Gareth Lloyd v Australia Western Railroad Pty Ltd T/A ARG an Aurizon Company

[2017] FWC 3179

[2017] FWC 3179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gareth Lloyd
v
Australia Western Railroad Pty Ltd T/A ARG an Aurizon Company
(C2015/6557)

COMMISSIONER WILLIAMS PERTH, 14 JUNE 2017

Application to deal with a dispute.

Background

[1] The Commission as currently constituted issued a decision [[2016] FWC 5568] in this matter in August 2016 deciding there was no jurisdiction to deal with the application. That decision was overturned on appeal by the Full Bench in Gareth Lloyd v Australia Western Railroad Pty Ltd T/A ARG an Aurizon Company [[2017] FWCFB 143]. That appeal decision remitted the matter to myself to hear and determine having regard to the Full Bench decision. Relevantly the Full Bench decided,

“[38] It follows that the Commissioner had the jurisdiction to deal with the dispute. The fact that the disciplinary penalty applied by the Respondent was contemplated by clause 14 of the Agreement would be an important consideration in terms of any discretionary decision to be made by the Commission. In that regard, the principles within the XPT case would be a relevant starting point for any consideration.”

[2] The principle within the XPT case 1 to which the Full Bench referred is as follows,

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”

The evidence and factual findings

[3] The parties have agreed on the following facts.

[4] Mr Gareth Lloyd (Mr Lloyd or the Applicant) is employed by Australia Western Railroad Pty Ltd T/A ARG an Aurizon Company (the Respondent) as a Locomotive Driver.

[5] The Applicant has been employed by the Respondent since 6 February 2012.

[6] At all times material to this application the Aurizon (Western Australia) Rail Operations Enterprise Agreement 2014 [AE410544](the Agreement) applied to the Applicant’s employment.

[7] On 29 August 2015, the Applicant was working with driver Mr Jacob Enslin (Mr Enslin) as a member of the crew of train number 7721.

[8] At approximately 11.13 a.m., train 7721 passed a signal at red (the Incident).

[9] Passing a signal at red is known within the rail industry as a SPAD (signal passed at danger).

[10] At the time of the Incident, Mr Enslin had charge of the operation of the train and the Applicant was the driver assisting. The driver assisting is also known as the “second person”.

[11] The Applicant is qualified in railway safeworking.

[12] The Respondent has a Standard Operating Procedure–SOP13-120 Rev 3–Observance and Reaction to Signals (SOP13-120), which was in effect at the time of the Incident.

[13] At all material times SOP13-120 applied to the Applicant.

[14] The Respondent conducted a disciplinary investigation in relation to the Incident.

[15] The outcome of the disciplinary process was that Mr Enslin and the Applicant were each suspended from duty without pay for a period of one week. The period of suspension commenced from 4 September 2015. Further, Mr Enslin and the Applicant were required to undergo reassessment in the requirements of SOP13-120.

[16] On or about 8 September 2015, the Applicant lodged with the Respondent a Resolving Differences Notification Form under subclause 45.15 of the Agreement.

[17] The dispute raised by the Applicant was not resolved at the workplace level.

[18] On or about 19 November 2015, the Applicant referred the dispute to the Commission in accordance with subclause 45.4 of the Agreement.

[19] The Applicant disputes the disciplinary measure taken against him of suspension from duty this without pay for one week.

[20] The Applicant seeks a declaration from the Commission that the disciplinary measure was unfair, unreasonable and harsh in the circumstances.

[21] The Applicant seeks an order that he be paid wages lost as a result of his suspension from duty without pay.

[22] The Applicant does not dispute the factual findings made during the disciplinary process.

[23] At the hearing evidence was given by Mr Philip Woodcock (Mr Woodcock) the Branch Secretary of the Australian Rail, Tram and Bus Industry Union, West Australian Branch.

[24] Relevantly Mr Woodcock’s evidence was that been made aware that the Applicant had been suspended from duty for one week without pay for his involvement in the SPAD Mr Woodcock thought the penalty was unreasonable given the allegation and that the Applicant was the assistant driver.

[25] Mr Woodcock says that this was the first time he was aware of a driver assisting being penalised in the same manner as the primary driver. 2 He believed that the Respondent was taking a hard-line approach.

[26] Mr Woodcock did not believe the suspension without pay for the driver, Mr Enslin, was unreasonable. 3

[27] Mr Woodcock acknowledges that suspension without pay for one week for being involved in a SPAD will not be a hard-line approach in all cases.

[28] Mr Woodcock believed though in the Applicant’s case the suspension without pay for one week was unreasonable because the Applicant could not have changed anything even If he had spoken up to the driver, the driver would have still made the error. Even if the Applicant had followed the procedure to the letter the SPAD still would have occurred.

[29] Mr Woodcock is aware that the Respondent has terminated the employment of drivers involved in SPADs and has also terminated drivers assisting involved in SPADs. 4

[30] Evidence was also given by Mr David Detez (Mr Detez) who is the Respondent’s HR Manager in Western Australia.

[31] Mr Detez searched the Respondent’s disciplinary records for the period November 2008 to 20 April 2017 for the words ‘without pay’. This search revealed there were 23 instances where the Respondent has suspended an employee without pay as a disciplinary measure not including the instances of the Applicant and Mr Enslin.

[32] Mr Detez provided the Commission with copies of the respective disciplinary letters and a summary of the nature of the respective incident which led to the disciplinary action and the period of suspension. 5

[33] Of the 23 instances of suspension without pay nine involved an instance characterised as a SPAD. Of those nine instances of a SPAD five resulted in suspensions without pay of two weeks (or 14 days) and four resulted in suspensions without pay of one week (or seven days).

[34] Of the nine suspensions without pay involving a SPAD one was an employee who was the driver assisting, seven were drivers and one was indeterminate.

[35] The single suspension without pay of a driver assisting involved in a SPAD was for seven days. It is unknown what disciplinary action was taken against the driver involved in this SPAD other than it was not a suspension without pay. 6

[36] Evidence was also given by Mr Richard Justins (Mr Justins). Mr Justins has 40 years’ experience in rail industry operations in Western Australia.

[37] At the time of the incident Mr Justins was the Respondent’s Acting Service Delivery Manager Narngulu. In this capacity he was advised of the Incident on 29 August 2015.

[38] His evidence was that the Respondent has had an increased focus on reducing the incidence of derailments and SPADs. A lot of work has been done to reduce the potential for train drivers to be distracted when approaching yellow caution signals and read stop signals. A new procedure dealing with this has been incorporated into the Respondent’s SOP13-120. This procedure deals with the operation of trains and other rail vehicles and signalled areas and instructs rail traffic crew in how to control their train departing from and approaching signals and requires the verbalisation of actions and intention to maintain concentration on the task at hand, especially at the approach to a yellow caution signal (designated the Sterile Zone) and the area between a yellow caution signal and the next signal capable of showing red (the Critical Zone). SOP13-120 forms part of the Respondents Safety Management System under the Rail Safety National Law (WA) Act 2015 (the National Law).

[39] SPADs are deemed by the National Law to be a ‘Notifiable Occurrence’ and are reported to the Office of the National Rail Safety Regulator immediately or within 72 hours of the occurrence.

[40] A SPAD is a ‘Notifiable Event’ for the purposes of the Respondent’s internal Incident Reporting Process. At the time of the incident SPADs were reported immediately by phone to the relevant General Manager, who then advised the Vice President, the Executive Vice President, Group General Counsel and the Chief Executive Officer.

[41] SPADs are also reported to the Respondent’s national Central Safety Committee and to the national SPAD Community of Competence for review.

[42] Mr Justins as the Manager of the relevant area was authorised to determine what disciplinary action, if any, would be applied to the Applicant and Mr Enslin as a result of the Incident.

[43] The Respondent does not have mandatory sanctions to be applied for particular conduct rather penalties to be imposed are within the discretion of the Manager.

[44] Mr Justins’ evidence was that he considered this SPAD that occurred on 29 August 2015 to be a serious breach of procedure. 7

[45] Mr Justins considered that the responsibility for the safe operation of the train fell on both the driver, Mr Enslin, and the driver assisting Mr Lloyd and that their responsibilities, though different were equal.

[46] Mr Justins’ evidence was that this view is endorsed under SOP13-120 and has been the accepted approach throughout Mr Justins’ experience of 40 years in the rail industry. 8

[47] SOP13-120 provides that any safe working qualified worker in the trains cabin as part of the crew is responsible for the trains safe operation, which means both the driver and the driver assisting are equally responsible for the train’s safe operation. 9

[48] If Mr Lloyd had done everything he was required to do under SOP13-120 he would not have been responsible for the SPAD. 10

[49] Having reviewed the materials gathered from the investigation Mr Justins’ view was that Mr Enslin had recognised the seriousness of the SPAD and accepted he was the driver responsible for the safe operation of the train and had acknowledged that he had breached the required procedures. Mr Enslin had admitted to being distracted in the Critical Zone as he approached the signal and recognised the reasons for that distraction.

[50] Mr Justins’ view was that Mr Lloyd in his response to the Respondent had recognised the seriousness of the SPAD but did not readily acknowledge his failure to comply with the required procedures. Mr Lloyd was saying that there was nothing he could have done to prevent the SPAD, or at best, he could have acted ‘slightly’ differently.

[51] Mr Justins took into account that in July and August 2015 there had been a particular safety focus on SPAD prevention promulgated through two toolbox talks and a short written exercise to confirm employees’ understanding of the requirement. Mr Lloyd completed the written exercise on 4 August 2015. Mr Lloyd had also been assessed in September 2014 as having a good understanding of the requirements of the relevant procedures. 11

[52] Mr Justins considered that both the driver and the driver assisting were equally culpable in relation to the SPAD and this warranted equal disciplinary outcomes. He considered the given the recent focus on SPAD prevention that a disciplinary outcome greater than a warning was appropriate and he judged a suspension without pay for one week was a reasonable penalty for both employees.

[53] Mr Justins has on four previous occasions dismissed drivers for SPADs.

[54] SPADs dependent upon the particular circumstances vary in their seriousness.

[55] The disciplinary penalties following a SPAD depend on the circumstances including any mitigating circumstances.

Submissions

The Applicant

[56] The dispute identified in this application is whether the one week suspension imposed on the Applicant should stand or be altered.

The Commission's ability to interfere with managerial prerogative

[57] The relevant starting point is considering the principles outlined in the XPT Case where the Full Bench of the Australian Industrial Relations Commission held that:

“It seems to us the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[58] The Respondent’s decision to impose on the Applicant a one week suspension was unjust, unreasonable or both because:

a. the penalty was disproportionate to the Applicant’s conduct (Disproportionate Ground); and

b. the Respondent was inconsistent in imposing the penalty, because it has applied lesser penalties to employees in similar circumstances (Inconsistency Ground).

Disproportionate Ground

[59] The penalty was disproportionate to the Applicant’s conduct during the SPAD because:

a. the Applicant was the assistant locomotive driver and not in charge of the operation of the train; and

b. the culpability of an assistant locomotive driver during a SPAD is different to that of a locomotive driver in charge of a train. In the circumstances of this case, this was because, as an assistant driver, the Applicant:

i. did not have a clear view of the speedometer; and

ii. was positioned in a seat where he had limited access to apply the brake on the locomotive.

[60] For the above reasons, it is submitted the Commission should find that the Respondent’s decision was unjust.

Inconsistency Ground

[61] It is submitted in similar circumstances to the Applicant’s SPAD, the Respondent has applied lesser penalties. Examples of this include:

a. In January 2014, Mr Christopher Clarke (Mr Clarke) was the assistant locomotive driver who was involved in a SPAD. It was determined Mr Clarke did not comply with SOP13-120. The Respondent issued Mr Clarke in this incident with a writing warning.

b. In May 2015, Mr Raymond Heald (Mr Heald) was the assistant locomotive driver who was involved in a SPAD. It was determined Mr Heald did not comply with SOP13-120. At the conclusion of the discipline investigation, the Respondent issued Mr Heald with a warning.

[62] The above examples demonstrate the Commission should find that the Respondent’s decision was unreasonable.

[63] Given the above submissions, it is submitted the Commission should make the following orders:

a. a finding that the Respondent’s decision to suspend the Applicant for one week was unjust and unreasonable;

b. an order the Respondent pay the Applicant one weeks’ wages; and

c. any other order the Commission deems appropriate.

The Respondent

[64] The application arises out of clause 45 of the Agreement, which is a term as described in section 738(b) of the Fair Work Act 2009.

[65] The Applicant is employed by the Respondent as a Locomotive Driver and on 29 August 2015 was the driver assisting on train 7721 which passed a signal at red.

[66] The disciplinary action which was taken by the Respondent against the Applicant was the suspension of the Applicant from duty, without pay, for a period of one week.

[67] Subclause 14.1 of the Agreement provides as follows:

“14.1 Disciplinary measures that Aurizon may take against an employee include:

14.1.1 a caution or reprimand;

14.1.2 a temporary reduction in position, classification and pay for a period of up to six months;

14.1.3 suspension from duty without pay for a period of up to two weeks;

14.1.4 dismissal with or without notice as applicable.”

[68] The Applicant puts forward two grounds on which he holds that the Commission should find that the disciplinary action taken against him was unjust and unreasonable: that the penalty imposed was disproportionate to the Applicant’s conduct; and that the penalty is inconsistent with penalties imposed by the Respondent in similar circumstances.

Disproportionate Ground

[69] The first leg of the Applicant’s argument is that the Applicant was the driver assisting on the train and not the driver in charge of the train at the time of the Incident which gave rise to the disciplinary action; and the driver assisting, it is argued by the Applicant, has a different culpability to the driver in charge of the train when a SPAD occurs.

[70] The Respondent submits there is no evidence to support this contention. Rather, the evidence points to there being an equal responsibility on the qualified members of the train crew, of which the Applicant was one, for the safe operation of the train.

[71] The notion of equal culpability of the driver and the driver assisting is supported by the Decision of Deputy President Sams in Peter White v Asciano Services Pty Ltd t/as Pacific National. 12

[72] The second leg of the Applicant’s argument is that (unlike the driver) the Applicant, as driver assisting, did not have a clear view of the locomotive’s speedometer, and, from where he was seated on the locomotive had limited access to apply the brake on the locomotive.

[73] Again, it is submitted these contentions are not supported by evidence. The evidence submitted in support of the Applicant’s case, such as it is, suggests that the Applicant could have seen a locomotive speedometer had he turned around. There is no evidence in relation to the accessibility of the brake on the locomotive.

[74] In any event, the Respondent submits the procedure which the Applicant breached, SOP13-1207, does not require the driver assisting to either sight the locomotive speedometer or to apply any brakes.

Inconsistency Ground

[75] The Applicant argues that the disciplinary sanction imposed on him as a result of the SPAD on 29 August 2015 was unjust or unreasonable or both because, in similar circumstances to the Applicant’s, the Respondent has applied lesser penalties.

[76] In the case of Mr Clarke it can be seen from his Incident Statement that he recognises that he was distracted during the critical approach to the red signal. Mr Clarke’s case also predates the Aurizon-wide focus on SPAD prevention announced in May 2014.

[77] In the case of Mr Heald, while his misconduct involved a breach of the same SOP13-120 procedure, the incident in which he was involved was significantly different from the Applicant’s incident.

[78] The train on which Mr Heald was the driver assisting was stopped in the Narngulu West Depot and was waiting for permission to proceed. Departure from the Depot involved Train Control setting the signal and releasing the switch lock on the points; it also involved the Operational Maintainers setting the path for the train’s departure.

[79] In both Mr Clarke’s case and Mr Heald’s case the disciplinary action taken against the driver has been the same as that taken against the driver assisting.

[80] It is not the case, as is suggested by Mr Woodcock in his evidence, that the suspensions without pay of the Applicant and Mr Enslin were the first enacted by the Respondent.

[81] The examples of earlier penalties for breaches of SOP13-120 provided on behalf of the Applicant do not point to any previous consistent approach to dealing with such breaches which the Respondent was bound to follow in the Applicant’s case.

Management Prerogative

[82] A failure to comply with safety procedures in which the employee has been trained is a serious breach of the employee’s obligations under the employment contract.

[83] It is within the discretion of the Respondent’s managers to impose a disciplinary sanction where an employee has breached a safety procedure.

[84] It is not unusual for the Respondent’s managers to impose a penalty of suspension without pay where there has been a breach of safety procedures.

[85] The Agreement, at subclause 14.1.3 provides that suspension without pay for a period of up to two weeks is a disciplinary action that the Respondent may take against an employee covered by the Agreement.

[86] The Incident on 29 August 2015 was considered to be a serious incident by the driver, Mr Enslin, by the Applicant and by the Respondent’s Manager, Mr Justins. In Mr Justins’ judgement, the conduct of the Applicant and the driver warranted a greater sanction that a warning.

[87] Mr Justins’ applied a penalty which was contemplated and permitted by the Agreement without qualification, save as to duration, and was half of the maximum period of suspension without pay permitted under the Agreement. A similar penalty had been given on a least three previous occasions to employees involved in SPADs and on at least two previous occasions greater periods of suspension without pay had been imposed.

[88] The Respondent submits there is no manifest injustice or unreasonableness in the penalty imposed on the Applicant such as would, on the principle in the XPT Case, warrant interference in the decision making of the Respondent by the Commission.

Consideration

[89] The applicable principle within the XPT case which is the starting point for this matter is referred to at [2].

[90] The question for the Commission is was the disciplinary sanction imposed on Mr Lloyd of one weeks’ suspension without pay unjust or unreasonable?

[91] What the evidence discloses is that SPADs themselves are of varying seriousness depending upon the circumstances and that the disciplinary sanctions imposed by the Respondent takes into account the seriousness of the SPAD and other factors, for example, which might include the existence or the absence of prior disciplinary sanctions or relevant mitigating or aggravating factors.

[92] Consistent with this the evidence discloses that in some cases employees responsible for SPADs have received a written warning, in other instances they have been suspended without pay for one week, others have been suspended without pay for two weeks and in some instances the employee has been dismissed from their employment.

[93] The evidence also discloses that one employee who was a driver assisting was previously disciplined with a seven day suspension without pay for being involved in a SPAD. The evidence before the Commission does not disclose the full circumstances of this case.

[94] I accept the submissions and evidence of the Respondent to the effect that the driver and the driver assisting are equally responsible for the train’s safe operation, although they have different roles.

[95] It was therefore not unjust or unreasonable that Mr Lloyd, the driver assisting, received the same disciplinary sanction as the driver Mr Eslin particularly so where Mr Lloyd did not readily acknowledge his failure to comply with the required procedures whereas the driver Mr Eslin had readily acknowledged his failures. 13 It was reasonable for Mr Justins to take these facts into account in considering the appropriate disciplinary sanction for Mr Lloyd.

[96] It was also reasonable for Mr Justins to take into account the recent focus on SPAD prevention which Mr Lloyd was involved in.

[97] As to the comparison with other particular instances of discipline for SPADs, as with the approach the Commission takes in unfair dismissal remedy cases, claims of differential treatment should be viewed cautiously. The Commission must be satisfied that any such examples are properly comparing “apples with apples”.

[98] There must be sufficient evidence to support the examples provided to ensure a proper comparison can be made. Critically there must be sufficient evidence of all of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. 14

[99] Considering the evidence on which the Applicant relies to draw comparisons I am not satisfied that there is sufficient evidence of all the surrounding circumstances of the other instances of disciplinary sanctions for comparisons to be legitimately made.

[100] Subclause 14.1 of the Agreement expressly prescribes a range of disciplinary measures that the Respondent may take against an employee, including reprimands or cautions, a reduction in classification and pay for up to six months, suspension without pay for up to two weeks and dismissal.

[101] Considering all of the evidence and the submissions in this matter it is my conclusion that the Respondent’s decision in this instance was not unjust and a reasonable person in the position of the Respondent could have made the decision that Mr Lloyd should suffer a suspension of one week without pay. 15

[102] With this decision the dispute is resolved.

COMMISSIONER

Appearances:

B. Grubor of the Australian Rail, Tram and Bus Industry Union for the Applicant.

D. Johnston on behalf of the Respondent.

Hearing details:

2017.

Perth:

May 17.

 1   Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188 at 191.

 2   Transcript at PN44 and PN45.

 3   Ibid., at PN59.

 4   Ibid., at PN110.

 5   Exhibit AWR1, Attachment DD1.

 6   Transcript at PN155.

 7   Exhibit AWR2 at paragraph 18.

 8   Ibid., at paragraph 19.

 9   Transcript at PN371.

 10   Ibid., at PN369.

 11   Exhibit AWR2 at paragraph 23.

 12   [2015] FWC 7466 at [211].

 13   Ibid., Attachment RGJ3.

 14   Sexton v Pacific National (ACT) Pty Ltd PR931440 at [36].

 15   Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288 at [12].

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