It is sufficient to illustrate that the denial of natural justice was not a matter of no consequence, that there was information which bore on matters relevant to the decision which the applicant would have wished to put and have considered.

2. For these reasons the decision under review will be quashed. I do not think it is necessary or appropriate to make any consequential orders. The quashing of the decision will mean that the decision of the Disciplinary Appeal Board which directed retraining will continue to operate unless a further decision of the Commission intervenes. In view of the disruption to the proposed retraining programme which has occurred as the result of the decision which is now quashed, the dates nominated in the decision have passed. However the decision sensibly understood means that the applicant, so far as the penalty imposed on him for misconduct is concerned, is eligible to recommence duties as an engineman (Locomotive Driver Class 2 grade) as soon as he is suitably requalified after 1 November 1993.

3. This decision does not, and cannot, impair the rights and duties of the Commission to lawfully make whatever decisions it is empowered to make under the ANRC Act and the RSR, including a decision under RSR r.177, concerning the future employment status of the applicant for reasons independent of the discipline powers under Part IX of the RSR which followed the incident near Wynbring on 3 August 1991.

4. The applicant is entitled to his costs of the proceedings in this Court.