Gerald Boyce Prideaux v TransAdelaide

[2010] FWA 9434

Note: An appeal pursuant to s.604 (C2011/2531) was lodged against this decision and the order arising from this decision [PR505141] - refer to Full Bench decision dated 29 March 2011 [[2011] FWAFB 1602] for result of appeal.

[2010] FWA 9434

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gerald Boyce Prideaux
v
TransAdelaide
(U2010/10336)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 DECEMBER 2010

Termination of employment - valid reason - section 387 - consideration of like situations.

[1] On 8 July 2010 Mr Prideaux lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act), through which he sought relief with respect to the termination of his employment with TransAdelaide.

[2] The application was unable to be settled through conciliation and was referred to me for arbitration on 2 November 2010. It was the subject of hearings on 10, 11 and 15 November, with written closing submissions received by 30 November 2010. Mr Prideaux was represented by Mr Harbord of counsel and TransAdelaide by Mr Moritz and Mr Johnston.

The background

[3] Whilst a very large amount of evidentiary material has been provided to me with respect to this matter, I have set out below a brief summary of the background to the application.

[4] Mr Prideaux was employed by TransAdelaide from June 1996 to 24 June 2010. He performed a range of duties before he was, from August 2004, engaged as a train driver. From September 2006 he drove main-line passenger trains on a broad cross-section of metropolitan routes.

[5] Mr Prideaux returned to work on Sunday, 13 June 2010 after a period of approximately 1 week’s Army Reserve training leave. In the course of his train driving duties on that day he was allocated to drive from Adelaide to Noarlunga.

[6] Restrictions on this route were recorded by way of Daily Train Notices which Mr Prideaux was expected to note. This process for alerting train drivers about route restrictions through the Daily Train Notices is set out in the TransAdelaide Common General Operating Rules and General Appendix to the Common General Operating Rules and Other Instructions, Parts 1 and 2 1, (hereafter referred to as the Common General Operating Rules). These rules also provide for a series of signs to be posted alongside the rail track, commencing 2km from a rail worksite. These requirements extend to the need for a "whistle board" sign to be placed 500m from the worksite, so that a driver is required to sound the train whistle to warn track workers, and be prepared to slow to 25km/h or stop at a further marker, prior to the worksite. In the event that a red stop board is placed on the track the train is required to stop before that board.

[7] On this occasion Mr Prideaux sounded the train whistle at the designated sign. The train then accelerated. The work site was located around a blind corner. When Mr Prideaux observed the worksite, or vehicles adjacent to it, he commenced braking. Despite deploying all available braking systems, Mr Prideaux’s train knocked down the red stop board which was adjacent to a 25km/h speed sign and entered the worksite before finally stopping a few metres short of where welding work on the tracks was being finalised.

[8] A track maintenance employee performing flagman duties at the red stop board jumped clear of the track and shouted a warning to other employees. Whilst neither TransAdelaide employees or train passengers were physically injured, a track maintenance employee subsequently had time off work as a result of the stress associated with this incident.

[9] The action of passing a designated stop signal is termed a SPAD (Signal Passed at Danger) and specific instructions apply to train drivers in the event of such incidents.

[10] After Mr Prideaux’s train stopped he engaged in a brief discussion with the flagman and checked that his passengers were not injured as a result of the application of the emergency braking system. Mr Prideaux was then instructed by TransAdelaide Train Control personnel to take his train to a forward station where he was relieved from driving duties.

[11] Mr Prideaux was then stood down pending an investigation. An initial SPAD investigation report form was completed by a Senior TransAdelaide Train Driver consistent with TransAdelaide's normal investigation process.

[12] The formal disciplinary investigation into the incident was undertaken by the TransAdelaide Chief Operating Officer, Mr Doggett and by TransAdelaide's Investigation and Interface Manager, Mr Wood.

[13] The investigation involved consideration of video film recorded by a camera installed on the train which preceded that driven by Mr Prideaux. This equipment was not installed on Mr Prideaux’s train. The investigation also involved consideration of the Train Data Log which records each train's speed, gear, braking and other information.

[14] TransAdelaide is required to provide a report into an incident of this nature to the Rail Regulator and Mr Wood was designated responsibility for preparing this report.

[15] Mr Doggett, Mr Wood and TransAdelaide Employee Relations consultant, Mr Johnston met with Mr Prideaux and his union representative, Mr Phillips on 17 June 2010. The advice confirming this meeting made Mr Prideaux aware that the investigation could conclude that termination of his employment was appropriate.

[16] The notes of the 17 June 2010 meeting record that Mr Prideaux conceded that whilst he had looked at the Daily Train Notices, he had not read these thoroughly. These notes record that Mr Prideaux recounted his version of the incident and that he responded to a number of questions about his actions and the train's circumstances before the incident.

[17] Mr Doggett subsequently undertook further investigations into the incident. These included discussions with two of the members of the work gang, including the flagman, Mr Heatherington. As a result of his investigation, Mr Doggett concluded that:

“Mr Prideaux’s actions and failure to appropriately respond to multiple warning boards could be considered to constitute a serious breach of safe working practices which warranted consideration of disciplinary action." 2

[18] Mr Doggett reviewed TransAdelaide records of previous SPAD incidents involving Mr Prideaux.

[19] Mr Prideaux was subsequently required to attend a second interview on 23 June 2010. Again, he was advised that this interview could result in the termination of his employment. Again, Mr Prideaux was represented by Mr Phillips.

[20] The notes taken of this meeting record that Mr Doggett sought clarification of whether Mr Prideaux had sounded the train horn on his approach to the worksite, and the point at which Mr Prideaux had commenced braking the train. The meeting notes record a discussion about a recent assessment of Mr Prideaux’s knowledge of the safe working rules which he had passed at the second attempt. Mr Doggett summarised the Common General Operating Rules and the provisions of the Rail Safety Act of 2007 which it was alleged that Mr Prideaux had breached. The notes of this meeting record that Mr Prideaux accepted that these breaches had occurred.

[21] Mr Doggett concluded that the circumstances of this incident warranted the termination of Mr Prideaux’s employment and advised him of this. Mr Prideaux requested that consideration be given to appointing him to an alternative, non-train driving position, but Mr Doggett rejected this request.

[22] TransAdelaide confirmed the termination of Mr Prideaux’s employment in writing on 24 June 2010. Mr Prideaux was paid five weeks pay in lieu of notice.

[23] Mr Prideaux lodged an internal appeal against the termination of his employment. He and his union official met with the TransAdelaide Acting General Manager, Mr Hook on 7 July 2010 to make submissions with respect to this internal appeal. On 15 July 2010 Mr Hook confirmed the termination of employment decision.

[24] The Rail Investigation Report compiled by TransAdelaide for the Rail Regulator describes and summarises TransAdelaide's conclusions with respect to the incident. These conclusions went to Mr Prideaux’s failure to properly respond to the warning board and his failure to thoroughly read the Daily Train Notices. However, this report also detailed certain conclusions intended to reduce the potential for accidents arising from human error. These included the conclusion that, in certain circumstances such as this incident, the 2km obstruction warning notice is too far from the work site. In addition the report suggested that consideration be given to a reminder warning board. The report also concluded that the rules with respect to the location of a red obstruction board (the stop board) should be revised to allow for that sign to be mandated to be 200m from a worksite. The report detailed other conclusions with respect to the follow-up action following a serious SPAD incident and suggestions for improving the visibility and safety of work gangs.

The Evidence

[25] I have very briefly summarised the extensive evidence of the witnesses in this matter in the following non-exhaustive terms.

[26] Mr Prideaux’s evidence went to his work history including previous safety incidents as a train driver, the Army Reserve training he undertook the week before the incident, and the incident itself. He detailed his recollection of the inquiry process and provided his assessment of the film taken from the previous train, the data recorded on the train data log and his assessment of the train stopping distances.

[27] Mr Prideaux outlined his understanding of a range of safety incidents involving other TransAdelaide staff and the actions taken against these employees by TransAdelaide.

[28] Mr Harris' evidence went to his involvement in the disciplinary meetings with Mr Prideaux and his understanding of the circumstances of other safety breaches by TransAdelaide train drivers.

[29] I have noted an affidavit made out by Mr Molier who is a Sargeant in the Army Reserve. Mr Molier detailed his experience in dealing with Mr Prideaux.

[30] The evidence of Mr Doggett as Chief Operating Officer of TransAdelaide went to his involvement in the investigation of the incident through meetings with various other TransAdelaide staff and the consideration of TransAdelaide records and the meetings with Mr Prideaux.

[31] Mr Doggett detailed the conclusions he reached relative to the incident, and the actions he subsequently took to terminate Mr Prideaux’s employment. In this respect Mr Doggett particularly relied on the Common General Operating Rules, the extensive training provided to Mr Prideaux and his employment history as a train driver. Mr Doggett's evidence went to his conclusion that Mr Prideaux’s behaviour represented a serious breach of the Common General Operating Rules and was due to his failure to thoroughly examine the Daily Train Notices and his inattention to a series of track side warning notices.

[32] Mr Doggett's evidence also went to a comparison of the incident which led to the termination of Mr Prideaux’s employment with incidents involving other TransAdelaide train drivers.

[33] Mr Ward's evidence went to his involvement in the investigation process, including his involvement in the interviews with Mr Prideaux on 17 and 23 June 2010. He also detailed his investigations which resulted in the separate report to the Rail Regulator.

[34] Mr Ward provided a commentary on the film taken from the preceding train and his assessment of the data from the train log. His evidence went to his assessment of the incident from a safety perspective.

[35] Mr Heatherington was the TransAdelaide work gang flagman at the worksite on 13 June 2010. His evidence went to his recollection of the incident.

[36] In considering the application, I have also taken into account the large number of documents and evidentiary material before me.

Findings

[37] Section 396 requires that I consider whether the initial matters specified in that section may impact on Mr Prideaux’s application before considering the merits of the application. I am satisfied that none of these initial matters precludes consideration of the merits of the application.

[38] There are a number of issues about which there is a factual dispute between the parties. I have reviewed these issues to the extent that they are relevant to my consideration of the factors set out in section 387.

[39] This section states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

Valid Reason

[40] In Selvechandron v Petersen Plastics 3 (Selvechandron), North J stated:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.

[41] This decision was made in the context of a quite different legislative regime under which a number of the factors now separately identified in section 387 formed part of the consideration of a valid reason. Notwithstanding this important distinction I have adopted the principle set out by North J whilst taking care not to avoid duplication in my consideration of the remaining factors in section 387.

[42] The incident of 13 June 2010 had potentially catastrophic consequences. There is no dispute that Mr Prideaux’s train overran the red stop board and stopped just short of a work area. This was despite the emergency brakes being applied. The potential for serious harm existed at a number of levels.

[43] Firstly, I accept the evidence of Mr Heatherington that he had to jump clear of the track and call out to alert other members of the work gang.

[44] I also accept the evidence of Mr Heatherington that the welding repairs to the line were not completed at that time and the potential existed for a derailment had the train continued.

[45] Mr Prideaux’s actions in going back through the train soon after the incident to check on the welfare of the passengers after the application of the full emergency braking system demonstrates that there was also an obvious potential for passengers to have been hurt during the incident.

[46] Finally, the subsequent absence from work of one of the members of the work gang as a consequence of the stress associated with the incident demonstrates both the potential psychological damage the incident may have caused and the extent to which it had the capacity to undermine the confidence that employees engaged on rail track repairs could have in their own safety.

[47] At the meeting on 17 June 2010 Mr Prideaux recognised the gravity of the incident. The notes of this meeting stated that Mr Prideaux advised that he had looked at the Daily Train Notices with respect to the train route but did not read them thoroughly. Further, at this meeting, Mr Prideaux indicated that he had lost attention and should have slowed down when approaching the worksite.

[48] The notes of the meeting of 23 June 2010 indicate that Mr Prideaux agreed that he was aware of the relevant rules and regulations and that he acknowledged that he breached them. In the hearing Mr Prideaux asserted that it was not so much inattention to the track warning signs but rather his understanding that the area of track being worked upon was further along. Given the warning signs and the extent to which Mr Prideaux acknowledged the "Whistle Gang Board" sign which was 500m from the worksite by sounding his whistle but then proceeded to allow his train to accelerate, I consider that this reflects inattention.

[49] The termination of employment letter of 24 June 2010 relevantly stated:

“Having carefully considered your explanation of the action taken by yourself on 13 June 2010 and taking into account all relevant information, including any mitigating circumstances, it has been determined that your employment should be terminated on the basis of a serious breach of safe working rules." 4

[50] Having considered all of the information before me I have concluded that Mr Prideaux did fail to thoroughly read the Daily Train Notices and did not pay adequate attention to the series of track side notices warning him of the work gang ahead.

[51] In reaching this conclusion about whether this behaviour constituted a valid reason for the termination of his employment, I have reviewed a number of other matters raised by Mr Prideaux. These matters go to consideration of Mr Prideaux’s capacity and conduct.

[52] Further, and consistent with Selvechandron, they go to the practical requirements of the job and the relevant rights, privileges duties and obligations. In considering these matters I have had particular regard to considering whether the termination of Mr Prideaux’s employment occurred for a reason which was capricious, fanciful, spiteful or prejudiced.

[53] I have considered the extent to which Mr Prideaux’s behaviour may be explained by tiredness associated with the fact that he spent the previous week interstate on an exercise with the Army Reserve. This cannot properly explain Mr Prideaux’s actions or exonerate his behaviour. Notwithstanding that Mr Prideaux was not scheduled to work until the following Tuesday he was not required to work on 13 June 2010. He elected to do so and there is no evidence that demonstrates that he was under an obligation to work if he considered that he could not do so safely.

[54] Mr Prideaux was not provided with the train data log until well after the termination of his employment. TransAdelaide Management obviously had this data log. Equally, Mr Prideaux was not provided with the film from the preceding train until well after the termination of his employment.

[55] The train data log disclosed information inconsistent with that provided by Mr Prideaux and with other advice provided to TransAdelaide management in the investigation process. Of particular significance in this respect is the extent to which Mr Prideaux sounded the horn as he braked on his approach to the worksite. The train data log shows that the horn was sounded briefly as the brakes were applied by Mr Prideaux and Mr Heatherington did not recall this. That the horn was not sounded was a factor considered by TransAdelaide in its investigation.

[56] Further, the train data log discloses that Mr Prideaux’s train actually increased speed from 67km/h to 78km/h after sounding its whistle at the 500m "Gang Whistle Board" sign. There is no dispute that the Common General Operating Rules required Mr Prideaux to ensure that the train was able to achieve a 25km/h reduced speed or come to a stop before the work site 500m from this sign. Consequently, the increase in train speed is clearly inconsistent with that obligation. However, the train speed was also significant in so far as it impacted on the assessment of when Mr Prideaux commenced braking the train. The point at which the brake was applied was also considered at the termination of employment meeting on 23 June 2010.

[57] Having reviewed all the evidence before me, I consider that the track workers interviewed by Mr Doggett were mistaken in as much as they asserted that the train only commenced braking when it hit the red stop board. That is simply not plausible.

[58] Whilst the issue of fairness associated with the provision of information to Mr Prideaux is considered later in this decision, there is nothing in the train data log or on the film, which detracts from the extent to which Mr Prideaux’s actions breached the safety requirements of which he was well aware.

[59] The evidence before me establishes that the red stop board was erected adjacent to the 25km/h speed restriction board, some 50m from the actual worksite. This is possible pursuant to the Common General Operating Rules.

[60] The report to the Rail Regulator refers to the location of warning signs and other means of making work gangs more visible so as to minimise the potential effect of human error. Whilst it is not necessary that I comment on those recommendations, I have considered the extent to which the placement of the warning signage and the blind corner reduced the extent to which Mr Prideaux’s failure to read the Daily Train Notices thoroughly and pay due attention to the track warning notices was a valid reason for the termination of his employment. I am unable to agree that this is the case. Different sign placement may have reduced the potential for tragic consequences arising from Mr Prideaux’s error but do not detract from those errors. Indeed, given the extent to which Mr Prideaux did not take proper account of all the earlier warning signs, additional track side signage may not have altered the potential for tragedy.

[61] Mr Prideaux knew the requirements of him as a train driver and his actions in failing to meet these requirements put himself, other employees and the public at grave danger. I can discern no caprice, spite or prejudice associated with the TransAdelaide assessment of Mr Prideaux’s actions. Even leaving aside the significance of the Daily Train Notices, Mr Prideaux passed a number of track side warning notices, sounded his train whistle at the 500m sign and then allowed his train to accelerate around a blind corner rather than preparing to stop. His failure to thoroughly read the Daily Train Notices and pay due attention to the trackside warning signs represented a valid reason for the termination of his employment.

Notification of the Reason

[62] Mr Prideaux was advised of the reason for the termination of his employment at the meeting on 23 June 2010 and these reasons were confirmed in advice provided to him on the following day.

Opportunity to Respond

[63] Mr Prideaux was given opportunities to respond to concerns about his conduct on 13 June 2010 at the meetings on 17 and 23 June 2010. Subsequent to the termination of his employment he was given a further opportunity to respond through the internal TransAdelaide appeal process.

[64] His opportunity to respond was limited on each occasion to the extent that TransAdelaide Management were informed by the film and the train data log which were not provided to Mr Prideaux.

[65] However, during these opportunities to respond, Mr Prideaux did not dispute the risks from, and the fact that, he did not read the Daily Train Notices thoroughly or pay due attention to the various track side warning signs.

Support person

[66] TransAdelaide facilitated Mr Prideaux’s access to a support person in meetings relative to these matters. This role was undertaken by Mr Phillips of the Rail Tram and Bus Union.

Warnings about Unsatisfactory Performance

[67] Mr Prideaux’s work performance as a train driver had, on a number of previous occasions, been considered unsatisfactory.

[68] Mr Doggett took account of Mr Prideaux's work history in the decision to terminate his employment. His evidence was that:

“45. I also sought to establish the circumstances associated with the previous SPAD incidents referred to in the initial SPAD Investigation Form.

46. In regard to one such incident which had occurred in December 2007, it had been established that Mr Prideaux had, amongst other things, allowed his train to pass an Absolute signal displaying a stop indication by virtue of his having been studying a timetable.

47. As a result of that incident, Mr Prideaux had been temporarily regressed to a lower Driver classification for a period of six months and was required to undertake a course of retraining with a view to reinforcing his knowledge and skills as they related to the role of Suburban Train Driver, Mainline.

48. Mr Prideaux had completed this period of retraining and resumed duties as a Mainline Driver in mid-2008, although I was concerned that he had apparently encountered some difficulty in satisfactorily completing an assessment of certain aspects of his driving knowledge as recently as April 2010.” 5

[69] Mr Prideaux disputes the basis upon which TransAdelaide identified previous concerns with his work. He asserted that a November 2005 incident was not a SPAD incident and that, in any event he was subsequently promoted to a Class 5 Main-line driver. Mr Prideaux conceded that he was involved in a SPAD incident in November 2006 when he stopped the train about a carriage length past the signal. He received a formal warning relative to that incident.

[70] Mr Prideaux conceded that he was given a formal warning for a SPAD incident in December 2006 and that he was required to do additional track training as a consequence. Mr Prideaux also acknowledged a third SPAD incident in December 2007. He asserted that he only passed the signal by 2 metres. Mr Prideaux was subsequently demoted for a time.

[71] In his evidence, Mr Prideaux also confirmed that other incidents in December 2008, September 2009 and March 2010 involved no formal disciplinary action that may have resulted in a file note being recorded relative to his behaviour. Following the March 2010 incident, Mr Prideaux had been required to complete a track knowledge questionnaire. He had initially failed that assessment but successfully repeated it on the following day.

[72] I have noted that TransAdelaide’s Counselling and Disciplinary Policy 6 deals comprehensively with disciplinary action in various forms. This policy relevantly states:

“As a general rule, previous warnings can only be taken into consideration in determining the appropriate level of further disciplinary action if they have been issued in the last twelve months. An exception would be if there is an ongoing pattern of misconduct/poor performance.” 7

[73] There is no final warning applicable to Mr Prideaux.

[74] I have concluded that Mr Prideaux had previously been warned about SPAD incidents, that his previous misdemeanours in this respect were substantially less significant than the 13 June 2010 incident but that nevertheless they occurred with sufficient frequency such that Mr Doggett was entitled to take these, including difficulty he had in successfully completing the March 2010 driving knowledge assessment, into account. I consider that these disciplinary issues could not have formed a fair foundation for termination of employment in anything other than a most serious repeat circumstance but that they formed a pattern of performance concerns.

Size of the TransAdelaide Enterprise

[75] TransAdelaide is a large employer and I have noted the comprehensive array of policies and procedures relative to the 13 June 2010 incident.

Access to dedicated Human Resource Management specialists

[76] Specialist human resource management personnel were involved in the investigation of the 13 June 2010 incident and in interviews with Mr Prideaux.

Other matters considered relevant

[77] Without duplicating my consideration of the valid reasons factor, I have considered whether the fact that TransAdelaide had access to the film from the preceding train and Mr Prideaux's Train Data Log, but did not provide that material to Mr Prideaux, constituted an unfairness.

[78] The evidence of Mr Phillips was that he was sure that he would have asked for that information. However no such request is recorded in the notes and there is no mention of a follow-up request at any relevant time. I am not satisfied that Mr Phillips in fact did ask for access to that information.

[79] The film and the Train Data Log are relevant to the location of the warning signs, the speed of the train and hence the point at which Mr Prideaux applied the train’s brakes. The Train Data Log was also relevant to the issue of whether the train whistle was sounded as Mr Prideaux neared the worksite and the undisputed fact that the train headlight was dimmed when it should not have been. To the extent that these issues were disputed there is an inherent unfairness associated with TransAdelaide's failure to provide Mr Prideaux with this material.

[80] However this material simply does not disturb the facts that Mr Prideaux did not thoroughly read the Daily Train Notices and did not pay adequate attention to the various track side warning signs.

[81] I note that Mr Prideaux's disciplinary record has been considered in the context of subsection 387(e). It could equally have been addressed under this provision.

[82] I have already made observations about the TransAdelaide Common General Operating Rules. Further to these observations, I have considered the extent to which these rules are simply so complicated that Mr Prideaux's failure to comply with them was understandable. Whilst this proposition was not argued before me, I find the phraseology and complexity of the Common General Operating Rules such that they are exceedingly complex and somewhat obtuse. That said, Mr Prideaux did not dispute that he understood the requirement that he thoroughly read the Daily Train Notices and clearly understood the various track warning notices.

[83] Mr Prideaux's position was that one of the reasons why the termination of his employment was unfair related to the extent to which other train drivers who had been involved in SPAD incidents had not been dismissed. In this respect, Mr Prideaux detailed a long list of TransAdelaide employees and his understanding of the incidents in which they had been involved.

[84] The evidence of Mr Phillips, Mr Ward and Mr Doggett also addressed various other incidents.

[85] The capacity to draw definitive conclusions from these comparisons is limited by the detail of the information provided with respect to both the incidents themselves and the disciplinary records of the other staff involved.

[86] I have however concluded that there are numerous examples of SPAD incidents which could have had tragic consequences, where TransAdelaide has not terminated the employment of the employee involved.

[87] I have noted the position adopted by a Full Bench of Fair Work Australia in Dorvill v Australian Postal Commission 8. In that matter the Full Bench stated:

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.

[25] We are not persuaded his Honour erred as suggested by Mr Darvell. It is apparent his Honour was both alive to and took into account the issue of how other employees who had engaged in conduct constituting the valid reason for Mr Darvell’s dismissal were treated by Australia Post. In his decision he specifically referred to the alleged inconsistency of treatment of employees breaching directions of Australia Post and the evidence in respect of the issue. However, his Honour concluded that:

“[78] [D]ifferent employees have different work histories, respond in different ways when issues of performance are raised with them, the nature of the breach may be arguably different because of different jobs and the context, and other matters. These matters explain what appears on the surface to be an inconsistency of approach to some degree.

[79] … factors such as the poor performance record of Mr. Darvell explain any difference in treatment.” [Footnotes omitted]

[26] Further, in determining whether Mr Darvell’s dismissal was harsh, unjust or unreasonable, his Honour said:

“[96] … There may be on occasion questions raised about the degree to which Australia Post is fully consistent in the application of its policies, but not in this case such as to undermine its right to issue directions and have them complied with. As discussed earlier, if comparisons are to be made between the treatment of various employees they have to take into account the different contexts, which include work history, the responses made by each employee, the nature of the job and other matters.””

[88] I have adopted this approach, such that I am not satisfied that Mr Prideaux has established that the termination of his employment was so inconsistent with other comparable circumstances so as to be inherently unfair.

[89] In this respect, I have noted that the majority of the other incidents to which Mr Prideaux referred, related to SPAD incidents involving a static absolute signal rather than the circumstances of 13 June 2010 which involved the red stop board after a sequence of warning signs.

[90] Mr Doggett's evidence was:

“72. I formed the view that the incident in which Mr Prideaux was involved on 13 June 2010 represented a more serious breach of Common Operating Rules and safe work practices that might otherwise be associated with a SPAD incident involving a static absolute signal.

73. The principal distinction I drew related to the fact that, in this case, Mr Prideaux conceded that he had neglected to thoroughly examine the details of a Train Notice drawing his attention to the presence of a work gang on the Noarlunga line and had admitted that the incident arose due to his inattention and inadequate response to a series of warning devices.”

[91] Further, Mr Doggett's evidence was that:

“PN1199

In your view, how did that situation relate to any other SPAD situations with which you have been involved in your experience in the rail industry?---It was certainly the most serious end of the spectrum of SPAD incidents. Most SPAD's involve a miscalculation or a passing of one signal or an inappropriate response to one signal. Here we had an inappropriate response to up to six warning boards and the consequences of how close we came to a very serious accident here was - put it in a different category than most SPAD's that I have been involved with.

PN1200

A comparison might be drawn with other SPAD's and the comparative seriousness of them. Was this particular incident distinguished from other SPAD's by any other factors other than the fact it involved a red obstruction board?---Yes, it was distinguishable from other SPAD's. It was a combination of things involved in this. It starts with the lack of thoroughness in reading the daily train notice and not getting all the accurate information and then it's passing the number of stop boards involved. There was a particular concern of mine that at the gang whistle board which was acknowledged, and you acknowledge that in the knowledge there is a stop board 500 metres ahead, that the train actually sped up rather than slowing down prepared to stop. Then the fact the train did actually run over the stop board, Mr Hetherington was at risk there because he had to jump from one track to the other, he was in danger. The work gang potentially were in danger and the train stopped and it's between 10 and 20 metres short of where the actual work site was. If the train had of continued over the work site there is a very real risk the train would have derailed. It was a passenger train with passengers on it and the speed involved before braking is in excess of what it should be in the circumstances.

PN1201

You have mentioned that you have been involved in the investigation of a number of other SPAD incidents, do any of the previous SPAD incidents involve the same sorts of factors as those that you have just highlighted in relation to this incident?

---No, no direct comparison.

....

PN1206

Could you just confirm Mr Doggett whether or not there have been any such incidents occurring within the TransAdelaide rail network in the last three years?

---Not to my knowledge that are comparable to this one.

PN1207

Have there been any other incidents which have involved a collision with a red obstruction board?---Not that I'm aware of.

PN1208

They have not been reported?---They have not been reported, no.

PN1209

Had they been reported would you have been involved?---Yes.

PN1210

Had there been any other incidents in the last three years or prior to that which has involved the risk of collision of a train with TransAdelaide employees working beyond a red obstruction board?---Not that I'm aware of that's come to my attention or been reported.” 9

[92] Mr Doggett's conclusions require consideration of the extent to which the termination of Mr Prideaux's employment was a disproportionate response to the 13 June 2010 incident. I have considered this issue of proportionality in reviewing all of the factors set out in section 387.

[93] I have also noted Mr Doggett’s decision not to allow Mr Prideaux to work in an alternative role in TransAdelaide. His evidence was:

“76. Whilst Mr Prideaux sought consideration of appointment to an alternative role within the TransAdelaide organisation, I was not inclined to accede to his request on the basis of the seriousness of the incident, the extent to which Mr Prideaux’s negligence had contributed to the incident and the fact that most other positions for which he might ordinarily have been considered involve a similar level of knowledge and compliance with Common Operating Rule as those associated with the role of Suburban Train Driver.”

[94] Evidence to refute this proposition has not been provided to the extent that I am satisfied that it is incorrect.

[95] Finally, I have noted that Mr Prideaux was paid five weeks pay in lieu of notice, consistent with the provisions of the relevant certified agreement.

Conclusion-Harsh, Unjust or Unreasonable

[96] I have concluded that there was a valid reason for the termination of Mr Prideaux's employment in that he did not read the Daily Train Notices thoroughly and did not give adequate attention to the various track warning notices before the worksite. In reaching this conclusion I have reservations about the extent to which the TransAdelaide Common General Operating Rules best avoid the potential for catastrophic consequences arising from human error. These reservations do not detract from the extent to which Mr Prideaux's behaviour constituted a very serious error, irrespective of whether all of the recommendations of the Rail Regulator's report were implemented, and could have been catastrophic.

[97] I consider that in this context, the termination of Mr Prideaux's employment was a proportionate response to his behaviour.

[98] I am not satisfied that the issues of process with respect to the termination of Mr Prideaux’s employment, such as the fact that Mr Prideaux was not provided with the film from the preceding train, or the Train Data Log are so material to the overall analysis required by section 387, that they make the termination of his employment harsh, unjust or unreasonable.

[99] For the reasons I have specified I am not satisfied that the termination of Mr Prideaux's employment was harsh, unjust or unreasonable and accordingly dismiss the application. An Order [PR505141] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

G Harbord counsel for the Applicant.

B Moritz representing the Respondent.

Hearing details:

2010.
Adelaide:
November 10, 11 and 15.

 1  Exhibit T5

 2   Exhibit T3 Paragraph 44

 3 (1995) 62 IR 371 at 373

 4   Exhibit P22

 5   Exhibit T3

 6   Exhibit P19

 7   Exhibit P19 (Doc. No. #38533 para 9.4)

 8  [2010] FWAFB 4082

 9   Transcript of Proceedings 11/11/10

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