Flavel v RailPro Services Pty Ltd
[2013] FCCA 1189
•29 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLAVEL v RAILPRO SERVICES PTY LTD | [2013] FCCA 1189 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – Dispute about reason for dismissal – dismissal of train driver alleged to be in contravention of general protections – exercise of a workplace right – worker allegedly suffering from a disability – found dismissal was for prohibited reasons. |
| Legislation: Fair Work Regulations 2009 (Cth), r.6.04(a)(i) |
| The Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & Anor [2012] HCA 3 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 605 Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199; [1917] HCA 28 Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | COLIN FLAVEL |
| Respondent: | RAILPRO SERVICES PTY LTD |
| File Number: | ADG 24 of 2012 |
| Judgment of: | Judge Simpson |
| Hearing date: | 16 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 29 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Wright |
| Solicitors for the Applicant: | Wright & Kirsten Lawyers |
| Counsel for the Respondent: | Mr R Manuel |
| Solicitors for the Respondent: | Marsh & Maher |
IT IS DECLARED THAT:
The respondent had contravened s.340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action in terminating the applicant’s employment on 29 November 2011 because the applicant exercised, and intended to exercise, a workplace right, namely his responsibility under s.21 of the Occupational, Health, Safety and Welfare Act 1986 (SA) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving a train while being mentally or physically ill.
The respondent had contravened s.351 of the Fair Work Act 2009 on 29 November 2011 by unlawfully terminating the applicant’s employment because of his physical and mental disability in contravention of s.15(2) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
The applicant’s application for orders for an alleged contravention pursuant to s.352 of the Fair Work Act 2009 (Cth) is dismissed.
Further consideration of the matter is adjourned to 9.45am on 17 September 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 24 of 2012
| COLIN FLAVEL |
Applicant
And
| RAILPRO SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an Application brought by Mr Colin Flavel (“Mr Flavel”) who says that on 30 November 2011 he was dismissed by his employer, RailPro Services Pty Ltd (“the respondent”), in contravention of certain general protection provisions provided for in Chapter 3 of the Fair Work Act 2009 (Cth) (“the Act”).
In these reasons a statement of fact is a finding of fact arrived at on the balance of probability after a consideration of all the evidence and my assessment of the witnesses.
Pleadings
The contraventions alleged in Mr Flavel’s claim filed on 14 February 2012 are as follows:
“1. Section 340(1)(a)(ii) and (iii)
A person must not take adverse action against another person;
Because the other person has exercised a work place right; or
Proposed to exercise a workplace right.
Section 341(1)(a) – Workplace Right Relied Upon by Applicant
A person has a workplace right if the person;
Is entitled to the benefit or has a role or responsibility of a workplace law or workplace instrument.
The Applicant relies generally on the Occupational Health Safety and Welfare Act 1986 but also has regard to s21 – Duties of Worker in that Act.
The Applicant says it would have been unsafe to drive the train in the current state he was in therefore alerting his employer of his concern.
2.Section 351(1)
An employer must not take adverse action against a person who is an employee of the employer because of persons physical or mental disability.
The Applicant says the respondent was aware he was unable to drive the train as a consequence of feeling violently ‘ill’ and ‘anxious’. A disability can be a temporary or lasting disability and the respondent was alerted to this disability (that is, feeling violently ill and anxious) on at least two separate occasions yet proceeded to dismiss the applicant when they knew he was suffering from such a disability.
3.Section 352
An employer must not dismiss an employee because the employee is temporarily absent from work because of injury or illness of a kind proscribed by the regulations.
The Applicant says he was temporarily absent from work and was dismissed as a consequence of not undertaking tasks he would otherwise have accomplished had he not been so absent. The injury is a kind proscribed by regulations.”
The applicant says in his Form 2 that he seeks compensation, re-instatement and a pecuniary penalty.
The respondent filed a Response on 9 March 2012 in which it indicated its opposition to the orders sought. It provided the following grounds for opposing Mr Favel’s claims:
“1.The Applicant was asked at a meeting on 29 November 2011 to explain why he had refused to undertake assessment and he explained that he was not ready for the assessment without the assistance of his notes.
2.The Applicant did not inform those present at the meeting that his failure to undergo assessment was due to any occupational health and safety risk, illness or injury, and at the time the decision to terminate employment was taken those making the decision had no knowledge that the Applicant raised any occupational health and safety risk or that he had claimed to have suffered any illness or injury.
3.Those persons who made the decision to terminate the Applicant’s employment were not aware the applicant had asserted any workplace right, and the decision to terminate employment was not in any way based on such workplace right being exercised or otherwise.”
The applicable legislation and its interpretation
Certain provisions in Chapter 3 Part 3-1 of the Fair Work Act 2009 (Cth) make it easier than it otherwise would be for Mr Flavel to establish the contraventions of the three protective provisions that he alleges.
Section 360 provides that, for the purposes of Part 3-1, “a person takes action for a particular reason if the reasons for the action include that reason.”
Section 361(1), which casts a burden of proof on an employer to show that it did not take the action for a prohibited reason, relevantly provides:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…”
The High Court has recently had this to say about the correct approach to the application of these sections[1], albeit in relation to an alleged contravention of s.346 of the Act:
[1] The Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & Anor [2012] HCA 3
“41The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
42Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s.361(1)), and consideration of the employee’s position … at the time the adverse action was taken.
43Clearly a defendant employer interested in rebutting the statutory presumption in s.361 can be expected to rely in its defence on direct testimony of the decision-maker’s reason for taking the adverse action. …
44… The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”[2].
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s.361 if no direct testimony is given by the decision-maker acting on behalf of the employer.[3] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker[4] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[5]
[2] Purvis v New South Wales (2003) 217 CLR 92 at 163 [236] per Gummow, Hayne and Heydon JJ; [2003] HCA 62.
[3] See, for example, General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; 12 ALR 605 at 615.
[4] See, for example, Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J, 211 per Higgins J; [1917] HCA 28.
[5] See, for example, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].
…
65.In this case the primary judge adopted the correct approach to the relevant provisions. Dr Harvey gave evidence of her reason for taking adverse action against Mr Barclay and also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the AEU. … The appellant discharged the burden cast upon it to show that the reason for the adverse action was not a prohibited reason, and that Mr Barclay’s union position and activities were not operative factors in him being required to show cause. …”
The following extracts are relevant to the three causes of action that the applicant brings:
All three of the applicant’s grounds rely on s.340(1) of the Fair Work Act 2009 which states as follows:
“340 Protection
(1)A person must not take adverse action against another person:
(a)because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
The applicant’s first ground also relies on s.21 of the Occupational Health, Safety and Welfare Act 1986 (SA) which states as follows:
“21 Duties of workers
(1)An employee must take reasonable care to protect the employee's own health and safety at work. Division 7 fine.
(1a)An employee must take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work. Division 6 fine.
The applicant’s second ground also relies on s.351(1) of the Fair Work Act which states as follows:
“351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
The applicant’s second ground also relies on s.15(2) of the Disability Discrimination Act 1992 (Cth) which states as follows:
“15 Discrimination in employment
…
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.”
The applicant’s third ground also relies on s.352 of the Fair Work Act 2009 which states as follows:
“352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
Evidence relied upon
Mr Flavel relied on his affidavits filed on 13 July 2012 and 7 August 2012. He also tendered an undated report of Dr Marcus Bem, a psychiatrist who examined Mr Flavel on 20 March and 19 July 2012.
The respondent relied on an affidavit of Brian David Stewart McNaught filed on 30 July 2012. Mr McNaught stated that he was employed by SCT Logistics Pty Ltd (“SCT”) as Victoria National Rail Accreditation and Compliance Manager and is based in Melbourne. Other information that Mr McNaught provided suggests that, in fact, he is actually employed by Twentieth SuperPace Nominees Pty Ltd (“TSPN”) trading under the business name SCT Logistics. He says that he is responsible for the operations of Specialised Bulk Rail Pty Ltd (“SBR”) and that SBR is a rail operator that sources its staff from the respondent. He says that the respondent is a subsidiary of SBR and that the respondent employs the drivers and other employees who are then required to undertake work for SBR.
The respondent also relied on an affidavit of Mr Rocco Depietro filed on 1 August 2012. Mr Depietro is employed by TSPN as a train co-ordinator.
The respondent also relied on the affidavit of Mr Joe Pastore. Mr Pastore is employed by TSPN as its National Human Resources Manager.
The respondent also relied on the affidavit of Mr Andrew Alexandrides. Mr Alexandrides is employed by the respondent as a train driver.
The respondent tendered a bundle of documents providing Mr Flavel’s pay history with the respondent for the period 11 December 2011 to 10 August 2012.
Oral evidence was given by Mr Flavel, Mr McNaught and Mr Pastore.
Who was the decision-maker?
The evidence about who, on behalf of the respondent, made the decision to take adverse action against Mr Flavel by dismissing him, is not entirely clear. The decision to dismiss was made at the meeting held at Regency Park on 27 November 2011. Apart from Mr Flavel, those present were Mr McNaught, Mr Pastore and Mr Yates. Mr Yates did not give evidence.
When Mr McNaught gave evidence he talked in terms of “… we had made a decision to terminate him”. Mr McNaught also said that he did not have authority to terminate employees, and that because of this, he “went with Mr Pastore who was the HR Manager”.
Mr Pastore gave evidence that he “… assisted in that decision (to dismiss) …”.
When asked by the Court:
“Well, who makes the final decision?”
Mr Pastore said:
“In this particular case, Brian was, I suppose, giving (sic) the authority to do so from his manager. …”
The Court then asked:
“In this case … who was authorised to decide whether the person should be dismissed?”
Mr Pastore said:
“Brian was authorised …. The decision was made between the three of us who were there at the time.”
Mr Pastore said that the decision to terminate was unanimous.
I find that the adverse action to dismiss was a joint decision of Messrs McNaught, Pastore and Yates and that these three persons acting together were the decision-makers.
Findings
At the time of trial, Mr Flavel was 58 years old and a qualified locomotive driver. He had worked in the rail industry since 1974. He had train driving experience in Western Australia that was extensive which included driving heavy haulage bulk trains of 34,000 tonnes with a length of 2.4km.
In early 2011, Mr Flavel answered an internet advertisement calling for locomotive drivers with heavy haulage experience for locations throughout Australia. He was contacted and invited in for an interview with a representative of the respondent. He was offered a full time permanent position as a locomotive driver based in Adelaide and was promised a minimum wage of $130 to $150,000 per year with a 5% increase in salary every year. He accepted the offer.
Mr Flavel commenced work with the respondent on 23 April 2011. His employment became permanent on 23 July 2011. It would appear that Mr Flavel had a 3 months trial period. The respondent provided Mr Flavel with an induction with training in the local rules and regulations for various locations. He then commenced route knowledge training. He was eventually assessed as competent for return trips on the line between Tarcoola to Manguri. He continued his work as a locomotive driver without incident until 11 October 2011 when a disaster occurred.
Soon after 1.00am on Sunday 11 October 2011 the train that Mr Flavel was driving came into collision with another train. Fortunately, no-one was hurt in the accident. However, the accident caused approximately $5 million damage.
The accident occurred at Dry Creek just to the north of Adelaide. Mr Flavel was not hurt physically but was in shock after the accident.
At the time of the accident, Mr Flavel was being trained under the supervision of Mr Wayne Fischer.
Mr Flavel remembers telling Mr Yates (the respondent’s Train Crewing Supervisor based in Adelaide) that he was in shock. The day following the accident, Mr Yates drew on a whiteboard the cycles of emotion that Mr Flavel would experience as a result of the accident. He remembers that anxiety and sleeplessness were two of the matters that were discussed.
An investigation took place in relation to the accident. Mr Flavel was eventually advised that he and the supervisor, Mr Fischer, were held to be both at fault for the accident. As will be seen later in these reasons, Mr Flavel says that he was eventually given a final warning as a result of the incident.
On 19 November 2011, Mr Flavel’s wife, Jo Flavel, sent an email to Ray Jenke, the respondent’s National Operations Manager.Her email said in part:
“… I know you are a man of importance and apologise for intruding but I want to ask you for your help for both Wayne Fischer and my husband, Colin Flavel, to keep their jobs. Both men deserve a chance. Both men have wives in wheelchairs. I know your company has suffered enormous losses as to the company who mines the iron ore. If we could sell our house we would to help cover your company’s losses. My husband is punishing himself – he has been told not to speak with anyone. He is overwhelmed with grief – he takes pride in not endangering his mates and that they go home safely to their families each night. He takes pride running his train economically saving fuel. He takes pride not to damage the company’s equipment – he gets a sense of satisfaction when the train or wagons just “click” together. His first priority is safety. But this time, something catastrophically went wrong; he was driving a section of track in an area he had not driven a train before, and had very little driving experience here in Adelaide, and was under instruction from Wayne to increase power moments before the collision – Colin says thankfully he didn’t increase power. Every day Colin faces the fact that he or Wayne could have been killed or injured. Colin has said to me, your company said, he did everything technically correct and Colin believes the train should have stopped before hitting the other train because he applied the emergency break some 570 metres before the train collided, basically the length of the street where we are renting in Brooklyn Park, but the train didn’t pull up as it should have – some wagon brakes released when they should not have after the train came to a stop which too was not consistent with expectations.
Colin loves working for SBR, a Peter Smith company, a company who too faced enormous challenges breaking away from conventional trucking methods.
Please help Wayne Fischer and Colin Flavel keep their jobs with SBR.”
At some time in the week commencing 14 November 2011, Mr Flavel was requested to attend a meeting to be held on 21 November 2011 at the respondent’s office at Regency Park.
Mr Flavel attended the respondent’s office at Regency Park as requested. Mr Yates was in attendance. A telephone conference was held with other representatives of the respondent.
The theme of the conversation was that the crash investigation had been completed and there was a finding that Mr Flavel was at fault. This was so even though Mr Flavel was under supervision at the time of the accident. Mr Flavel was further advised that it had been decided that mitigating circumstances prevailed and that he would not be sacked but would be given a final warning or words to that effect.
Also discussed in the telephone conference was the further training that Mr Flavel was to receive as well as the fact that Mr Flavel would be required to undertake a competency based assessment. No date for the assessment was given at that time.
In late November Mr Flavel received a letter advising inter alia that he would be assessed on 27 November whilst performing driver duties. On the same day that he was advised about the competency assessment, he received a letter confirming that he was being given a final warning.
The assessment of competency letter was in the following terms:
“Dear Colin
Assessment of competency
Since your commencement of employment with Rail Pro on 27th April 2011, you have been under training to enable you to achieve the level of competency that is required for drivers to perform their duties without supervision.
You have also had additional training and supervision since you were involved in an accident on 11 October 2011.
Rail Pro will now arrange for your competency to be formally assessed and this assessment will take place on 27th November 2011 and the 3rd December 2011.
You are required to pass all necessary elements of assessment in order to be able to perform the job for which you have been employed.
If you are not successful in this assessment we will discuss any shortcomings with you, but must make you aware that a failure to achieve the required competency standard may result in a decision being taken to terminate your employment.
This is an important assessment and if you have any question about it please do not hesitate to contact me to discuss the process further.
I wish you the best of luck
Yours sincerely
Ray Jenke
National Operations Manager – Rail”
The final warning letter was in the following terms:
“Dear Colin
Final Written Warning
Following an accident on 11 October 2011 which caused substantial damage to SCT property an investigation has been carried out into the cause of the accident.
In summary the accident has been attributed solely to drive error and in particular the fact that you and another driver working on train 1901S on the day of the accident failed to observe and respond to a signal showing “caution”.
We met with you on 21 November 2011 at which time you were given an opportunity to explain how the accident occurred.
Having considered the information you have provided we are of the view that:
1.there is no reasonable explanation for your failure to see the caution signal; and
2.had you noted and abided by the signal this incident could have been avoided.
Your action has caused the Company considerable financial expense.
This incident also demonstrates that you were not performing your job to a standard that is required by RailPro and necessary for the safe execution of your duties.
In accordance with the recommendations of the report into this incident RailPro is issuing you with a final written warning.
If there is any repetition or similar incident in the future or if there is further example of you performing your job without adequate care a decision may be taken to terminate your employment.
Yours sincerely
Ray Jenke
National Operations Manager – Rail”
Mr Flavel says that after he received the final warning letter, he felt terrible as it was the first time that he had been formally blamed for the accident. He says that he felt really guilty.
On 25 November 2011, Mr Flavel sent an email to certain colleagues with the respondent. The email was in the following terms:
“Dear Ray
I wish to apologise for the role I played in this terrible accident on 11 October 2011.
I am sincerely sorry for the events and actions that lead to this costly accident and wish to thank you, the staff and management for their compassionate manner throughout the investigation.
I am humbled by the support offered to me by you, Ron Bury, Brian McNaught, David Urry, Bob Yates, Della Rodrigues, Andy Alexandrides, Wayne Fischer and my colleagues. I will endeavour to uphold the faith you and your team have placed in me in all future duties for RailPro.
Please convey my sincerest apologies to Mr Peter Smith and others in the companies that have worked so hard in overcoming this significant event.
Sincerely
Colin Flavel”
Subsequent to the accident, Mr Flavel’s work duties required two return trips to Rankin Dam which is near Coober Pedy in the north of South Australia. During those two trips, he was not permitted to operate the locomotive. Between the time of the accident and the time of his assessment Mr Flavel had not been given any further practical experience or training in operating the IMX train. He had also not been told by his employer that they considered he was for any reason, not capable of performing his duties as a driver.
On Friday 25 November 2011, Mr Flavel received a telephone call in the evening from a fellow employee, Mr Della Rodrigues. Mr Rodrigues informed him that he (Mr Flavel) would be working a relay service to Rankin Dam and return on Sunday 27 November 2011 and that he was to be assessed on driver’s duties.
In the very early hours of Sunday morning 27 November 2011 Mr Flavel arrived at the main yard at Port Augusta where the train was kept. The shift was to start at 30 minutes past midnight. Coincidentally, this was at about the same time that the train collision occurred on 11 October 2011 just six weeks prior.
Mr Alexandrides and Mr Courtney were also present. Very little was said between the three of them while they were carrying out their duties preparing the train for departure to Rankin Dam.
Mr Flavel boarded the train and commenced to prepare to drive. He became extremely nervous and felt unwell. Mr Flavel says that he felt that the atmosphere in the cab was icy and not relaxed. He attributed this to the fact that he was feeling anxious. He says that his nervousness increased and that he started to feel sick. He wanted to vomit. He says that he drank some water but his condition worsened. He says that he could not bear to touch the controls and that he was confused about his condition. He set up his notes and diagram near the driver’s seat. He was then told by Mr Alexandrides that he could not use his notes. Mr Flavel told Mr Alexandrides that he could not drive without his notes. Mr Alexandrides again said that he could not use them.
Mr Alexandrides asked Mr Flavel what he had been told about the assessment. Mr Flavel said that he was informed that he would be observed by Mr Alexandrides and a determination would then be made as to what further training would be needed before he would be assessed.
Mr Flavel says that his condition did not improve. Mr Flavel told Mr Alexandrides that he could not drive as he was unwell and unable to operate the train safely. He told Mr Alexandrides that he felt violently ill. Mr Alexandrides queried him on this statement. Mr Flavel reaffirmed to Mr Alexandrides that he was sick, wanted to vomit and needed to be relieved from driving the train.
Mr Alexandrides left the cabin for a short period. When he came back he told Mr Flavel that he had telephoned the SBR Controller and informed him of what he (Mr Flavel) had been saying. Mr Alexandrides then took up the driver’s position and Mr Flavel sat in the middle seat. Mr Alexandrides asked Mr Flavel if he wanted to return to the crew van. Mr Flavel indicated that he wished to stay on the locomotive and observe.
At some stage on the journey back to Adelaide, Mr Alexandrides informed Mr Flavel that he was to be picked up by taxi at Bishops Loop and taken to the RailPro Office at Regency Park. No reason was given as to why he was required to go to the Regency Park office.
On arrival at the Regency Park office, Mr Flavel entered the building and found the office empty. He sat down and waited. Some time later, a car pulled into the car park and two men got out and entered the office. These two people were Joe Pastore (the respondent’s National Human Resources Manager based in Melbourne) and Brian McNaught (National Rail Accreditation and Compliance Officer, also based in Melbourne). At the same time, Mr Yates (who was Train Crewing Supervisor based in Adelaide) came into the office from another area of the building and the meeting began.
Mr Flavel still had no idea that he was about to be dismissed.
Mr Pastore and Mr McNaught informed Mr Flavel that they had flown from Melbourne that morning to conduct the meeting. Mr Flavel told those present that he had not been told what the purpose of the meeting was.
Mr McNaught said that Mr Flavel had placed them in a difficult position because he had refused to do the competency assessment. He asked Mr Flavel whether he had anything to say. Mr Flavel responded that he had not been confident that he could carry out the assessment as he had been feeling sick, dry in the mouth, highly anxious and wanted to vomit. He said that he considered that could not perform the driver’s duties safely and had therefore reluctantly elected to be relieved of the driving duties. He told those present that he had been unaware prior to getting onto the train and being put in the driving position that he would be ill.
Mr Flavel informed those present at the meeting at Regency Park that he had only had two trips ‘over the corridor’ since the accident and had not received any training or practical experience since the accident. None of those present at the meeting responded to his comment.
Mr Flavel was then told that the meeting would be adjourned for a short period. He was requested to leave the office and wait outside.
While Mr Flavel was waiting outside, Mr Pastore left the meeting to speak briefly with him. He asked Mr Flavel if he wanted to add anything to what he had said inside. Mr Flavel told Mr Pastore that he saw little merit in arguing the point any further, as it appeared that a decision had already been made. Mr Flavel repeated his earlier statement that he had felt ill on the train and simply could not drive. Mr Pastore then returned to the meeting.
Eventually Mr Flavel was called back into the office and again asked by those present whether he had anything further that he wished to add. Mr Flavel repeated his earlier statement about having been ill as a result of being asked to drive the train and that he had not had any further training. Mr Yates said words to the effect, “I’m not having this. It could go on for three years”.
Mr McNaught repeated his earlier comment that the company had been put in a difficult position. He then said that Mr Flavel’s services were terminated.
Mr Flavel then left the office.
On or about 30 November 2011, the respondent sent Mr Flavel a letter confirming that his employment was terminated. The letter was in the following terms:
“Dear Colin
Re Termination of Employment
Further to our meeting yesterday I confirm that RailPro Services Pty Ltd decided to terminate your employment.
The reasons for termination are:
On 21st November 2011 you were instructed to undergo assessment of competence, with such assessments to take place on 27th November 2011 and on the day of the assessment you refused to allow the assessment to be concluded without reasonable excuse.
You have failed to achieve the required level of competence to fulfil the inherent requirements of the role.
At our meeting you were asked to provide explanations in respect of the above and provided no explanations that are satisfactory to RailPro.
You are not presently competent to work independently and after 7 months of employment driving the routes against which you were to be assessed RailPro consider that you have had sufficient opportunity to become proficient.
As you have neither demonstrated proficiency and have refused to allow a formal and necessary assessment to be undertaken RailPro have no alternative but to terminate your employment.
You left the meeting prior to its conclusion yesterday, but we confirm that you will be paid for work done up to 29 November 2011 and will be paid in addition 1 week’s notice in lieu. You are not required to attend for work during the notice period and the effective date of termination of employment is 29 November 2011.
Please ensure all company property in your possession is returned to Bob Yates immediately, and if you have any questions please do not hesitate to contact Bob Yates.
Yours faithfully
Joe Pastore
National Human Resources Manager”
Analysis and conclusions
Mr McNaught’s evidence about what was said at the meeting differs to Mr Flavel’s evidence. Mr McNaught denies that Mr Flavel said anything about illness preventing him from undertaking the test. Mr McNaught suggested that the only reason given by Mr Flavel was that he could not (or would not) do the test without being permitted to use his notes.
Mr Flavel says that he made it quite clear at the meeting that he declined to undertake the test and drive the train because he felt that he would be violently ill if he did so.
I prefer Mr Flavel’s evidence to that of Messrs McNaught and Pastore. There is no doubt in my mind that Mr Flavel was feeling ill when ordered to drive the train. It is hard to believe that Mr Flavel would not have given this reason for not driving the train at the meeting dealing with his possible dismissal.
As mentioned previously, the third member of the decision-makers, Mr Yates, did not give evidence. He was an important witness who I would have expected to be called. I consider it appropriate to draw the inference that Mr Yates’ evidence would not have assisted the respondent’s case.[6]
[6] Jones v Dunkel (1959) 101 CLR 298.
Importantly, when deciding whether Mr McNaught’s evidence should be preferred, Mr Flavel says that he made it clear to Mr Alexandrides when he was being asked to drive the train on 27 November 2011, that he felt he would be violently ill if forced to drive the train. In his evidence, Mr Alexandrides confirms that Mr Flavel said this. In addition, an email from Mr Depietro dated 28 November 2011 sent to Noel Ramsey, General Manager SBR, and copied in to Messrs Jenke, Bury and Yates, provides further corroboration that Mr Flavel told Mr Alexandrides that if he was required to drive the train, he would be violently ill.
I accept Mr Flavel’s evidence that he refused to undertake the assessment, with or without his notes, and that his refusal was because he genuinely believed he would become violently ill if he did so. It would clearly have been unsafe for a train driver to operate a train whilst being violently ill. It was proper therefore for Mr Flavel to have declined to drive the train and thereby not take the test.
We now know from the report of Dr Bem that since the train crash Mr Flavel has suffered from a post-traumatic stress disorder which is now chronic. He also suffers from moderately severe depression. These conditions are as a consequence of the train crash. It would seem that Mr Flavel was putting on a brave face after the train crash which he was able to hold onto until he was asked to undertake the test in the early hours of 27 November 2011. It seems likely that Mr Flavel’s reluctance to drive the train as he felt unwell has a sound medical basis.
Mr McNaught gave evidence that he had spoken to Mr Yates at length about the accident and the impact it might have on both Mr Flavel and Mr Fisher. Mr McNaught says that he has experience in dealing with the after effects of accidents and in particular the possibility of those involved suffering some adverse effects as a result. He said that he has lectured at an industry conference on the subject and on methods to adopt to deal with the after effects of accidents on employees. He said that he asked Mr Yates to ensure that both Mr Flavel and Mr Fisher were fully aware that they may suffer some ill effects and to ensure they were also aware that the respondent would provide them with counselling and assistance as necessary. He says that Mr Yates informed him that Mr Flavel “did not seem impacted by the accident” but that Mr Fisher had lost weight and appeared more withdrawn in his manner. He says he asked Mr Yates to keep an eye on both employees for signs of behavioural changes, which might indicate psychological issues arising from the collision. He says that Mr Yates reported that Mr Flavel’s behaviour remained unchanged. He says that at no time did Mr Flavel complain of suffering any ill effects or make a claim for sick leave or even make a claim for worker’s compensation.
Mr McNaught said that he interviewed both employees on a number of occasions about the cause of the accident and discussed with them their personal feelings and whether they suffered any ill effects. Perhaps not surprisingly, both men said they were okay. Mr McNaught acknowledged that what each of the men told him was not necessarily a good indicator of sound mental health but that, with Mr Yates’ observations, he was confident that both men would ‘recover’. In my opinion, neither Mr McNaught or Mr Yates were qualified to give opinions about Mr Flavel’s psychological state.
Mr McNaught says nothing about why the respondent did nothing pro-active to ensure that these employees had no adverse reactions to the traumatic event of the train crash by requiring each of them to see a suitably qualified professional to deal with the effects of the trauma.
Mr McNaught knew of the letter of 19 November 2011 from Mr Flavel’s wife[7] in which she said that Mr Flavel was “punishing himself” and that he was “overwhelmed with grief”. She went on to say that “every day (Mr Flavel) faces the fact that he … could have been killed or injured”. Undoubtedly, that letter warned the respondent of Mr Flavel’s fragile mental state. Notwithstanding this, on 21 November 2011, the respondent informed Mr Flavel at a meeting that he was at fault for the accident and that although he was not to be sacked, he was to be given a final warning.
[7] Para 36 of these reasons.
Not surprisingly, Mr Flavel suffered further anxiety as a result of these events.
Next, the respondent sent a letter to Mr Flavel informing him that he was required to undergo competency tests on 27 November and 3 December 2011. The letter from Mr Jenke stated, in part, that “(the respondent) must make you aware that a failure to achieve the required competency standard may result in a decision being taken to terminate your employment”. This letter was received by Mr Flavel on the same day that he received the “Final Written Warning” letter. Mr Flavel was being told that his performance on the test was likely to determine whether he continues to be employed by the respondent. This put Mr Flavel under additional pressure.
On 25 November 2011, Mr Flavel sent a letter of apology to the respondent. I consider the apology to have been sincere. It serves to highlight the feelings of guilt that Mr Flavel was carrying at this time. Again, this letter is an indication of the stress that Mr Flavel was under.
It is in this context that the respondent terminated Mr Flavel’s employment.
I consider it more probable than not that the three decision-makers for the respondent, Messrs McNaught, Yates and Pastore, were aware that Mr Flavel had a physical or psychological condition that resulted in him becoming violently ill when required to drive a train.
They also knew that treatment of Mr Flavel’s condition might take quite some time to treat. Mr Flavel says that at the meeting, Mr Yates said words to the effect, “I’m not having this. It could go on for three years”. These words are extremely illuminating of the respondent’s real concern. They knew that treatment may never rid Mr Flavel of his condition. They knew that he had refused to drive a train on 27 November 2011 and were concerned that he might continue to refuse to drive trains for an indefinite period.
Mr McNaught gave evidence that in making up his mind to dismiss Mr Flavel, he did not consider anything other than Mr Flavel’s competence. I do not accept this evidence as the whole truth. If competence as a driver were the decisive factor in Mr McNaught’s mind in deciding whether or not to dismiss, it seems strange that Mr McNaught did not get to the bottom of why this man, who had been a train driver for some 37 years, was now indicating that he would (or could) not drive with or without his notes. It is to be remembered that Mr Flavel had been employed by the respondent on a permanent basis after a three month trial period. He had been working for the respondent for many months prior to the accident without the respondent apparently having any concerns about his performance. If the respondent had wanted, say a 12 month trial period for Mr Flavel, they should have raised that with him before he was employed.
If Mr McNaught was saying that he wanted Mr Flavel to drive without his notes and that Mr Flavel said that he would not, I would have expected the respondent to have taken steps to teach Mr Flavel to be able to drive without notes. No explanation has been provided by the respondent as to why this would not have been the appropriate step to take. Such training does not appear to have been a topic discussed at the dismissal meeting. I would have expected it to be a major topic discussed if it really was a major concern for the respondent. The fact that it was not discussed lends support to the conclusion that the ability to drive without notes was not an important consideration in the context of whether or not Mr Flavel should be dismissed.
I find that Mr Flavel’s competency was a matter of concern to the three decision-makers but that it was not a reason for his dismissal.
In my opinion, the decision-maker’s reason for Mr Flavel’s dismissal was because Mr Flavel’s health at that point in time prevented him from undertaking his duties. The respondent was requiring Mr Flavel to undertake duties that they knew, or at least suspected, he would be unable to perform.
I find that the respondent terminated Mr Flavel’s employment because Mr Flavel had exercised a workplace right, or proposed to exercise a workplace right. The workplace right was Mr Flavel’s exercise of his responsibility under s.21 of the Occupational, Health, Safety and Welfare Act 1986 (SA) (“OHSW Act”) to take reasonable care to protect his own health and safety at work, as well the health and safety of other persons by not driving a train while being mentally or physically ill. This reason for dismissal is in breach of s.340 of the Act.
Further, I find that the respondent’s termination of Mr Flavel’s employment was because of Mr Flavel’s mental and physical disability which reason for dismissal is unlawful pursuant to s.15(2) of the Disability Discrimination Act 1992 (Cth) (“DD Act”). This reason for dismissal is in breach of s.351 of the Act.
I find that the respondent was not in breach of s.352 of the Act as that section has no real application to the facts of this case. Mr Flavel was not dismissed because of a temporary absence from work. Further, his illness or injury was not of a kind prescribed by the regulations, if for no other reason, because his absence extends for more than three months.[8]
[8] See Fair Work Regulations 2009 (Cth), 6.04(a)(i).
Relief
The parties put submissions in relation to the relief that should be ordered. As it has been quite some time since the matter was heard, I have decided that I should hear further submissions in relation to this topic.
I will hear from counsel for the parties about the relief that would be appropriate.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 29 August 2013
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