Ivan Muhic v Australia Western Railroad Pty Ltd T/A QR National

[2013] FWC 1604

[2013] FWC 1604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ivan Muhic
v
Australia Western Railroad Pty Ltd T/A QR National
(U2012/13121)

COMMISSIONER WILLIAMS PERTH, 28 MARCH 2013

Termination of employment.

[1] This matter involves an application made by Mr Ivan Muhic (the applicant or Mr Muhic) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Australia Western Railroad Pty Ltd T/A QR National (the respondent or AWR).

[2] This matter was the subject of a conciliation conference with a Fair Work Commission Conciliator however the matter was not resolved and has been referred to me for determination.

Background

[3] At all relevant times the Australia Western Railroad (Western Australia) Rail Operations Enterprise Agreement 2011 [AE889952] (the Agreement) applied to the applicant’s employment.

[4] The applicant was employed as an Operational Maintainer at the respondent’s West Kalgoorlie rail depot.

[5] The termination letter given to Mr Muhic, dated 3 September 2012, from AWR says that:

“On 09 August 2012 at approx 1830 hours as the Operational Maintainer in charge of the shunt you pushed back a rake of wagons onto 4road without preceding it and the rake travelled approx 180 meters and collided with a rake of CCL wagons already standing on 4road [sic].”

[6] The letter goes on to say that due to the seriousness of the misconduct AWR was terminating the applicant’s employment with four weeks notice.

[7] Central to this application is the events on 9 August 2012 involving the applicant immediately prior to the collision mentioned in the termination letter.

[8] The hearing of this matter involved inspections being undertaken at the West Kalgoorlie rail depot where shunting activities are carried out and evidence being given by a number of witnesses.

[9] It is useful at this point to explain a number of concepts and phrases used throughout the evidence, the party’s submissions and in this decision.

[10] Shunting activities involves splitting up a train of railway wagons by detaching a smaller group of rail wagons and then assembling a new train made up of different groups of wagons attached together as required. This is achieved by moving groups of rail wagons from one section of track, or road, to other sections of track in effect shuffling the rail wagons from one configuration to a different configuration. To do this the locomotive operated by the train driver would pull a group of rail wagons in the traditional fashion down one track through points and leave those wagons on another track and at other times that locomotive would be pushing a group of wagons from the rear, which is known as ‘propelling’, from one track onto another track.

[11] Importantly when a locomotive is propelling a group of rail wagons the driver in the locomotive, because it is located at the rear, does not have a clear view of the track ahead and virtually no view of the track immediately in front of the lead wagon.

[12] Consequently when a locomotive driver is undertaking a propelling movement of rail wagons there is a requirement that the driver is instructed by an Operational Maintainer who acts as the driver’s eyes during the propelling movement.

[13] An Operational Maintainer moves around the rail depot in a vehicle or on foot and communicates by radio with the drivers of trains when they are involved in shunting activities.

[14] When a driver is undertaking a propelling movement of a group of wagons the required procedure in summary is that an Operational Maintainer should take up a position where they have a clear view of the track between the starting position of the lead wagon and it’s finishing position. The Operational Maintainer would give the driver the instruction to begin the propelling movement and remains in radio communication with the driver. As the train movement progresses the Operational Maintainer calls out the remaining distance to the driver to inform him of the decreasing distance between the lead wagon and the finishing point of the movement. This distance is usually communicated to the driver as the number of wagons to go.

[15] The driver should not exceed 15 km/hand the Operational Maintainer should position themselves either in front of the lead wagon or alongside the lead wagon, in which case they would then walk or drive in a vehicle beside that lead wagon as it was propelled to its finishing point. These actions by the Operational Maintainer are known as preceding the movement 1.

[16] The need for the Operational Maintainer to precede a propelling movement by a locomotive is a very important safety requirement.

Submissions

The applicant

[17] On behalf of the applicant it is argued that Mr Muhic’s conduct was not sufficient to constitute serious misconduct and that AWR did not give Mr Muhic a reasonable opportunity to defend himself and that in fact there were salient, contributing factors to the incident.

[18] It was submitted that Mr Muhic maintains that he was attempting to precede the movement.

[19] In his statement made on the day of the incident, Mr Muhic stated that:

“At approx. 1830 hours while putting together loading for train #5420 and having received a yellow (proceed) light on signal #50, I requested the shunt driver (Colin Winters) to start pushing down from the neck towards the yard so as to add remaining wagons from the grid. I began making my way towards the yard points with a trainee (Monique Pretorius) alongside. During the movement, the lead wagons got ahead of me and crossed the 4rd points, making contact with the CCL wagons located just inside the yard before I became fully aware that the points were not set for an alternative line.”

[20] It is argued that the maximum operating speed at which a train can travel when it is being preceded by a person, who is walking, is at walking pace. In the workplace walking pace is considered to be 7 km/h.

[21] While Mr Muhic was preceding train number 5420, the train got up to speeds in excess of 20 km/h. Mr Muhic instructed the driver of train number 5420 to slow the train down via the two-way radio communication system.

[22] It is commonplace in AWR for wagons to get ahead of a person who is preceding a train movement by foot.

[23] AWR has had a number of other incidents where employees have not preceded train movements which have resulted in incidents occurring. This includes two separates incident at West Kalgoorlie yard, one of which occurred after Mr Muhic’s incident; and an incident at AWR’s Kwinana yard earlier in 2012 which involved the train passing a signal at danger due to a Supervisor not preceding a train. Of these incidents, Mr Muhic was the only one who was dismissed.

[24] It is also submitted that the West Kalgoorlie management responsible for the investigation targeted and bullied Mr Muhic due to personal reasons. In a previous incident of bullying by AWR management at West Kalgoorlie, Mr Muhic was placed onto forced administrative leave and then forced sick leave. He was not allowed back to work until AWR had received evidence from a psychologist that Mr Muhic had no recognised psychological disorders. The psychologist found no evidence of any psychological disorders.

[25] In the investigation, Mr Muhic was not presented with the evidence that AWR had against him.

[26] The allegations made by another staff member that Mr Muhic was not preceding the movement, was never put to Mr Muhic until after he was dismissed. Instead AWR only offered a vague statement of a series of events and asked Mr Muhic to respond. AWR never responded to Mr Muhic’s claim that he was preceding the train and that it got ahead of him. Nor did AWR inform him that the train was travelling at speed in excess of 20 km/h. AWR did not give Mr Muhic a reasonable opportunity to defend himself by not explaining to him, with any specific detail, what the investigation had uncovered and whether there was any conflicting evidence.

[27] In a stock-template letter to Mr Muhic from AWR, dated 27 August 2012, AWR offered Mr Muhic the opportunity to raise any additional mitigating circumstances or other factors which he believed that AWR should consider in making a decision.

[28] Mr Muhic sent a letter to AWR, dated 31 August 2012, which raised a number of issues which were relevant to the decision.

[29] AWR did not contact Mr Muhic to seek clarity on any of the issues that he raised. Similarly, in the termination letter to Mr Muhic, dated 3 September 2012, AWR did not address any of the issues that Mr Muhic raised on 31 August 2012.

[30] With respect to other factors that contributed to the collision it was submitted that in order to train new employees, an Operational Maintainer employed by AWR must be at least level six in the classification structure in the Agreement. This includes working towards and completing a Statement of Attainment for relevant units in Training and Assessment.

[31] Aside from his normal duties conducting the shunt; AWR also made Mr Muhic charged with the obligation of training Ms Monique Pretorius, a level one Operational Maintainer, and also supervising the work of Mr Renier Meiring, a level three Operational Maintainer. By doing so AWR had Mr Muhic acting above his competency and training.

[32] In addition on 9 August 2012 train number 5420 was running late and there was a pressure to complete the job to get the train out on time. Mr Muhic and his crew were permitted by AWR to skip their meal break. Mr Muhic has told AWR that this was a contributing factor to the incident occurring.

[33] Mr Muhic also claims that the poor lighting in the area was a contributing factor in the incident occurring.

[34] Considering all these factors it is argued that the dismissal of the applicant and the circumstances was harsh, unjust and unreasonable.

The respondent

[35] On behalf of the respondent it is submitted that the respondent is a Rail Transport Operator accredited under the Rail Safety Act 2010 (WA).

[36] During the shift in which the applicant was engaged on 9 August 2012 he was responsible for shunting operations carried out by his shunting team in the respondent’s West Kalgoorlie yard.

[37] The respondent’s shunting practices are governed by rules, standards and procedures aimed at minimising the risk to life, limb and property, from the movement of rolling stock which, in combination may have a mass of hundreds, even thousands, of tonnes.

[38] Employers have important statutory obligations to maintain a safe place of work. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[39] The respondent submits the applicant was trained in the correct shunting protocol and had been assessed as competent.

[40] The importance of compliance with correct shunting protocols is regularly reinforced by the respondent.

[41] A breach of safety rules provides a valid reason for termination of employment and can amount to serious misconduct. Characterising the conduct as something other than misconduct does not derogate from the seriousness of the action or the possible consequences. Making a mistake in the course of employment can be a valid reason for the termination of employment of an employee.

[42] The applicant has not denied that he breached safety rules.

[43] The respondent had a valid reason for the dismissal of the applicant and has complied with the statutory requirements for procedural fairness. In such circumstances a finding that the dismissal was unfair would require the presence of significant mitigating factors and there are no such factors apparent in this case.

[44] Consequently it is submitted the applicant’s dismissal was not harsh, unjust unreasonable and this application should be dismissed.

Consideration

What was the applicant’s involvement in the collision on 9 August 2012?

[45] It is not disputed that on the night in question, 9 August 2012, the applicant was the Operational Maintainer responsible for directing a train, driven by Mr Winter, which concluded a propelling movement by colliding with a group of rail wagons that were standing stationary on a track known as the 4 road.

[46] It is further not in dispute that at the time the applicant was accompanied by a Trainee Operational Maintainer, Ms Pretorius, whom was under his instruction.

[47] Following the collision an investigation was undertaken and statements were taken from a number of employees working in the yard that night.

[48] The conclusion from the respondent’s investigation as included in their Investigation Report 2that led to its decision to dismiss the applicant was that the central reason for the collision occurring was that the applicant was not preceding the propelling movement.

[49] The Investigation Report under a heading “Human Factors” in its analysis and findings says that the Operational Maintainer chose not to precede the movement. Further that the Operational Maintainer had called for the wrong road (rail line or track) and did not realise that the wagons were propelling into number 4 road where there were other train wagons standing.

[50] The Operational Maintainer was still standing at the ground shunt signal when the train collided with the train standing on number 4 road. The train had propelled approximately 300 m without being preceded by the Operational Maintainer over three sets of points.

[51] In the conclusion the Investigation Report says the Operational Maintainer did not know what the train had collided with and only instructed the driver to stop after the train had hit the standing wagons. It took the Operational Maintainer five minutes to walk back to the point of impact.

[52] The respondent’s critical conclusion was that the responsible employee, the applicant, did not precede the train movement and knowingly allowed the train to propel with no protection.

[53] As mentioned previously a number of witnesses gave evidence as to the events of that evening and also to related matters including the practice with regard to preceding movements by employees generally in the West Kalgoorlie depot.

[54] Having considered that evidence including the statements made by a number of employees at the time of the incident, the witness statements of various employees submitted prior to the hearing of this matter and these employees’ oral evidence in chief and under cross examination my conclusions are set out below.

[55] The evidence of Mr Woodcock casts little light on this matter. It is enough to say that I do not accept that at the time of the collision the applicant was required by the respondent to undertake duties that were beyond his classification but in any event even if I am wrong the evidence does not support the conclusion that the work being undertaken by the applicant on the night in question so burdened him that this was a mitigating factor to be taken into account in his favour when considering his culpability regarding the train collision.

[56] Turning then to the applicant’s evidence, the applicant sought in his oral evidence to explain that whilst he had initially made an error as to which track or road the train was to propel into he realised this before the train movement started but chose not to correct this. His evidence was that he believed that the points were set for the wagons to go into 4 road.

[57] There was some inconsistency in the applicant’s evidence about his extent of understanding or confusion as to which road the train was propelling into however this is not a critical issue. If the applicant had, as was required of him, preceded the movement of the propelling train he would have at all times been aware which road the train was propelling into (the applicant says this himself 3) and he would have been aware well in advance that the train was propelling towards the standing wagons and was obviously going to collide with them. As such whether the applicant had made an error as to which road the train was propelling into or alternatively if he was aware of this at all times, is not the critical issue.

[58] The critical issue in this case is whether, as he was required to, the applicant preceded the propelling movement or not. His explanation was that as the train movement began he was adjacent to the lead wagon however the train began to get away from him at which point he fell behind. He says he was confused and unsure as to what to do right up until the point some moments later when the collision occurred.

[59] This evidence of the applicant is contrary to the evidence of Ms Pretorius which is contained in her witness statement which was provided to the applicant and his representatives in accordance with the directions well before the hearing. Ms Pretorius was a Trainee accompanying the applicant at the time of the events which is not disputed by the applicant. Ms Pretorius was not cross-examined about the content of her witness statements but was asked questions on other matters. Her evidence as to what occurred on that night as set out in her witness statement was unchallenged.

[60] Ms Pretorius’s evidence was that she was standing with the applicant near the ground signals and when the signal was yellow the applicant called the locomotive driver, Mr Winter, on the radio to push the wagons in. Her evidence is that she and the applicant remained in the area between the shunt signal and the short 4 points while the shunt movement was carried out.

[61] Her evidence was that after the movement started the applicant said words to the effect of “I’m sure the examiner has set the road”. Her evidence was the way in which he said it made it sound as if he wasn’t sure. This evidence refers to the direction in which the track points had been set which determines which road the train would be pushed into.

[62] Her evidence was that she then heard a loud bang and the wagons being shunted came to a halt.

[63] Ms Pretorius’s evidence was that she and the applicant then walked to where the lead wagon of the shunt had collided with a wagon on 4 road. She says that this walk seemed to take a long time. She said the applicant seemed nervous and unsure of what had happened.

[64] Ms Pretorius in cross examination could have been asked to confirm that what occurred was as the applicant said, specifically that he was preceding the movement when it commenced but the lead wagon got away from him and he fell behind, however she was no asked about this.

[65] Ms Pretorius’s evidence means that whilst the propelling movement of the train was underway she and the applicant did not move so as to remain in a position where they were preceding the train. Rather she and the applicant remained in the area where they were when the movement commenced and so that the lead wagon of the train was moving away from them. Her evidence indicates that the applicant was unsure as to which track the train was heading towards because he was unsure in which direction the points had been set by the examiner. Importantly her evidence also demonstrates that when the collision occurred the applicant was a long distance behind the lead wagon because she says that it seemed to take a long time to walk from where they were to the point of collision. Quite simply her evidence if accepted over that of the applicant would mean that the applicant was not preceding the movement of the propelling train at all.

[66] Ms Pretorius gave her evidence in a straightforward and open manner. She was never challenged on the evidence in her witness statement which was in direct conflict with the evidence of the applicant notwithstanding that the applicant prior to the hearing was fully aware of that evidence.

[67] In contrast the applicant in his evidence expanded on matters that he had not previously raised during the investigation and was far from clear on a range of issues when he was challenged in cross examination.

[68] Immediately following the incident before the applicant finished his shift he made a statement about the incident in a memorandum which is attached to the Investigation Report. In that statement the applicant said that during the movement the lead wagon got ahead of him and made contact with the standing wagons before he became fully aware that the points were not set for an alternative line.

[69] In this statement the applicant was saying that he believed the points were set for a different line or track than was the case and he only became aware of this mistaken belief after the collision occurred.

[70] However in his oral evidence in chief contrary to this, he said that he was aware at the time that the train was propelling into 4 road and could even see the standing wagons on 4 road with which the train collided 4.

[71] His evidence was that by mistake he had got clearance from train control to move the train into 4 road rather than the arrival road but had realised his error in calling the incorrect road and he decided it didn’t matter and it would take too long to correct the call and have the signal changed by train control 5.

[72] When it was put to him in cross examination that the true version of events was that he had made a mistake calling for the train to be directed down 4 road when he had intended for it to go down the arrival road and he was not aware of his error until the moment of the collision, a proposition which was consistent with his statement made on the day of the collision, he denied that was the case at all 6.

[73] Separately in cross examination following the applicant’s statement that before the propelling movement commenced he had realised the mistake he had made and was fully aware that rather than the train propelling into the arrival road it would be pushing wagons into 4 road he agreed that he gave no indication to either Mr Winter the train driver or Mr Meiring, another Operations Maintainer who would be subsequently involved in shunting this train, that the train would be propelling wagons into 4 road.

[74] Significantly if this evidence is accepted this means that the applicant was unconcerned at the prospect that the locomotive driver was being directed to begin a propelling movement without being aware which road the train would be moving on to and in fact in all probability believing the train was propelling into one road when in fact it was propelling into a different road. The evidence of Mr Meiring confirms that his understanding was that the plan was for the applicant to control the movement of the train onto the arrival road 7. In my view the applicant’s explanation is quite unlikely and together this on balance draws me to conclude that the applicant has not been truthful about this issue and in fact did not know until the collision occurred that the train was propelling into 4 road at all. In any event in the alternative, if the applicant’s evidence on this is correct, his failure to advise the locomotive driver which road he was propelling into was a significant failure of itself.

[75] I accept the evidence of Mr Fouche as to the safety management system and AWR standards and procedures that relate to shunting. The applicant in cross examination readily conceded that he was both bound to observe the respondent’s standards and procedures for shunting and was aware of these 8. The applicant agreed he was also obliged to comply with the WestNet rules.

[76] Specifically the applicant in his evidence agrees that he is bound by the respondent’s rules that require:

“Where a train is being propelled, a qualified employee must precede the leading vehicle to protect the movement and in the event of a driver being unable to see, or the qualified employee is out of radio contact, one or more qualified employees must be positioned to repeat any signals.”

[77] He said that at the point of collision he was approximately 100 m away, behind the lead wagon of the group of wagons that was being propelled. When asked how it was that he believed this satisfied his obligation to precede the movement his evidence was that he cannot see anything that requires him to be physically in front of the lead wagon. His evidence was that he was visually preceding the movement to the best of his ability. Assumedly to then explain why there was a collision he then referred to “all the distractions” and that perhaps because his visibility may not have been 100% 9.

[78] Contrary to this view Mr Fouche says that an Operational Maintainer could not precede a propelling movement from a position of around 100 m behind the lead wagon 10.

[79] The applicant also gave evidence about a range of mitigating factors which he argues contributed to the collision, a none of which were mentioned by him in the statement he made in his memorandum at the time of the incidient.

[80] In his witness statement the applicant says that one of the contributing factors to the collision was the poor lighting in the workplace 11.

[81] Contrary to this under cross examination when asked about another movement carried out 15 minutes earlier in that shift and whether it was safe for him to control that movement when he was some distance from a set of points and the wagons, he stated there was sufficient light for him to see a distance of 100 to 140 m satisfactorily 12.

[82] There are obviously a number of inconsistencies over time in the applicant’s explanation of the incident and his actions.

[83] Taking into account all of the applicant’s evidence at the hearing, his witness statement made prior to the hearing and his statement given at the time of the incident and the responses he gave during the investigation by the respondent I have concluded that to the extent that there are conflicts between his evidence as to the events leading up to the collision and the evidence of Ms Pretorius in terms of credit I prefer the evidence of Ms Pretorius over that of the applicant.

[84] My findings are that the applicant did not precede the propelling movement of the train and that when the train collided the applicant was such a distance from the lead wagon that he did not know what it had collided with and it took him some minutes to walk to that point. I find that the applicant did not advise the train driver Mr Winter that he was not propelling into the arrival road which was empty, but was actually pushing the wagons into 4 road where there was already a group of wagons standing.

[85] I accept that the conclusions of Mr Fouche as contained in the Investigation Report into the collision are correct.

[86] It is not disputed that the collision did not result in any injury to persons nor any damage to the respondent’s trains or other infrastructure.

[87] I accept the evidence supports a finding as the applicant points out that at the time the collision occurred Mr Winter the train driver was exceeding the yard speed limit.

[88] I have however rejected the evidence of the applicant that the reason he was not preceding the propelling movement as it occurred was that the train was moving too fast for him and had got away from him. My finding is that at no time did the applicant precede the movement of the train. That being the case whilst it is not excusable for Mr Winter to have broken the speed limit within the yard this factor is not a mitigating factor which explained the failure of the applicant to precede the propelling movement.

[89] It is also submitted on behalf of the applicant that Mr Winter was directed by the applicant to “Ease it off, six wagons to go” but he failed to take steps to slow the train which contributed to the collision. Whilst the evidence supports this view, Mr Winter’s reaction to rely only on the normal slowing action of the loaded train but without applying braking 13, was consistent with his understanding that he was propelling the train into the vacant arrival road and he was unaware that instead he was propelling the wagons into 4 road where there was a group of stationary wagons. As the radio transcripts demonstrate immediately after the collision Mr Winter asks what he has hit.

[90] In any event the respondent’s criticism of the applicant is focused on his failure to precede the movement not the error he made in directing the train down another road. That criticism by the respondent of the applicant would stand whether or not there had been a collision. Obviously if the applicant had preceded the movement as required he would have seen early on that the train was travelling down 4 road and would have seen the impending collision and so could have given Mr Winter a firm instruction to stop and avoid the collision.

[91] I note that Mr Winter was disciplined with a warning and quite properly so for his failure to comply with the yard speed limit.

[92] In terms of other mitigating factors the applicant says in his evidence that it was dark, there was some urgency and pressure upon him at the time, that he was tired and stressed and these were all contributing factors that should be taken into account.

[93] Having considered the evidence on each of these issues I am not satisfied that these were matters that explained let alone excused the applicant's conduct on this occasion. Rather it seems that these excuses have been put forward very late in the day and there seems to be little substance to them. For example the lighting within the yard is that which would normally exist and all other employees experience this same working environment without difficulty. There is no evidence that the applicant has previously complained about poor lighting in the area. Indeed at times during the hearing the applicant has argued that lighting was not a problem at all. The suggestion that he was under time pressure is at odds with the evidence of a number of witnesses to the contrary. That evidence was that employees were always able to take a break if they wished and were not obliged to work through their rest breaks and further there was nothing particularly urgent about the work to be carried out on the night in question. Finally in terms of supervising a Trainee this is something that experienced Operational Maintainers regularly do as part of the role and there is no evidence that during the period leading up to the collision these supervisory responsibilities of the applicant in anyway interfered with him doing his work properly.

[94] Some evidence was given by Mr Adams about other incidents involving other employees in an attempt to draw a distinction between the treatment of the applicant and those involved in these prior incidents. There was however not sufficiently detailed information before the Commission that would allow me to draw any conclusions as to whether the applicant was treated differently from other employees in the past. If the Commission is to be asked to come to this conclusion the the full detail of those past incidents needs to be put forward together with the detail of what disciplinary action was taken by the respondent, if any, and any other relevant detail such as past work record or other matters that were taken into account at the time.

Legislation

[95] The legislation prescribes a number of matters the Commission must take into account when considering whether a dismissal of an employee was harsh, unjust or unreasonable. These are set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

Consideration

Valid reason for the dismissal

[96] With respect to whether or not there was a valid reason for the dismissal of the applicant I am satisfied that on 9 August 2012 the applicant failed to adhere to the respondent’s shunting rules by not preceding a propelling movement of a train for which he was responsible as the Operational Maintainer. This conduct by the applicant created a serious safety hazard which put at risk the safety and welfare of other employees. The applicant’s own evidence was that whilst the train movement was under way he was not aware of the position of other employees in the area.

[97] The requirement for Operational Maintainers to precede propelling movement is a safety critical task because propelling movements are high risk and if not carried out properly have the potential to result in damage to property, derailment of rolling stock and injury to persons or even death. As Mr Fisher pointed out in his evidence rail wagons roll almost silently while propelling and may be many hundreds of metres away from the locomotive and consequently it is essential for the Operational Maintainer to precede the propelling movement in order to protect the area into which the wagons are being propelled.

[98] In layman’s terms if the Operational Maintainer does not precede the propelling movement then the locomotive driver is blind. Without the Operational Maintainer preceding the train movement and being able to see what is immediately in front of the lead wagon the locomotive driver has no way of knowing what obstacles may be on the rail line nor will he be aware whether there are people or vehicles approaching the track in front of the lead wagon which the train is likely to collide with.

[99] The hard coupling collision which occurred in this instance demonstrates why the rule exists that all propelling movements be preceded by the Operational Maintainer. In this instance the Operational Maintainer, the applicant, did not precede the propelling movement and consequently he, acting as the eyes of the locomotive driver, did not see that there were stationary wagons standing on the track with which the propelling train was going to, and did, collide. It was fortunate on this occasion that there was no serious damage to property or persons however that does not reduce how serious a safety breach this was.

Notification of the reason for the dismissal

[100] The applicant was notified of the reason for which the respondent was considering dismissing him in a meeting on 27 August 2012. This was detailed in a letter to him of that date which explains that the allegation that he had not preceded the train movement had been established by the respondent to be correct. The reason which the respondent dismissed the applicant for was repeated in the termination of employment letter dated 3 September 2012.

Was there an opportunity to respond to the reason for dismissal?

[101] The reasons on which the respondent relied to dismiss the applicant were discussed with him at a meeting on 27 August 2012 following which he was advised in writing that the respondent had concluded that it was established that he had not preceded the train movement and he was invited to respond to the allegations and to raise any additional mitigating circumstances or other factors that he believed the respondent should consider and that his response would be considered when the company made its final decision.

[102] The applicant replied to this invitation in writing on 31 August 2012.

Was there an unreasonable refusal by the employer to allow the applicant to have a support person present at discussions?

[103] There was no refusal by the respondent employer to allow the applicant to have a support person present during discussions of the reasons for which he was ultimately dismissed. Indeed at the meeting on 27 August 2012 and subsequently the meeting at which his employment was terminated the applicant was accompanied by Mr Adams who is the sub-branch Secretary for the Australian Rail, Tram and Bus Industry Union, WA branch.

This size of the employer and the procedures followed and whether there was dedicated human resource expertise

[104] The investigation into the collision incident was conducted quite properly by the respondent’s staff and the applicant had an appropriate involvement in that. Criticisms of that process can be made but this is often the case where investigations are carried out by people who are infrequently involved in such processes. The relevant point is it cannot be said that any shortcomings in the investigation have caused prejudice to the applicant of any substance.

[105] Following the investigation into the collision the respondent again appropriately in my view under took a disciplinary process where the allegations that arose from the investigation into the collision were put to the applicant and he had an appropriate opportunity to respond and to explain what had occurred from his perspective. He was then advised that it was the company’s intention to discipline him which may include termination of his employment. He was provided with the opportunity some days later to respond and provide whatever other information he wished for the respondent to consider and he in fact did so as noted above.

[106] The employer is a large employer that does have dedicated human resource expertise and I am satisfied that the procedures followed in effecting the dismissal were appropriate in those circumstances.

Other matters

[107] On behalf of the applicant it was argued that it was common practice in the Kalgoorlie depot for Operational Maintainers to not precede propelling movements and indeed the dismissal of the applicant was the first time that a failure to precede a movement had led to an employee’s dismissal.

[108] The applicant pointed to a notice that had been sent to the Kalgoorlie depot by the respondent in 2012 by a Mr Morrow wherein he raised a series of safety concerns including examples of safety breaches which expressly mentioned “failing to precede propelling movements”. This was put forward as demonstrating an endemic problem at Kalgoorlie.

[109] It was explained however by the respondent’s advocate that this notice had been sent to all of the respondent’s operations throughout the south-west of Western Australia and does not prove this was a particular issue at the Kalgoorlie depot.

[110] The evidence of Mr Fouche was that he dealt with the particular issues of preceding movements at the Kalgoorlie depot in his Investigation Report. In that Investigation Report 14under the heading“Organisation − Culture/Training/Support” he said that it was identified that preceding of rolling stock movements was a concern at West Kalgoorlie as a culture developed over a period of time:

“...that rolling stock was not closely watched when setting. For this reason the focus was placed on preceding of rolling stock for a long time.” (Underlining added)

[111] Mr Fouche was cross-examined on this point 15 and he explained that the problem was that some employees were not preceding train movements correctly because they positioned themselves too far away from the wagons such that if they were to observe a person who was walking across a track who would be struck by the lead wagon they were not close enough to prevent that accident.

[112] In his evidence he strongly denied that there were situations he was aware of where employees were not preceding movements. The point he was making in the Investigation Report was that there were indeed circumstances where employees were not preceding the movement correctly and this was the culture he referred to. In these cases the employees were positioned too far away from the wagons even though they had a proper view preceding the movement. He wanted them to be closer to the movement so that they could for example stop members of the public wandering around the yard who would be in the way of moving wagons.

[113] There was a clear distinction between the problem Mr Fouche identified in his Investigation Report at the Kalgoorlie depot and what had occurred in this case where the applicant failed to precede the movement at all.

[114] Mr McGilvray in his evidence drew the same distinction as Mr Fouche agreeing that the problem that had existed for some time was not that employees were failing to precede the movement at all but rather that they were doing so incorrectly.

[115] There was further evidence of the focus that had been placed on the need to correctly precede all propelling movements at the Kalgoorlie depot from a number of witnesses which included that the issue was raised fairly regularly at the pre-start meetings before shifts.

[116] Mr Adams observed that in his nine odd years at the depot there had been numerous incidences of not preceding the wagons however he also acknowledged that the employer had put in place safety campaigns of various types to address this.

[117] On balance in my view the evidence does not support the argument of the applicant that what he did on this occasion in not preceding the propelling movement was commonplace and as such it was an overreaction for the respondent to dismiss him for something others at the depot also regularly failed to do. Rather I accept the evidence of Mr Fouche and Mr McGilvray that the employer had recognised that there was a problem with the manner in which Operational Maintainers were preceding propelling movements in that at times they did so at a distance that was judged too far away and that this had been the subject of a remedial safety campaign by the employer. As such this problem that had been addressed by the respondent was quite different from the applicant’s failure to precede the movement at all.

[118] At the time of his dismissal the applicant had been employed for just under seven years. In terms of his work record Mr McGilvray gave evidence that this was one of the considerations which he took into account when recommending to his superior that the applicant be dismissed.

[119] The applicant had received a warning for unsatisfactory conduct in 2010 to do with a locomotive derailment. The applicant was sent a letter in February 2012 following an audit that demonstrated that he had not been keeping up to date with reading and signing off on the various workplace instructions, safety alerts and rail operations safety manuals as they were provided to staff from time to time. There was also an incident in July 2012 where the applicant was driving a vehicle which had collided with a power pole in the container terminal however this matter had not been fully investigated before the applicant’s dismissal.

[120] In addition Mr McGilvray gave evidence that during the disciplinary meetings regarding the collision he was concerned that the applicant was not willing to engage over the issues and seemed to not accept that what occurred was a serious problem. The applicant’s attitude to what had occurred in this way caused Mr McGilvray to fear that the applicant could repeat this failure to follow the shunting rules in the future if he remained employed with the respondent.

Conclusion

[121] In this matter the applicant’s employer has a range of rules, standards and procedures that are aimed at minimising the risks to its employees, the general public and property from the movement of locomotives and rolling stock during shunting at the Kalgoorlie depot where the applicant worked. These requirements are one way in which the respondent seeks to discharge the legislated obligations it has to maintain a safe place of work.

[122] The applicant as an Operational Maintainer was aware of his obligations in this regard when he was in charge of a train movement. Specifically the applicant was fully aware of the requirement that the Operational Maintainer must precede a train that is undertaking a propelling movement.

[123] On 9 August 2012 the applicant was the Operational Maintainer in charge of a train undertaking a propelling movement. During this movement the applicant failed to precede the lead wagon as he was obliged to. The applicant’s failure to precede the propelling movement was a serious breach of safety which unnecessarily put other employees and other persons at risk and was the central reason for that train colliding with a stand of stationery wagons.

[124] In these circumstances and considering all of the other matters the decision by the respondent to dismiss the applicant was not harsh, nor was it unjust or unreasonable. The applicant has not been unfairly dismissed.

[125] Accordingly this application will now be dismissed and an order will be issued to that effect in conjunction with this decision.

COMMISSIONER

Appearances:

C Fogliani of the Australian Rail, Tram and Bus Industry Union for the applicant.

D Johnston on behalf the respondent.

Hearing details:

2013.

Kalgoorlie:

January 15 to 18.

 1   Transcript at PN807 to PN808.

 2   Exhibit A5.

 3   Transcript at PN891.

 4   Ibid., at PN816.

 5   Ibid. at PN880 to PN891.

 6   Ibid. at PN1469 and PN1470.

 7   Exhibit R5 at paragraph 12.

 8   Exhibit R9, attachment WF2.

 9   Transcript at PN1492 to PN1463.

 10   Ibid. at PN2518.

 11   Exhibit A10 at paragraph 14(d).

 12   Transcript atPN1240.

 13   Ibid. at PN2506 to PN2512.

 14   Exhibit A5 and Exhibit R9, attachment W7.

 15   Ibid, at PN2319 to PN2323.

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