Eshak and Australian Rail, Tram and Bus Industry Union v Public Transport Corporation
[1996] IRCA 406
•30 August 1996
DECISION NO: 406/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - REVIEW - tram driven by employee involved in collision - internal disciplinary inquiry - concession on issue of VALID REASON - whether failure to demote constituted termination HARSH UNJUST and UNREASONABLE - whether failure to provide written charges pursuant to certified agreement rendered termination procedurally unfair - COSTS
Industrial Relations Act 1988 ss 170DC, 170DE, 170EA, 170EHA, 347
Alan Douglas Bell v Commonwealth of Australia, Industrial Relations Court of Australia, SI 1129 of 1995, 23 May 1996, Marshall J (unreported)
Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437
Anthony Smith and Associates Pty Ltd v Sinclair, Industrial Relations Court of Australia, Full Court, 22 April 1995 (unreported)
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Calvin v Carr [1980] AC 574
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors (1995) 133 ALR 445
Gregory v Philip Morris (1988) 80 ALR 455
Janicek v ICI Dulux Australia (1995) 62 IR 37
Johns v Gunns Limited (1995) 60 IR 258
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
R v Moore and Others; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
Romolo Luigi Puccio v Catholic Education Office and Catholic Church Endowment Society (Incorporated), Industrial Relations Court of Australia, SA 1720 of 1995, von Doussa J (unreported)
Tranter v Council of the Shire of Wentworth (1995) 63 IR 94, Marshall J (note, reported without corrigenda)
No. VI 2111R of 1994
VICTOR ESHAK and AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION v PUBLIC TRANSPORT CORPORATION
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 August 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 2111R of 1994
BETWEEN: VICTOR ESHAK and
AUSTRALIAN RAIL, TRAM
AND BUS INDUSTRY UNION
Applicant
AND: PUBLIC TRANSPORT CORPORATION
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 August 1996
ORDER
THE COURT ORDERS THAT:
1.That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 2111R of 1994
BETWEEN: VICTOR ESHAK and
AUSTRALIAN RAIL, TRAM
AND BUS INDUSTRY UNION
Applicant
AND: PUBLIC TRANSPORT CORPORATION
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 30 August 1996
EX-TEMPORE
REASONS FOR JUDGMENT
BACKGROUND FACTS
The first applicant, Mr Victor Eshak, is a 52 year old unemployed man who resides in a housing commission flat in North Carlton with his wife and two teenage children. Mr Eshak and his family migrated to Australia from Egypt in January 1988. In Egypt, Mr Eshak had been employed as a mechanical engineer for fifteen years with one company. On 30 March 1990, Mr Eshak commenced employment with the respondent as a tram conductor. On 10 November 1990 he was promoted to the position of conductor/tram driver and on 3 November 1991 to the position of tram driver. On 30 August 1994 a tram being driven by Mr Eshak collided with the rear of another tram. Fuller details of the collision will be given later in these reasons. On 31 August 1994 and 19 September 1994, the respondent convened and conducted a Tram Accident Investigation Board of Inquiry into the collision. Due to injuries sustained by him in the collision, Mr Eshak was absent from work until 21 October 1994.
On 21 October 1994, Mr Eshak and his union, the second applicant, were advised that an Internal Disciplinary Committee of Inquiry (“the Disciplinary Inquiry”) would be conducted on 24 October 1994. At the Disciplinary Inquiry, Mr Eshak was represented by an officer of the second applicant. Shortly prior to the commencement of the Disciplinary Inquiry, Mr Eshak and his representative were given access to all documents which were to be before the Disciplinary Inquiry. During the course of the Disciplinary Inquiry Mr Eshak was given a full opportunity to explain how the collision occurred and to refer to any incidental matter.
After hearing relevant submissions and considering the matters before it, the committee conducting the Disciplinary Inquiry determined that Mr Eshak be dismissed from his employment with the respondent as at 24 October 1994. After the announcement of that decision, an officer of the second applicant requested that the committee reconsider its decision. The officer put further submissions on behalf of Mr Eshak. The committee maintained its previous position and determined that Mr Eshak’s employment be terminated that day. The officer then requested that Mr Eshak be given an opportunity to resign. The committee acceded to that request and noted that its decision was, “dismissed/allowed to resign”. In an agreed facts document filed by the parties, this event is described as follows:-
“... Effectively Mr. Eshak was ‘constructively dismissed’ on and from 24 October 1994.”
To the extent that that sentence in the agreed facts document contains a concession by the respondent, it is one which was properly made. See Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
The Disciplinary Inquiry was constituted in accordance with an agreement certified by the then Australian Conciliation and Arbitration Commission on 11 May 1982, entitled “Traffic Personnel Counselling System” (“the certified agreement”).
Mr Eshak lodged an appeal against the decision of the committee in the Disciplinary Inquiry to the respondent’s Independent Appeal Panel (“the Panel”). The Panel consisted of an independent chairman, Mr Lamb, a nominee of the respondent and a nominee of the second applicant. The hearing before the Panel took place on 18 November 1994 and 7 December 1994.
The decision of the Panel commenced with the following background observations:-
“On Tuesday, 30 August 1994 at 1538 hours, Tram No. 2021 collided with the rear of Tram No. 2106 at the City Road Light Rail Station. Both trams were on the ‘down’ track destined for St. Kilda Beach. The offending tram No. 2021 was being driven by Driver Eshak.
As a result of the collision, both trams sustained extensive damage and a total of 41 passengers and 4 PTC staff were injured, some seriously.
An Internal Disciplinary Committee of Inquiry was held on Monday, 24 October 1994 at which time Driver Eshak was ‘allowed to resign’.
The Public Transport Union (Tram and Bus Division) subsequently served Notice of Appeal on the grounds of severity of penalty.”
By a majority of 2 to 1, the Panel decided that “Mr Eshak was not unfairly dismissed by the PTC and that the appeal was denied.”.
On 4 November 1994 the applicants applied to the Court for a remedy for Mr Eshak in respect of what they alleged to be the unlawful termination of his employment by the respondent. The application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) was referred to the Australian Industrial Relations Commission for conciliation. On 16 March 1995, Commissioner Lewin conducted a conciliation hearing. The matter was not settled in conciliation. The application was heard by Judicial Registrar Ryan on various days in June and August 1995.
On 8 November 1995 in the Magistrates’ Court of Victoria at Melbourne, Mr Eshak pleaded guilty to a charge of “driving in a careless manner” on 30 August 1994. The Chief Magistrate, without recording a conviction, fined Mr Eshak $200.00 with $28.50 statutory costs. No order was made in relation to Mr Eshak’s driver’s licence.
On 4 January 1996, Judicial Registrar Ryan dismissed the application before the Court. On 25 January 1996, Mr Eshak sought a review of the exercise of power by the Judicial Registrar.
THE COLLISION
The statement of agreed facts filed by the parties records the following information regarding the collision:-
“Mr Eshak, in the course of his employment by the Respondent as a tram driver, was driving tram No. 2021 on 30 August 1994.”
“On 30 August 1994, at approximately 3.38 pm. tram No. 2021 collided with the rear of tram No. 2106 (‘the collision’).”
“Both tram No. 2021 and tram No. 2106 are ‘B Class trams’.”
“The collision occurred in the St. Kilda light rail reservation at or about the City Road tram stop.”
“Immediately prior to the collision tram No. 2106 was stationary at the City Road ‘down’ tram stop.”
“Immediately prior to and at the time of the happening of the collision, the environmental conditions provided for clear uninterrupted visibility of the rear of tram 2106 from the front of tram No. 2021 from a distance of not less than 120 metres.”
“Immediately prior to, and at the time of the happening of the collision, the environmental conditions provided for clear uninterrupted visibility from tram No. 2021 to the beginning of the platform of the City Road ‘down’ tram stop for a distance of not less than 95 metres.”
“At the time of the collision and for the period immediately prior to the happening of the collision there was no mechanical or operational defects effecting (sic) tram No. 2021.”
“As a result of the collision, a number of passengers and members of the Respondent’s crew of both trams involved in the collision, including Mr. Eshak, were injured some of whom required hospitalisation.”
“As a result of the collision, damage totalling in excess of $500,000 was caused to the two trams involved therein.”
“At the moment the collision commenced to occur, tram No. 2021 was under emergency braking.”
“Tram No. 2021 was under emergency braking for 1.7 seconds allowing for perception and reaction time estimated at 3.7 seconds.”
“At the time of the commencement of the collision or very shortly thereafter, tram No. 2021 was travelling at 31.8 kilometres per hour.”
“At the time of the application of the emergency brakes, 1.7 seconds before the commencement of the collision, tram No. 2021 was travelling at no more than approximately 50 kilometres per hour.”
“All tram stops on the St. Kilda light rail reservation are compulsory stops.”
“On the day of the collision and prior thereto, Mr. Eshak was aware that all of the tram stops, including the City Road tram stop, were compulsory stops.”
“When tram No. 2021 entered the St. Kilda light rail reservation shortly prior to the collision, Mr. Eshak was aware that there was a tram, being tram No. 2106, ahead of his tram on the St. Kilda light rail reservation.”
VALID REASON
It was conceded by the applicants that the respondent terminated the employment of Mr Eshak for a valid reason. The only issues between the parties on the question of the lawfulness or otherwise of the termination is whether or not the termination was harsh, unjust or unreasonable and therefore contrary to s170DE(2) of the Act and whether or not the respondent acted in breach of s170DC of the Act. In respect of each of those matters, the applicants bear the onus of proof. See Johns v Gunns Limited (1995) 60 IR 258, 261.
SECTION 170DE(2)
In Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, 28, a decision of the Full Federal Court, Sheppard and Heerey JJ dealt with the meaning of the words “harsh, unjust or unreasonable” as they appeared in the context of an award prohibition of terminations fitting that description. Their Honours said:-
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”
That passage was cited with approval by McHugh and Gummow JJ in Byrne v Australian Airlines Limited (“Byrne”) (1995) 131 ALR 422, 463.
(a) Preliminary Observations on “Harsh etc”
(i)Circumstances which led to the decision to dismiss
The circumstances of the collision and consequential injuries and damage to the general public and staff of the respondent are set out in the agreed facts document quoted from earlier in these reasons. The concession of the applicants on the issue of valid reason for the termination must also be considered in assessing the circumstances which led to the decision to dismiss. It must be borne in mind that Mr Eshak, when entrusted with the safety of members of the general public, betrayed that trust by driving his tram in a negligent manner and causing approximately forty people to be injured, some critically.
(ii)Effect of the decision on the employer
The respondent has a duty to provide a safe public transport service. It has a vital interest in ensuring that its employees keep safety as a paramount consideration in their minds when carrying out their duties. The employer also has an interest in maintaining the integrity of the disciplinary processes to which it is a party.
(iii) Harsh effect on the employee
Mr Eshak lost his livelihood and his means of supporting his family when he lost his job. His wife has had health problems and the only extra income earned by the family from October 1994 until a few weeks ago, apart from sickness benefits and unemployment benefits, has been some small amounts of income which Mrs Eshak has earned in child minding duties. About three weeks ago Mr Eshak commenced work as a taxi driver in partnership with a friend.
The termination of Mr Eshak’s employment is all the more devastating to him because he previously had a good record as an employee of the respondent. As is stated in the agreed facts document:-
“Up to the date of the collision Mr. Eshak had a good disciplinary record with the Respondent. Prior to the accident on 30 August 1994 Mr. Eshak had not been involved in any tram collisions in which he had been determined to be at fault.”
(b)Failure to demote
The applicants contended that Mr Eshak should have been considered for demotion to the position of tram conductor, a position previously occupied by him. It was submitted that dismissal was a penalty which was harsh, unjust or unreasonable in the circumstances given Mr Eshak’s good record and the fact that the collision did not arise as a result of Mr Eshak’s wilful misconduct. It was also submitted that the practice of the respondent had been not to dismiss tram drivers involved in collisions unless “the record of the employee demonstrated previous inadequate performance and formal warnings”. It was further submitted that the respondent had never made it clear to Mr Eshak that he would be terminated if a collision of the kind for which he was responsible on 30 August 1994 actually occurred.
It was clearly open to the respondent to choose to demote Mr Eshak rather than dismiss him. In the circumstances I do not believe that failure to demote Mr Eshak was harsh, unjust or unreasonable. Mr Eshak’s negligence was not a wilful act, but if the wilful causing of a collision was the test for termination, standards of safety within the respondent would be vastly diminished, contrary to the public interest. A previous good record should also provide no shield in circumstances where the result of one’s inattentiveness is the potential to kill or injure innocent people. It is also not to the point, as disclosed in the evidence of Mr Di Gregorio and in some of the evidence before the Judicial Registrar, that other employees in similar circumstances may have been demoted rather than dismissed. The question for consideration is whether in the circumstances of Mr Eshak’s collision the termination of his employment was harsh, unjust or unreasonable. I do not believe that failure of the respondent to implement a lesser penalty such as demotion rendered the termination harsh, unjust or unreasonable. In any event conductors have safety considerations to take into account in performing their duties. Any inattentiveness by a conductor may also have fatal consequences. Similar considerations arise in the work of customer service employees employed by the respondent. I refer to such employees because it was a position in relation to which it was contended by the applicants that the Court may order Mr Eshak to be reinstated to.
It was submitted that termination of Mr Eshak’s employment was not expected by the second applicant at the committee hearing. It was within the realms of possibility that the committee might so find. The fact that it was considered to be industrially unreal by the second applicant is not to the point.
(c)Medical issues
Other reasons were advanced by the applicants as to why s170DE(2) of the Act had been breached by the respondent. I do not consider them to be persuasive. Failure to medically test or “follow up” on Mr Eshak has no apparent relevance to the collision which occurred on 30 August 1994. As at 30 August 1994 there was no issue between Mr Eshak and the respondent as to Mr Eshak’s fitness to drive a tram.
Notwithstanding the harsh personal consequences for Mr Eshak arising from his termination, in relation to which I have a great deal of sympathy for him, having considered and rejected a plea of leniency made on his behalf (see Gregory v Philip Morris (1988) 80 ALR 455, 474), the respondent in my view did not act harshly, unreasonably or unjustly in terminating him. The respondent had a wider public interest to consider than the personal interest of Mr Eshak. Confidence in the public transport system in the eyes of ordinary commuters and their families would be seriously eroded if a firm view was not taken about careless driving which had the capacity to take the lives of innocent commuters and employees of the respondent and which did in fact result in the hospitalisation of several people, including elderly persons.
SECTION 170DC
It was submitted by the applicants that the respondent did not comply with the certified agreement in effecting the termination of Mr Eshak. The submission was founded upon the requirement in the certified agreement that a driver who is to be charged in respect of disciplinary offences must be given notice in writing of the charges. The certified agreement requires that:-
“All employees required to attend the Traffic Personnel Office (suspensions excepted) will attend in the Corporation’s time. The notice to attend, must list the specific charges he is required to answer ...”
It appears that Mr Eshak was not provided with written charges which he was required to answer. However he was made fully aware of the purpose of his attendance before the committee. There was no doubt that Mr Eshak was aware of the allegation made against him, ie. negligent driving. He was given an opportunity to defend himself against that allegation before the committee and again before the Panel. If there was a procedural defect in relation to the hearing before the committee in my view it was cured by the appeal proceedings before the Panel. It was the decision of the Panel that was the decisive element in the respondent’s ultimate decision to maintain the dismissal of Mr Eshak. See Calvin v Carr [1980] AC 574, 592-3 per Lord Wilberforce.
The failure of the respondent to precisely follow the letter of the certified agreement in the respect identified above did not, in my opinion, render the termination in breach of s170DC of the Act, or for that matter, although it was not argued under this head, in breach of s170DE(2) of the Act. As to the later proposition see Byrne at 434 per Brennan CJ, Dawson and Toohey JJ, Alan Douglas Bell v Commonwealth of Australia, Industrial Relations Court of Australia, SI 1129 of 1995, 23 May 1996, (unreported) per Marshall J at 11-12, and Romolo Luigi Puccio v Catholic Education Office and Catholic Church Endowment Society (Incorporated), Industrial Relations Court of Australia, SA 1720 of 1995, (unreported) per von Doussa J at 26.
I agree with the observations of the Chief Justice (Wilcox CJ) in Janicek v ICI Dulux Australia (1995) 62 IR 37, 40 where his Honour said:-
“... s170DC does not require any particular formality ... What is important is that the substance of the relevant allegation be put to the employee under circumstances where he or she has the opportunity of putting a defence.”
Accordingly, given the circumstances of this matter referred to above, I am of the view that the applicants have not discharged their onus of making out a relevant breach of s170DC of the Act by the respondent.
COSTS
The respondent applied for costs pursuant to s347 of the Act against the second applicant and later in its submissions effectively sought to invoke s170EHA of the Act.
Although ultimately unsuccessful, I do not believe that the application can be described as being vexatious or made without reasonable cause. As Gibbs J made clear in R v Moore and Others; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, 473 a proceeding is not commenced without reasonable cause simply because the argument fails. Further, in my view the application was not manifestly groundless or bad beyond argument. See Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, 271 and Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors (1995) 133 ALR 445.
It was submitted that the Act as amended on 15 January 1996 applied so that costs could be sought in respect of the review only. In my opinion, as I have previously stated in Tranter v Council of the Shire of Wentworth (1995) 63 IR 94, Marshall J (note that the IR report of that case does not include a corrigenda issued shortly after the handing down of the judgment, however, the corrigenda is not germane to this issue), the review is not a separate proceeding but a motion within the application which was initially lodged by the applicants and originally dealt with by the Judicial Registrar. See Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437.
It was submitted that the decision of the Full Court in Anthony Smith and Associates Pty Ltd v Sinclair (“Sinclair”) Industrial Relations Court of Australia, Full Court, 22 April 1995 (unreported) supports the proposition that a review is a separate proceeding for the purposes of s170EHA of the Act. Sinclair provides no such support. It involved an appeal against a decision of a single judge. An appeal, unlike a review of a decision of a judicial registrar, is unarguably a separate proceeding from that dealt with by the judge at first instance.
ORDER
Given that the Court has found no breach of any provision of Division 3 of Part VIA of the Act the order of the Court will be that the application be dismissed.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 30 August 1996
Representative for the Applicants: P. Parkinson
Counsel for the Respondent: G. Devries
Solicitor for the Respondent: Geraldine Sharman
Date of hearing: 29 and 30 August 1996
Date of judgment: 30 August 1996
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