Eshak & Australian Rail, Tram and Bus Industry Union v Public Transport Corporation
[1996] IRCA 1
•4 Jan 1996
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - RESIGNATION OR TERMINATION - NEGLIGENCE - CARELESS DRIVING - DANGEROUS DRIVING - GOOD PRIOR DRIVING RECORD - MISCONDUCT - EMPLOYER’S PAST PRACTICES
Industrial Relations Act 1988, S170CA, S170DB, S170DC, S170DE, S170EA, S170EDA
CASES:
Mohazab v Dick Smith Electronics IRCA (unreported) 28 November 1995
Apesma v David Graphics Pty Ltd, IRCA (unreported) NI94/0174, 12 July 1995
North v Television Corp. Limited (1976) 11 ALR 599
Harmer v Cornelius (1958) 141 ER 94
Briginshaw v Briginshaw (1938) 60 CLR 336
Byrne and Frew v Australian Airlines (1995) 131 ALR 422
Byrne and Frew v Australian Airlines (1994) 120 ALR 274; (1994) 52 I.R.10
Johns v Gunns Ltd (1995) 60 I.R. 258
Jones v Dunkel (1959) 101 CLR 298
ESHAK & AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION v PUBLIC TRANSPORT CORPORATION
No. VI-2111/94
Before: Ryan JR
Place: Melbourne
Date: 4 January 1996
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-2111/94
B E T W E E N: ESHAK & AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Applicants
AND:PUBLIC TRANSPORT CORPORATION Respondent
RYAN JR
MINUTES OF ORDER
4 JANUARY 1996
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-2112/94
B E T W E E N: ESHAK & AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION
Applicants
AND: PUBLIC TRANSPORT CORPORATION
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 4 JANUARY 1996
CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT
THE APPLICATION
The Australian, Rail, Tram and Bus Industry Union (the union) has applied for a remedy in respect of the termination of employment of Victor Assad Eshak (the applicant). The respondent is the Public Transport Corporation.
The applicant became a conductor/tram driver with the respondent on 10 November 1990 and was appointed as a tram driver on 3 November 1991.
THE TERMINATION
On Tuesday 30 August 1994 at 15:38 hours the applicant was driving B class tram number 2021 south on the St Kilda light rail reserve. The front or number 1 end of tram number 2021 collided with the rear of B class tram number 2106 which was stationary at the City Road “down” tram stop.
On 24 October 1994, following an Internal Disciplinary Panel of Inquiry held on that day, the Chairman of the Panel, advised the applicant’s union representative, Mr Martin Strebbs that he, Mr Strebbs, was to inform “his member”, the applicant that he had been dismissed. The decision to dismiss was stated to be effective immediately. Neither party in this Court challenged the power of the Panel to dismiss. The Court accepts that the Panel was vested with the power to dismiss employees on behalf of the respondent by delegation from the respondent and/or by way of clauses (f) and (g) of the Memorandum of Agreement Traffic Personnel Counselling System certified by Australian Conciliation and Arbitration Commission on 11 May 1982 (Print E8763) (Exhibit A18).
It is not clear from the report of the Panel of Inquiry (Exhibit A15) what Mr Strebbs was told to tell the applicant as to the grounds for dismissal and it is not known exactly what Mr Strebbs said to the applicant. Mr Strebbs was not called as a witness at this hearing.
However, Mr Strebbs was present when the Panel of Inquiry discussed, deliberated and decided to dismiss the applicant. Indeed, Mr Strebbs took part in the deliberations. He “retired to the deliberation room” with the Panel members and “made a plea for leniency based on the applicant’s good employment and driving record”. (Exhibit A15 page 6)
He was present when the Chairman of the Panel recommended to the Panel members that the applicant “be dismissed from the employment of the Public Transport Corporation as of (that day) Monday 24 October 1994 (and when) the recommendation was agreed unanimously by members of the Panel”. (page 7 Exhibit A15)
In fact Mr Strebbs “argued that in the past, any employer involved in an accident of similar nature, did not warrant dismissal but either permanently regressed to conductor status or permanently taken away from traffic. He pleaded that the panel members reconsider the dismissal decision” (also page 7 Exhibit A15).
The Panel rejected the plea for a penalty less severe than dismissal and the Panel report concludes as follows:
“The Panel rejected this plea and argument, stressing that past accidents were not as severe in comparison to the car ahead collision on the 30 August 1994, which was one of the worst in the PTC’s history, where the degree of damage and number of injuries was excessively high.
All areas of the vehicle and the system have been tested and found not to be at fault, and the Panel Members were satisfied that Driver Eshak should be accountable for his action.
Prior to leaving the deliberation room to advise and inform his member of the Panel’s decision, Mr Martin Strebbs indicated that there would probably be an appeal against the dismissal decision. He was immediately informed that it would be the right of his member to exercise through the internal process of the PTC Appeal Board within seven days of the dismissal decision.
On his return to the deliberation room, Mr Martin Strebbs addressed the Panel Members that since dismissal was the unanimous decision, he would request and plead that his member be allowed and given the option to resign, and the members of the Panel reluctantly agreed.
At 16.40 hours, Driver Eshak was brought back into the Panel room and informed of the Panel’s decision. It was explained to him that should he wish to accept the dismissal decision, it would be his right to appeal against the decision through the internal process of the PTC Appeals Board within seven days, however, should he take the option of being allowed to resign, he would automatically forfeit his right of appeal. He informed the Panel Members that he would rather take the option of being allowed to resign and signed the appropriate document.
The decision of the Internal Disciplinary Panel of Inquiry then reads:
DISMISSED/ALLOWED TO RESIGN.
The Internal Disciplinary Panel of Inquiry concluded at 16.50 hours.
JEFF JARAIE
TRAFFIC PERSONNEL OFFICER
MET TRAM”
It is not helpful to speculate on what Mr Strebbs may have told the applicant as to the grounds for dismissal. It seems likely that Mr Strebbs was aware that the Panel had decided that the applicant should be immediately dismissed for:
serious neglect of duty
extreme incompetence
driving in a dangerous manner
failing to have complete control of his vehicle (i.e. tram no 2021)
breaching Corporation Operational Rules and Regulations Nos 7, 34, 35, 61, 82, 109 and 111
However, it seems safe to assume no more than that Mr Strebbs told the applicant that the Panel had dismissed him because of his involvement as driver of tram 2021 in the rear end collision with tram 2106 on the St Kilda Light Rail Reserve on 30 August 1994.
The dismissal process (including access to an Appeals Board) is part of a procedure known as the Traffic Personnel Counselling System and is discussed in more detail below. The certified Agreement (Exhibit A18) also deals with the Traffic Personnel Counselling System but the Agreement does not cover access to the Appeals Board.
TERMINATION OR RESIGNATION
The respondent asserts that the applicant voluntarily resigned from his employment. Counsel for the respondent argued that before, at and immediately after the Panel of Review hearing the applicant was represented, counselled, advised and generally assisted by a skilled union official who had participated in 57 panels of inquiry. Counsel claimed that not only did the applicant choose to resign but that it was at his insistence, through his representative, Mr Strebbs, that he was allowed to resign.
Counsel for the respondent put it as follows:
“he chose to resign, although arguably that choice may have been to his detriment, at least in that it deprived him of an inalienable right to an internal appeal. Furthermore, he and his representative, having knowingly taken the option, or knowingly debarred him from an internal appeal, or at least the right to such an appeal, then prevailed upon the PTC for an appeal and then persisted with the appeal processes. It was at all times his decision, albeit probably on the advice of his union representative, but his own voluntary decision.
Just as he knowingly debarred himself from the internal PTC avenues available to him it is submitted that he debarred himself from exercising the jurisdiction of this honourable court.”
The Court rejects this proposition and needs to go no further than the recent decision of the Full Court of the Industrial Relations Court of Australia (as yet unreported) Mohazab v Dick Smith Electronics 28 November 1995. At page 12 the Court stated:
“It is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in Apesma v David Graphics Pty Ltd, IRCA, NI94/0174, 12 July 1995 (as yet unreported). His Honour, at 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:
“a termination of employment at the instance (of) the employer rather than of the employee”
and at 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of employment.”
When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of the employment would not cross the mind of the employee.”
I have no doubt that the applicant would have remained in the employment of the respondent were it not for the action of the respondent as employer. The fact of the matter is that the employer’s representative, the Panel of Inquiry, dismissed the applicant and advised his union representative to communicate the decision to the applicant. The applicant, almost certainly on the advice of his union representative, then appeared within a few minutes before the Panel which had terminated his employment. The Chairman of the Panel explained to him that should he wish to accept the dismissal decision, which had already been made and communicated to him, he had a right of appeal against the decision through the internal process of the PTC Appeals Board but that should he take the option of “being allowed to resign” he would automatically forfeit his right of appeal. The applicant informed the panel members that he would rather take the option of being allowed to resign and signed a document of resignation.
The decision of the Internal Disciplinary Panel of Inquiry was formally recorded thus:
“Dismissed/allowed to resign.”
Clearly by 9 November 1994 the respondent was treating the matter as a dismissal because the Managing Director of Met Tram wrote to the union on that day referring to “an appeal against the severity of a penalty of dismissal handed down to one of your members namely Mr Eshak” (see Exhibit A19).
In this case the applicant went through a process of resignation after a termination of his employment at the initiative of the employer had occurred and had been communicated to him. In Mohazab at 15 the Full Court said:
“Industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.”
There is no doubt that the resignation entered into and signed by the applicant was not a voluntary, willing resignation in the sense that it was a decision of the applicant taken freely and divorced, as it were, from the conduct of the employer. The respondent had actually dismissed the applicant. The act of resignation was a short term decision of the applicant and he pursued an appeal and was allowed to pursue an appeal virtually on the basis that his employment had been ended at the initiative of the employer. The termination was an act of the employer. The claim for remedy is within jurisdiction.
REASONS FOR TERMINATION
The Court is satisfied that the respondent terminated the employment of the applicant because of conclusions reached as to his performance and conduct while in charge of tram 2021 on 30 August 1994.
The applicant drove tram 2021 at speed into the rear of tram 2106.
The Panel of Inquiry concluded, and the respondent accepted, that the applicant should be immediately dismissed on 24 October 1994 for:
serious neglect of duty
extreme incompetence
driving in a dangerous manner
failing to have complete control of his vehicle
breaching General and Operational Tram and Bus Rules Nos 7, 34, 35, 61, 82, 109, 111.
The Panel, at least the Chairman of the Panel, also formed the view that the manner in which the applicant drove tram 2021 on the St Kilda Light Rail Reserve on 30 August 1994 amounted to the applicant:
“undermining his responsibilities towards the travelling public, his fellow employees, his position and the image of the Public Transport Corporation.”
Also, at least in terms of penalty, the Panel took account of what was incorrectly suggested to be the applicant’s poor and unsatisfactory driving record. The evidence at the hearing in this Court established that the applicant had a good driving record and that the “8 or 9 collisions” in which he was involved as a tram driver were minor matters. Most were matters where no blame at all could be levelled at the applicant as driver in a busy, complex, fixed rail transport system operating in a crowded metropolitan environment. None were matters in which any action was taken against the applicant. It is therefore troubling to note the sixth paragraph on page 7 of the Panel Report (Exhibit A15). The report was prepared by and signed by the Chairman of the Panel. Paragraph 6 on page 7 reads as follows:
“Before handing down my recommendation, Mr Martin Strebbs pleaded to the Panel Members, that leniency be shown towards his member, taking into consideration his good employment and driving record. I pointed out to the Panel Members that as a tram driver since 10 October 1990, Driver Eshak has registered nine collisions against his name recorded by the PTC Insurance Services Department.”
However, the Court has concluded that the recommendation for dismissal made by the Chairman of the Panel and accepted by all members of the Panel was not based on the incorrect assumption that the applicant had a bad driving record. The incorrect suggestion that the applicant had a bad driving record seems to have arisen when the Panel was considering penalty. Even if the supposed poor driving record was considered prior to the decision to dismiss and even if all three members of the Panel placed weight on this incorrect information, the Panel established six factors which led to the decision to terminate the applicant’s employment. These factors did not include prior driving record and are identified in the Panel report on pages 6 and 7 as follows:
Driver Eshak was driving tram 2021 at a much faster speed than he maintained throughout the hearing.
The brake tests performed on 31 August 1994, concurred that tram 2021 would be travelling at least 51 kilometres per hour or faster then approaching the City Road “down” stop.
This is consistent with the statements provided by various independent witnesses, all stating that the tram speed did not reduce as it approached the City Road “down” stop, and those who were aware of the location of the stop, indicated that Driver Eshak was going too fast to stop.
He looked into the internal rear vision mirror for much longer than one second, as claimed. By the time he returned his vision forward, he could not stop in time to avoid the collision.
He was fully aware that there was a tram at the City Road “down” stop.
The Fault Code 27, proved beyond doubt that there were no mechanical or operational defects found that led to the car ahead collision. Tram 2021 was recorded within the impact zone of 31.8 kilometres per hour, with the time period which had passed from the time of applying the brakes and the tram registering the Fault Code 27 was 1.7 seconds, far too close to avoid the collision, taking into account that there would be a delay of three seconds prior to the braking taking effect.
This proved conclusively that Driver Eshak was travelling faster than the speed he was prepared to admit before the Internal Disciplinary Panel of Inquiry.
While the applicant, through his union representative, vigorously disputed all but the sixth and last of these factors and disputed the conclusion contained in the sixth factor (i.e. that the applicant was travelling faster than the speed he admitted during the Panel hearing), the Court has concluded, on the basis of the evidence submitted, that all six factors were reasonable conclusions.
The Court has also concluded that the applicant was travelling far too fast approaching a mandatory stop and a stop at which Tram 2106 lay stationary. For whatever reason or reasons, the applicant was paying inadequate attention to the track ahead. While the applicant’s previous good record would suggest this was conduct out of the ordinary, and perhaps exceptional conduct on his behalf, the Court has concluded that this did constitute the following elements of unacceptable conduct and performance all specifically identified in the Panel of Inquiry Report:
serious neglect of duty
incompetence
driving in a dangerous manner
failing to have complete control of his vehicle (i.e. tram no 2021)
breaching Corporation Operational Rules and Regulations Nos 7, 34, 36, 61, 82, 109 and 111
For completeness the Court notes that the Rules referred to by the Chairman of the Panel in Exhibit A15 as Operational Rules and Regulations are in fact entitled ‘Public Transport Corporation General and Operational Rules Tram and Bus’.
The relevant rules are part of Exhibit R7 and read as follows:
Damage
Employees may be held responsible for any damage to the property of the Corporation, or to the person or property of customers or other persons caused by that employees neglect or carelessness.
General Conduct
Employees must not behave in any way likely to put public safety in danger or undermine public confidence.
Preventing Accidents/Limited Visibility
The prevention of accidents is very important. Risks must not be taken and there will be no excuse for carelessness.
If for any reason visibility is limited, the tram or bus must be driven at a speed slow enough for it to be stopped within the distance the Driver can see.
Accident Penalty
Any employee involved in an accident may be relieved with full pay until an inquiry is held. An employee found to be responsible may be subject to disciplinary action.
Speed
(a)A tram must be driven at a safe speed at all times to allow for all conditions which may affect normal braking.
(b) When going faster than half speed a tram must be kept at least one hundred metres (about three street pole intervals) behind the tram in front.
(c) When a tram is slowing down or has stopped, the Driver of the following tram must proceed with caution and be prepared to stop no less than one metre from the tram in front.
(d)Trams must not exceed 60 K.P.H. on reserved tracks.
(e)Trams entering or leaving a safety zone must not exceed 8 K.P.H.
109.Responsibility in Traffic
A tram in traffic is under the control of the Driver. When a breach of rules occurs effecting safety both the Driver and or the Conductor may be held responsible.
111.Stopping Places
(a)A tram must:
(i)Be stopped at a request stop where anyone wants to get on or off.
(ii)Be stopped at compulsory stops or any place shown in special instructions.
(iii)Not pass the stop mark at a terminus.
(iv) Not be stopped blocking cross streets, cross walks, driveways or safety zones.
(v) Always be stopped with the front of the tram at the building line of cross or side streets except where there are track stop marks or other instructions apply.
(vi) Be stopped when possible, with the step opposite people waiting to get on.
(vii)Not be stopped on a sharp curve except in an emergency.
(viii) Always be stopped at compulsory stops near railway crossings. When the points and signal are set to go sound gong before proceeding.
(ix) Be stopped no closer than one metre behind a stationary tram.
(b) The last tram on a route must, if needed, stop between the usual stopping places if a person wants to get on, providing it is safe to do so.
The applicant conceded in cross-examination that he was familiar with these rules, had had them and others provided to him, had read the rules and had breached them on 30 August 1994.
UNDISPUTED MATTERS
The union and the applicant have conceded that:
(a)at the time of the collision and immediately prior to the collision there were no mechanical or operational defects affecting the tram driven by the applicant
(b)as a result of the collision a number of passengers and crew members of both trams were injured and required hospitalisation
(c)as a result of the collision damage was caused to both trams in excess of $500,000
(d)at the moment the collision commenced to occur the tram driven by the applicant was under emergency braking
(e)immediately prior to the collision the environmental conditions provided for good visibility and for clear, uninterrupted visibility to the front of the tram driven by the applicant for a distance not less than 120 metres
(f)immediately prior to the collision and prior to the application of the emergency braking mechanism, the tram driven by the applicant, was travelling at a speed equal to or greater than 31 kpm but not greater than 50 kph.
In respect of (e) above the applicant in a signed statement on 9 September 1994 (Exhibit R11) has suggested that the sun reflecting off parts of the tram he was driving “would have effected my visibility”.
The Court cannot comment on glare or reflected sunlight at about 3:58 pm on Tuesday 30 August 1994. However, the Court notes that during the view undertaken on Wednesday 2 August 1995 between 3 pm and 4 pm the sun was shining and there was no glare or reflected light observable from inside a similar tram as it proceeded along the same route to the City Road “down” stop. Observations were taken from near the driver’s position and from within the front and back carriages.
THE APPLICANT’S FIRST STATEMENT
The following is an extract from Exhibit R11 (also A14) the statement made and signed by the applicant on 9 September 1994 nine days after the collision.
“On Tuesday 30 August 1994 I was driving tram 2021. The tram was operating normally and the brakes were working effectively. I had picked the tram up at South Melbourne station and travelled to St Kilda, then to East Brunswick terminus, then I began the trip to St Kilda beach from East Brunswick. When the tram was in Bourke Street, I was aware of another tram ahead, and it was at Spencer Street that my tram caught up to this tram and I stopped the tram behind it. I then became aware this tram ahead of me was travelling to St Kilda beach also. When the traffic lights changed, the tram in front moved off and turned left into Spencer Street. I moved my tram forward and stopped at the corner, waiting for the next change of lights to allow the tram I was driving to proceed and to also allow a gap between the trams. After turning, the tram travelled south along Spencer Street and I found that at Flinders Street the tram had again caught up to the other St Kilda beach tram.
When the traffic light came up, the tram ahead moved off and I followed on the same light. After travelling under the railway bridge, I brought the tram to a stop at the safety zone opposite the World Trade Centre. I did this to allow the tram ahead to move well clear of my tram. I watched the other tram cross the bridge over the Yarra River and then disappear over the other side.
I then moved the tram forward and began to cross the bridge in the tram I was driving. As the front of the tram reached the top or centre of the bridge, I could see the rear of the other tram as it moved into Whiteman Street about 170-200 metres ahead of my position. The speed of my tram at this time was about 20 kpm and I allowed the tram to coast down the south side of the bridge towards the roundabout at Whiteman Street.
The tram was now travelling south in Clarendon Street, South Melbourne (i.e. the extension of Spencer Street). I have my foot on the tram brake as it came down from the centre of the bridge to control the speed of the tram. At Whiteman Street I slowed the tram speed down in order to get the points and turn into Whiteman Street through the roundabout, moving at a speed of about 10 kph. As the tram was making the right turn, I could see the other tram ahead turning left to go onto the light rail towards St Kilda.
The tram travelled along Whiteman Street after completing the turn from Clarendon Street and I brought the tram to a stop at the passenger shelter. I cannot remember if anyone boarded or alighted. I could not see the other tram, so I expected it to be at City Road. I then moved the tram forward and turned left into the light rail to travel towards St Kilda.
The track in this area is an incline, going steadily uphill on a left hand curve. The tram accelerated to a speed of about 25 kms per hour, I was aware that there is a stop at City Road, a short distance ahead so I had no need to travel fast. This stop is a compulsory stop and I would have to stop.
At a point I cannot clearly identify I took my foot off the accelerator and allowed the speed of the tram to slow naturally as the tram continued up the grade. The front of my tram was (at a distance I cannot remember) from the rear of the other tram which I saw was still stationary at the stop. I had room to stop the tram at this point, safely. The speed of the tram I was driving would have been around 20 kms per hour. I looked up into my rear view mirror for about one second to see if anyone was standing up to alight at the City Road stop. I had already applied light pressure on the brake to slow the tram. After glancing in my mirror, I looked forward again and saw the other tram was still stationary, I cannot say how far ahead. I immediately applied the tram’s brakes full on, pressing the brake pedal down. I an unable to remember what happened after this. I know that the tram collided with the tram ahead and I was later removed to the hospital by ambulance.
The weather was fine and sunny. The sun was glary and reflecting off parts of the tram which could have effected my visibility.”
VARIATIONS TO THE APPLICANT’S FIRST STATEMENT
On later occasions, when the applicant appeared before a Panel of Inquiry and when submissions were put on his behalf at an appeal hearing and when he gave evidence in this hearing he gave a different version of his involvement in events in the few seconds prior to the collision.
Firstly, in cross-examination in this hearing the applicant departed from the claim he made 9 days after the collision that he “looked up into (the) rear view mirror for almost one second to see if anyone was standing up to alight at the City Road stop”. He changed that claim to one where he states that he looked into the rear vision mirror to see that the rear bogies had gone around the bend with the front end of the tram.
Secondly, the applicant stated in the Panel of Inquiry hearing on 24 October 1994 that, after glancing in the mirror in order to check whether there were passengers getting ready to alight at the next tram stop, he maintained what he claimed was a speed of almost 25 to 30 kilometres per hour approaching the City Road “down” stop and 10 or 20 metres or even further from the tram in front he applied the brakes. The applicant told the Panel of Inquiry that he had no memory of what occurred after he transferred his foot to the brake. His claim that he applied the brakes 10 or 20 or more metres from the tram in front conflicts with his first statement on 9 September 1994 in that he stated at that stage that when he looked up from the rear vision mirror he could not say “how far ahead” lay the stationary tram.
Thirdly, when questioned by the Chairman of the Panel of Review as to whether he saw tram 2106 stationary at the City Road “down” stop he made the curious response that he “did not see the tram but was aware that the tram would be there” (page 3 Exhibit A15). This statement that he did not see tram 2106 stationary at the City Road stop is in such clear conflict with his original statement on 9 September 1994 and with other statements to the Panel of Inquiry and to this Court that it is difficult to explain unless the applicant was confused and was referring to not seeing tram 2106 again before the collision. However that too would conflict with the statements on 19 September 1994 and at the Panel of Inquiry and in this Court which were generally to the effect that he applied the brakes “full on” when he looked ahead after glancing in the rear vision mirror.
Fourthly, he told the members of the Panel of Review that he was not sure whether he applied the brakes or not and then stated that he remembered not applying the brakes, merely placing his foot on the brake pedal (page 4 Exhibit A15). Later again the applicant told the Panel that “he did not know what happened as his mind became blank immediately after applying its brakes full on” (page 6 Exhibit A15).
Finally, the following is an extract from cross-examination of the applicant on page 83 of the transcript.
“Q.It (Tram 2106) was stopped with its front pretty close to the front of the tram stop, the end of the tram stop furthest from you or the end of the platform?
A.Really, I don’t know.
Q.No, okay. Because I am going to be suggesting to you that when you started to brake you were already entering the platform?
A.I don’t remember. All what I remember is, as I said, I hit the brakes when I saw the tram.”
There then followed an exchange between counsel for the respondent and the applicant in which the former invited the latter to comment on the proposition that tram 2021 was almost 19 metres from the stationary tram 2106 when the brakes started to grip...and that the applicant was already passing the platform when he began to apply the brakes. During the exchange the applicant himself questioned this line of questioning as follows:
“Why you ask these questions?
I insist why you ask this question, sir?”
The applicant then continued as follows:
“Suppose that there was a car or pedestrian or people or dogs or tram, I was going to hit them.”
“I told you before I don’t know why I didn’t stop, why the tram acceleration - why is the tram speed has gone up to 50 as you said. I don’t know. If I know I could stop the tram.”
THE UNION SUBMISSIONS
The union argues that despite the concessions made on behalf of the applicant the termination was nevertheless unlawful and harsh, unjust and unreasonable. The union seeks reinstatement of the applicant and, if that is found impracticable, the maximum compensation possible under the Act and, if that too fails, damages equivalent to at least four weeks wages for what is claimed to be a breach of S170DB(2) (notice of termination of payment in lieu).
The union submissions rely to a considerable degree on what is claimed to be an inappropriate, inadequate and unfair application of a disciplinary procedure known as the Traffic Personnel Counselling System.
The Traffic Personnel Counselling System is said to be an Agreement certified in May 1982 under the Australian Conciliation and Arbitration Act 1904 and continued under the Industrial Relations Act 1988 (see Exhibit A18). The Court is of the view that the System is primarily but not exclusively encompassed in the Agreement.
The Court accepts that the Agreement provides a process for discipline of drivers and conductors including discipline in respect of incidents and accidents. Decisions of the Traffic Personnel Office are appealable to an Appeal Board and the practice of allowing an appeal is still provided although the legislation which created the right of appeal has been repealed.
The union submits that the Traffic Personnel Office Panel of Inquiry summarily dismissed the applicant on 24 October 1994. The Court agrees although there was no summary termination of employment immediately following the accident on 30 August 1994. At that stage the applicant was injured and was on leave until 21 October. Meanwhile an investigation was undertaken by the Tram Accident Investigation Board (the report is part of Exhibit A20). When the applicant returned for duty on 21 October he was in effect suspended pending a Traffic Personnel Office Panel of Inquiry scheduled for 24 October. At the conclusion of that Inquiry on 24 October the applicant was immediately dismissed. Because the termination of employment took place immediately at the end of the hearing it is correct to describe the termination as a summary dismissal in that sense.
However, it was not summary in the sense that the applicant was deprived of an opportunity to defend himself against the allegations made. The applicant made a statement on 9 September. The applicant and his representatives were given an opportunity to look at the voluminous and detailed material prepared as a result of the investigation by the Tram Accident Investigation Board. The applicant was represented at the Panel hearing and his representative was present while the Panel deliberated and when the Panel decided unanimously to dismiss the applicant.
The Court has already agreed for reasons already given that this was a termination at the initiative of the employer. It was not a resignation. The union has attacked the validity of the termination and has submitted that:
the applicant was not guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period prescribed in S170DB(2)
the cause of the accident on 30 August 1994 is “unexplained” and, in effect, unknown and is described in the union’s final written submission as follows:
“as to whether there was a lapse in concentration, a period of inattention, a distraction, a temporary blackout, an error of judgment or some other cause is conjecture”
the circumstances in which Mr Eshak found himself did not by standards of fairness and justice warrant dismissal, summary or otherwise, given the past practices of the respondent, and the treatment afforded many other tram drivers previously (Applicant’s final submission page 9)
the termination was harsh, unjust and unreasonable
the termination breached the Termination of Employment Recommendation 1982 in that a written warning should have been given to the employee prior to a termination for misconduct
the termination breached S170DC in that the applicant was not given an opportunity to defend himself against the allegations of serious neglect of duty, incompetence, driving in a dangerous manner, failing to have complete control of tram no 2021 and breaching certain PTC General and Operational Rules
(vii)the termination decision did not take account of the applicant’s good driving record or those making the decision wrongly assumed that the applicant had a bad driving record because of advice from the Chairman of the Panel of Inquiry that “driver Eshak had registered nine collisions against his name” (Exhibit A15 page 7)
MISCONDUCT
The issue of whether the termination was lawful or unlawful, harsh and unjust or fair and reasonable, turns primarily but not exclusively on whether the conduct of the applicant as a tram driver on 30 August 1994 constituted serious misconduct such as justified summary termination without further opportunity to answer the charge of misconduct when and if such misconduct was established.
The union has submitted that the respondent has not stated that the applicant was dismissed for misconduct. This is correct. The respondent does not appear to have ever given the applicant written notice of termination or written grounds for termination. However, the Internal Disciplinary Committee of Inquiry Report of the inquiry held on Monday 24 October 1994 was signed for the Panel of Inquiry by the Chairman of the Panel, Mr Jeffrey Jaraie, Traffic Personnel Officer, Met Tram. The report was tendered as Exhibit A15 and Exhibit R10.
The following statement appears on page 7 of the report:
“Taking into consideration all the relevant evidence provided by Driver Eshak, crew members, and statements obtained from various independent witnesses; the circumstances relating to speed and distance travelled and proved beyond doubt by test results and technical data; the extent of damage incurred to both trams (requiring an excess of $500,000.00 to repair); the large number of injured (16 passengers and 2 PTC crew onboard Tram 2021, and 25 passengers and 2 PTC crew onboard Tram 2106) including 3 passengers with serious injuries, the Panel Members were unanimous that Driver Eshak was guilty of serious neglect of duty and extreme incompetence.
All the above indicated conclusively that he was driving in a dangerous manner, undermining his responsibilities towards the travelling public, his fellow employees, his position and the image of the Public Transport Corporation. He failed to have complete control of his vehicle at the time of the accident, and in doing so, he was also in breach of the Corporation’s Operational Rules and Regulations Nos. 7, 34, 35, 61, 82, 109 and 111 respectively and such conduct justified summary dismissal from any further employment within the industry.”
The union seeks to rely on North v Television Corp. Limited (1976) 11 ALR 599 at 608 and on the statement there of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 2 All E.R. 285 at 287 where he states:
“I do think that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is wilful; it does (in other words) connote a deliberate flouting of the essential contractual conditions”
The union submits that there is no evidence that Mr Eshak’s conduct was wilful (i.e. his conduct in the driving of the tram at and before the collision on 30 August 1994). However, the union has gone much further (see 2nd paragraph page 7 applicants’ final submission) and has suggested that “the respondent...has been unable to establish any evidence which proves negligence and/or carelessness on Mr Eshak’s part”.
The union has cited the Law of Employment Macken, McCarry and Sappideen 3rd Edition 1990 at 196 as follows:
“misconduct connotes positive and intentional wrongdoing whereas other grounds for dismissal, such as incompetence and neglect, do not involve
intentional misconduct”
The union has also cited Macken at 196 and 205 but the passages there cited are not of assistance to the applicant if, contrary to the union’s submission, there is evidence of negligence and the Court finds that the applicant was negligent and/or careless.
Counsel for the respondent drew comfort from the passages cited by the union from Macken at 196 and 205 on the basis that the applicant was negligent in his driving of tram 2021 at and before the collision on 30 August 1994. He drew comfort from the following at 196:
“The failure to afford the requisite skill which had been expressly or impliedly promised, is a breach of legal duty, and therefore misconduct.”
Harmer v Cornelius (1958) 141 E.R. 94
Counsel for the respondent also drew comfort from the following in Macken at 205:
“Generally, summary dismissal will only be justified if there has been a course of negligent conduct although in some circumstances a single negligent act may be sufficiently serious to warrant dismissal. In determining the seriousness of an act of negligence regard must be had, not to the consequences of the act, but to its nature. Naturally the seriousness of consequences likely to result from an act of neglect have a bearing on the characterisation of the neglect as trivial or substantial, conduct likely to seriously endanger the lives of others or cause very extensive damage to property will, it is submitted, rarely be trivial.”
The union has never suggested that the consequences of the collision were in any sense trivial. The union has however claimed that “Mr Eshak was not aware of any act of neglect at the time.” Indeed the union has gone further and has claimed that “The PTC has failed to prove or provide any evidence that his (the applicant’s) action was one of neglect”.
The Court disagrees and has already found that:
(a)the applicant was travelling far too fast approaching a mandatory stop and a stop at which Tram 2106 lay stationary
(b)for whatever reason or reasons the applicant was paying inadequate attention to the track ahead
(c)the applicant’s conduct and performance at the time constituted the following elements of unacceptable conduct and performance all specifically identified in the Panel of Inquiry Report:
(i)serious neglect of duty
(ii)incompetence
(iii)driving in a dangerous manner
(iv)failing to have complete control of his vehicle (i.e. tram no 2021)
(v)breaching Corporation Operational Rules and Regulations Nos 7, 34, 35, 61, 82, 109 and 111
The Court believes that there is ample evidence to draw such conclusions using the test applicable in this case namely a test of balance of probability. The Court is very conscious of the serious consequences in this particular case and not the least of those serious consequences has been the termination of employment of Mr Eshak. If ever there was a case to apply a strict and heavy balance of probability test, close to or bordering on the criminal law test of “beyond reasonable doubt”, this is such a case. Briginshaw v Briginshaw (1938) 60 CLR 336 is authority to that effect. While it is the civil test of balance of probability that applies, the Court has no difficulty in reaching the conclusion that the respondent was negligent to a degree which amounts to serious misconduct. The Court has reached that conclusion after observing the witnesses, noting the conflicts and changes in the statement and evidence of the applicant, viewing the collision scene from a tram approaching that site, and examining the many documents generated by or tendered to the Tram Investigation Accident Board, the Panel of Inquiry and the Appeal Board.
PAST PRACTICES OF THE RESPONDENT
During the hearing the union spent a great deal of time examining the past practices of the respondent “regarding accidents, warnings, counselling, final warnings and the ‘penalties’ meted out to employees” (Applicants’ final submission pages 24, 25 and 26). Counsel for the respondent objected to much of this material and was also required to spend considerable time dealing with it. Although the Court entertained doubts that this material would emerge as relevant much of it was admitted with the identity of the employees and former employees deleted. The material was admitted on the basis that the treatment of other employees (most involved in “car ahead” collisions with other trams) might be relevant in establishing whether the termination of Mr Eshak was harsh, unjust or unreasonable.
The Court has considered the material but it did not prove to be relevant. The Court has assessed the validity, and fairness of the termination on all the circumstances associated with the termination. This was always what the Court was required to do and that was put beyond doubt by the decisions of all 5 judges of the High Court of Australia in the recent decision of Byrne and Frew v Australian Airlines (1995) 131 ALR 422.
THE TERMINATION OF EMPLOYMENT RECOMMENDATION 1982
The union has claimed that the conduct of the applicant did not justify summary termination at the conclusion of the Panel of Inquiry hearing and that, as section 170CA(1)(b) provides that the object of Division 3 is to give effect or further effect to the Termination of Employment Recommendation 1982, paragraph 7 of the Recommendation required a written warning to be given to the applicant prior to this termination for misconduct if, as the union denies, the applicant’s conduct can be construed as misconduct.
Paragraph 7 of the Recommendation, which is also known as Recommendation No 166 of the General Conference of the International Labour Organisation, states:
“The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning.”
Firstly, the clauses of the Recommendation (Schedule 11 to the Industrial Relations Act1988) should not be applied as if they formed part of the domestic law of Australia. (Johns v Gunns Ltd (1995) 60 I.R. 258).
Secondly, the Court has found that, in effect, the applicant’s careless and inattentive driving constituted misconduct sufficiently serious as to justify termination. It therefore follows that while, in the words of Northrop J. in Johns at 270, “the terms of Recommendation 166 may give guidance to what can constitute reasonable opportunity for an employee to defend himself or herself against allegations made by the employer”, clause 7 of the Recommendation can have no application to conduct which justified termination without repetition “on one or more occasions”.
SECTION 170DC - OPPORTUNITY TO RESPOND
The union cited several authorities including Byrne and Frew v Australian Airlines Ltd (1994) 52 IR 10 at 64 where Gray J stated:
“First, it was obliged to conduct a reasonable investigation, to ascertain what view it should take of any circumstance which it might take in account in deciding to dismiss the appellants. Second, it was required to formulate what it alleged the appellants to had done or failed to do. Third, it was obliged to put the allegations of commission and omission to the appellants, and to give them a fair opportunity to be heard as to those allegations. Finally, it was obliged to give to the appellants a fair opportunity to be heard on whether they should be dismissed, if they were to be regarded as guilty. The respondent was obliged to take in account matters not directly connected with the alleged offence which might mitigate the penalty.”
I have concluded that the respondent:
conducted a reasonable investigation
formulated what the applicant had done and what the applicant had failed to do
put the allegations of commission and omission to the applicant and the union
gave the applicant and the union a fair opportunity to be heard on whether the applicant should be dismissed and on the question of penalty
As I have already indicated:
the accident was investigated by the Tram Accident Investigation Board
the applicant made a statement on 9 September 1994, nine days after the accident and a union representative was present when the statement was taken
prior to the Panel of Inquiry hearing the applicant and his representatives were given the opportunity to look at the voluminous and detailed material prepared as a result of the Tram Accident Board Investigation and there is no evidence additional time would not have been granted for such examination had additional time been so sought
the applicant was represented at the Panel of Inquiry
the applicant’s representative was present while the Panel deliberated and when the Panel decided unanimously to dismiss the applicant
the applicant’s representative addressed the Panel on penalty
(vii)the applicant was represented at the proceedings before the Appeal Board
While the Court has concluded that there were aspects of the Panel of Inquiry and Appeal Board procedures applied to the applicant and the union which could be improved, the Court is quite satisfied that the applicant and the union were given ample opportunity to respond to the allegations within the terms of section 170DC.
Having so concluded, I nevertheless suggest that the Traffic Personnel Counselling System, including the counselling, disciplinary and termination procedures and the hearing and appeal procedures, should be reviewed in the light of Division 3 Part VIA of the Industrial Relations Act 1988.
THE APPLICANT’S DRIVING RECORD
The applicant had a good driving record. During the hearing Counsel for he respondent conceded this. This is another matter on which I have already commented and about which I have expressed some concern. However, I have already concluded and repeat that, even if the incorrect suggestion of a supposed poor driving record was considered by all members of the Panel of Inquiry prior to the decision to dismiss, and even if all members of the Panel placed weight on this incorrect information, the Panel established six factors which led to the decision to terminate the applicant’s employment. These factors did not include prior driving record. These factors led to the Panel, and this Court, concluding that the applicant:
was negligent when driving Tram 2021 on 30 August 1994
drove the tram in a dangerous manner
failed to control the tram
breached a number of the respondent’s General and Operational Rules
OTHER MATTERS
I have considered all cases cited during the hearing but it has not been necessary to comment all of those cases.
Other matters covered during the hearing included the following with exhibit numbers where relevant:
the rule in Jones v Dunkel (1959) 101 CLR 298 and the failure of the union and the applicant to call as a witness the union representative, Mr Martin Strebbs
the statements taken from Jeff Sutcliffe, Timothy Paul Walton and Paul Gomes, passengers on tram 2021 on 30 August 1994 at the time of the collision (R7, R8 and R4)
the statement of Laksapathi Serasinghe, the conductor of tram 2021 at the time of the collision (R4)
Maintenance and Last Brake Test Reports of tram 2021 dated 21, 27 and 29 June 1994 (R4)
the Technical Report of 21 September 1994 of the collision on 30 August 1994 (R4)
the report on the applicant of 21 September 1994 by Ms Beppie Hedditch, Counsellor, Met Tram (R4)
(vii)a list of (PTC) “customers” allegedly injured in the collision of 30 August 1994 (R4)
(vii)evidence that on the East Brunswick/St Kilda route (and other metropolitan routes), there was from time to time a bunching up of trams of which the union had complained and which was said at times to increase the difficulty of safe driving
(viii)the hours worked and the time taken off by the applicant in the period 1 January 1994 to 30 August 1994 (A10 and A11)
I have considered these matters and all material exhibited but it has not been necessary for me to comment further.
It has also not been necessary for me to comment in more detail on the following matters which are briefly mentioned in the course of the judgment:
Traffic Accident Investigation Board Report (R4)
report of the Appeals Board Hearing 18 November 1994 (A23)
the union record of Panel of Inquiry proceedings 1990 to 1994 (A31)
my view of the tram route and the collision scene from a tram similar to tram 2021 and with a tram similar to tram 2106 stationary at the City Road stop, South Melbourne (on the St Kilda Light Rail Reserve)
I have noted that most if not all of the material presented at the Panel of Inquiry and provided prior to the inquiry to the applicant and his union representatives (R4) was also presented to the Appeal Board (A20) but, apart from the comments and suggestions already made, I have concentrated on the circumstances of the termination on 24 October 1994 by the Panel of Inquiry. The only relevance of the Appeal Board proceedings is that those proceedings provided a further opportunity for the applicant and his union to respond to the allegations made against him and to comment on the penalty, the termination of employment.
FINDING
For all the reasons outlined above the Court finds that:
the respondent terminated the employment of the applicant on 24 October 1994
the termination was for valid reasons connected with the applicant’s performance and conduct in driving Tram 2021 on the St Kilda Light Rail Reserve on 30 August 1994
the termination was not harsh, unjust or unreasonable
the respondent has discharged the onus of proof placed upon it under section 170EDA(2)(a) and has demonstrated to the satisfaction of the Court that the termination was based on the conduct and performance of the applicant
the union and the applicant have not satisfied the Court that the termination was harsh, unjust or unreasonable
ORDER
The application is dismissed.
I certify that this and the 23 preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 4 January 1995
Appearances:
For the Applicants : Mr Peter Parkinson, Industrial Officer
Public Transport Union
For the Respondent : Mr G A Devries instructed by
Ms Geraldine Sharman, solicitor and corporate counsel
Public Transport Corporation
Date of Hearing : 21 to 23 June 1995, 26 June 1995,
2 and 11 August 1995
Judgment : 4 January 1995
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