Jamie Dransfield v Rail Commissioner
[2012] FWA 8444
•12 OCTOBER 2012
[2012] FWA 8444 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamie Dransfield
v
Rail Commissioner
(U2012/5603)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 12 OCTOBER 2012 |
Termination of employment - valid reason - misconduct - initiation of physical contact - not harsh, unjust or unreasonable.
[1] On 2 March 2012 Mr Dransfield lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with the Rail Commissioner. The application was not settled through the conciliation process and was referred to me for arbitration on 11 September 2012. It was the subject of an arbitration on 19 and 20 September 2012. At this hearing, Mr Dransfield was represented by Mr Phillips of the Australian Rail, Tram and Bus Industry Union-South Australian and Northern Territory Branch, and the Rail Commissioner, by Mr Moritz.
[2] Section 396 of the FW Act requires that I determine a number of preliminary issues before considering the merits of Mr Dransfield’s application. I am satisfied that Mr Dransfield’s application was made within the statutory time limit.
[3] Mr Dransfield was engaged under the provisions of the Rail Commissioner Rail Operations Enterprise Agreement 2012. The Rail Commissioner is a body corporate under the Rail Commissioner Act 2009. That same Act authorises the appointment of staff. The distinction between state and federal covered employees is, at best, an administrative one. However, in this situation I am satisfied that the Rail Commissioner Act 2009, read in concert with the Statutes Amendment (National Industrial Relations System) Act 2009 and the FW Act, mean that the Rail Commissioner is a national system employer. I note that non-operational staff involved in the South Australian passenger rail system are regarded as South Australian public sector employees. Both parties to this matter have indicated that they regard Mr Dransfield as a national system employee protected from unfair dismissal, and I have accepted this position.
[4] The Small Business Fair Dismissal Code does not apply and the termination of Mr Dransfield’s employment was not a redundancy situation.
Background
[5] Mr Dransfield was a Passenger Services Assistant (PSA) from December 2004. His duties primarily involved ensuring compliance with the Passenger Transport Act, the provision of advice to rail system customers and customer service protections. 1
[6] On 1 December 2011 Mr Dransfield was working at the Mawson Lakes Interchange facility where passengers had to transfer from trains to buses. He was involved in an incident involving two men he saw get off a train and then attempt to board a bus. There is no dispute that the men were behaving erratically and appeared to be intoxicated. There is no dispute that one of the men was abusive and threatening toward another PSA shortly before the men arrived at the bus. While the men did not actually enter the bus, Mr Dransfield stopped near the bus door and advised the men that they were not permitted to board the bus. The exchange between Mr Dransfield and the two men was the subject of evidence which indicates that the men were most likely abusive and that they made various verbal threats directed at Mr Dransfield.
[7] During the exchange, Mr Dransfield pushed one of the men, causing him to fall to the ground. There followed substantial altercations involving the two men and Mr Dransfield. The police ultimately attended the incident.
[8] Mr Dransfield reported the incident. He was stood down pending an investigation. He attended, and was represented at a subsequent investigation interview. He was provided with the allegations against him and attended a disciplinary interview on 20 February 2012 at the conclusion of which he was advised of the termination of his employment. Written confirmation of this was later provided to him.
The submissions
[9] Mr Dransfield’s position was that he had initiated physical contact with one of the men after he was subjected to extreme verbal abuse and when he thought that he was about to be physically assaulted. Accordingly, he argued that his action was warranted. Mr Dransfield advised that he was not charged with assault, that the two men were known to the police, were causing a public nuisance and represented a threat to passengers. On this basis, Mr Dransfield argued that there was no valid reason for the termination of his employment.
[10] Further, Mr Dransfield argued that, given his good and long term employment record, the incident could not be considered as warranting termination of employment.
[11] Mr Dransfield submitted that, whilst closed circuit television film (CCTV) of the incident was made available to him, it should have been shown again at the final disciplinary interview with the Rail Commissioner so that he was able to explain his actions in the context of that film, and that the failure to do so represented a substantial unfairness to him.
[12] Mr Dransfield argued that the termination of employment process was flawed and inconsistent with the Rail Commissioner’s established policies and procedures. He particularly drew attention to the policy requirement that the investigation and disciplinary conclusions should be reached by the same person, whereas in this instance Mr Ruddock, the Manager, Train Operations, undertook the investigation while the Rail Commissioner, Mr Doggett reached the final disciplinary conclusion.
[13] Mr Dransfield sought reinstatement.
[14] The Rail Commissioner’s position was that the process followed to investigate the incident, and its decision-making steps, ensured procedural fairness. Further, that the CCTV clearly showed that Mr Dransfield initiated the physical contact and did not support Mr Dransfield’s contention that he acted in self defence. Further, that Mr Dransfield’s advice to him on 20 February 2012, to the effect that if a similar circumstance arose in the future, he would act in the same way, was an important consideration in his decision to dismiss Mr Dransfield.
[15] The Rail Commissioner, Mr Doggett agreed that consistent with the relevant policies the same person should have conducted the investigation and determined the disciplinary outcome but argued that the delegation of this function and his subsequent conduct of a final disciplinary interview which involved Mr Ruddock and Mr Dransfield and his representatives meant that the process was fair.
[16] Finally, the Rail Commissioner submitted that Mr Dransfield’s conduct was such that it clearly breached the South Australian Public Sector Code of Ethics so as to warrant termination of employment.
The Evidence
[17] I have taken all of the evidence before me into account. While not exhaustively recounting the witness evidence, I have summarised it in the following terms.
[18] Mr Dransfield’s evidence was that he observed one of the two men alighting from a train and acting aggressively. He subsequently saw that person act aggressively toward another PSA who was preventing people from walking onto a roadway. Mr Dransfield followed the men to a bus and advised them that they could not travel on the bus as they were too aggressive. Mr Dransfield’s evidence was that the men then verbally threatened to hit him. One of the men walked away from him and the other turned, saying “I’ll bash you”. Mr Dransfield’s evidence was that the second man then made a movement which he took as indicating that he was about to be hit. As a consequence, Mr Dransfield pushed that man away from him. The man fell over and then said he was telephoning the police.
[19] The second man returned to Mr Dransfield aggressively and Mr Dransfield’s evidence was that he pushed him away, that both men maintained substantial verbal abuse which continued until the police arrived and took the men away.
[20] Mr Dransfield’s evidence was that the police officers advised him the men were known to them and that he was not charged or further contacted regarding the incident.
[21] Mr Dransfield filed an incident report form shortly after the incident. He attended work the following day. Later that afternoon he was requested to attend a meeting with his manager, Mr Caruso, in Adelaide. Mr Ruddock, the Rail Commissioner’s Manager Train Operations was in attendance. Mr Dransfield’s evidence was that Mr Ruddock referred to his incident report and advised that he would be stood down with pay. Mr Dransfield asserted that Mr Ruddock did not advise him of possible disciplinary action but did give him a letter which he later read. The letter advised Mr Dransfield of alleged misconduct which would be subject to later investigation. This advice confirmed that Mr Dransfield could be represented in this process.
[22] On 15 December 2011 Mr Dransfield’s lawyer lodged a General Protections application on his behalf. This application was the subject of a telephone conference with Hampton C on 5 January 2012. As a consequence of this conference Mr Dransfield agreed that he would participate in the investigation interview process.
[23] Mr Dransfield and his lawyer met with Rail Commissioner personnel, Mr Ruddock and Mr Moritz, on 17 January 2012. He agreed that, before the meeting, CCTV film of the incident and the available witness statements were made available to him and his solicitor. At the meeting Mr Dransfield detailed his recollection of the incident. He was subsequently provided with a copy of the meeting notes. Through his lawyer, he later requested some changes to these notes.
[24] On 27 January 2012 the Rail Commissioner wrote to Mr Dransfield requesting a formal disciplinary interview. This advice stated:
“At this meeting, you will be asked to respond to the allegation that, in dealing with two male passengers at the Mawson Lakes Interchange at approximately 6.00 pm on Thursday 1 December 2011, you responded inappropriately to the situation by initiating physical contact with one of those passengers, resulting in that person being knocked to the ground in full view of other passengers and members of the public.
In considering the nature of your response to that situation, you will be asked to comment on the extent to which your alleged actions may have represented a breach of the Code of Ethics applicable to all SA public sector employees and, as such, may require the imposition of disciplinary action on the basis of misconduct.
You will be given the opportunity to respond to the allegation and state any mitigating factors that you believe should be considered in that context.
You should be aware that the outcome of this disciplinary process may result in one of the following:
1. No further action being taken,
2. A formal written warning being issued,
3. Consideration of termination of your employment.
As previously advised, you may be accompanied and supported by your union representative or another person of your choosing.
Please be assured that consideration of the issues involved will be a private, confidential and impartial process. To that end, you are reminded that you are not to discuss this matter with any other employee or person who may have been involved at the time.” 2
[25] At the formal disciplinary meeting on 20 February 2012, Mr Dransfield was supported by his lawyer, Mr Phillips from his union, a fellow OHS employee representative and his partner. The Rail Commissioner, Mr Doggett attended with Mr Ruddock and other Rail Commissioner personnel. Mr Dransfield’s requested changes to the earlier meeting notes were accepted and Mr Dransfield confirmed that he was given a further opportunity to explain his actions. His evidence was that he maintained his position that his actions in pushing or shoving the first man were taken in self defence in that he considered that the man was about to hit him. The meeting was adjourned. Mr Dransfield’s evidence was that on its resumption, Mr Doggett advised him that his employment was terminated on the basis that he had assaulted the first man.
[26] Mr Dransfield later received written confirmation of this termination of employment dated 20 February 2012. This advice confirmed that the termination of his employment was for misconduct and the payment of four week’s pay in lieu of notice.
[27] Ms Hage is a Passenger Service Assistant. Her evidence was that she observed the two men who were later involved in the altercation with Mr Dransfield while she was on duty on a train proceeding to Mawson Lakes. One of the two men appeared to be more intoxicated than the other. She had to ask this man to remove his coat from another passenger and reduce his noise level. The man complied with her request. Ms Hage’s evidence was that she was advised that the men were causing trouble near the buses and informed Mr Dransfield that the men had been on her train and were intoxicated.
[28] Mr Stewart is a Southlink Supervisor whose evidence was that shortly before the incident he was positioned to stop passengers walking between two buses onto the road. He was confronted by one of the two men who had a clenched fist and was verbally abusive towards him. He avoided confrontation with this man by stepping aside and subsequently advised a Wilson Security Officer that the man should not be allowed to board buses.
[29] Mr Gardsenni is a Southlink bus driver. I note that Mr Gardsenni is clearly visible on the CCTV film of the incident. Mr Gardsenni’s evidence went to his observations whilst he stood on the footpath facing the bus where the incident occurred. Mr Gardsenni’s evidence was that the two men were intoxicated and were abusive and verbally threatened Mr Dransfield. Mr Gardsenni’s initial evidence was that one of the men stepped toward Mr Dransfield who pushed him in the chest area with opened hands, causing him to fall over. Having looked at the CCTV film, Mr Gardsenni acknowledged that his evidence in this particular respect was mistaken. Mr Gardsenni’s evidence also extended to the continuing threats and agitation which occurred after the initial incident.
[30] Mr Thompson was a Passenger Service Assistant who provided a witness statement but was not able to give evidence as he was overseas. I have accepted his statement and note that he accompanied Ms Hage on the train to Mawson Lakes. Mr Thompson did not observe the incident.
[31] Mr Ruddock’s evidence was that, when he was advised by Mr Caruso, on 2 December 2011, of the incident report form he arranged to review the CCTV film. He subsequently advised the Director Rail Operations and the Rail Commissioner, Mr Doggett of the matter and agreed with them that the incident required further investigation. Mr Ruddock’s evidence went to the discussions he had with Mr Dransfield on 2 December 2011 to the effect that Mr Dransfield was stood down with pay from that day. Mr Ruddock detailed his subsequent investigation of the incident including the steps he took to obtain witness statements and his discussions with Mr Dransfield’s union and lawyer up to and including the investigation interview on 17 January 2012. Mr Ruddock’s evidence went to his further discussions with the Rail Commissioner which included consideration of the CCTV film and the Rail Commissioner’s decision to ask Mr Dransfield to attend a disciplinary interview.
[32] Mr Ruddock also gave evidence about the conduct of the disciplinary interview on 20 February 2012.
[33] Mr Caruso is Mr Dransfield’s manager. His evidence went to the role of the Passenger Service Assistants and the requirement that they avoid becoming involved in physical confrontations wherever possible. 3 Mr Caruso’s evidence went to his consideration of the incident report form and the actions he then took to advise Mr Ruddock and obtain the CCTV film. Mr Caruso was involved in the 2 December 2011 stand down interview but was not further involved in this matter.
[34] Mr Caruso’s evidence was that PSAs were provided with daily briefings and were regularly advised to withdraw from conflict situations and seek assistance from specialist security personnel. Further, that long-standing work instructions stressed the importance of avoiding conflict situations. Mr Caruso advised that physical conflict situations were rare but that where they occurred, support to the staff member was provided and the matter was investigated. Finally, Mr Caruso advised that in July 2010 he had twice arranged for Mr Dransfield to attend a conflict resolution course but that for various reasons Mr Dransfield was not available and the matter had not been pursued.
[35] Mr Doggett’s evidence went to the structure of the Rail Commissioner entity and his delegated authorities. He detailed his involvement in the matter, including his consideration of the CCTV film, witness statements and discussions with officers involved in the investigation process. Mr Doggett recounted his concern that Mr Dransfield had acted inappropriately in initiating physical contact with a member of the public and had not referred the matter to the available security staff. He detailed his preparation for, and involvement in, the disciplinary interview on 20 February 2012 and the conclusions he reached in deciding to terminate Mr Dransfield’s employment on that day.
[36] I have also considered the various witness statements provided by Rail Commissioner and Southlink staff as part of the investigation process.
[37] Of critical importance in this matter is the CCTV film. This film depicts the two men approaching, but not boarding a bus. It shows Mr Dransfield arriving at the bus and talking with the two men. It shows Mr Gardsenni watching the discussion but other members of the public walking past without paying any significant attention to the discussions. It shows one of the men apparently placing something in a wallet which he then put in a rear trouser pocket. It shows the other man walking away from the bus and Mr Dransfield. Mr Dransfield then changes position so that he moves a little further away from the bus. The second man then walks between the bus and Mr Dransfield. When he has passed Mr Dransfield, Mr Dransfield steps forward and pushes him firmly in the back. The man falls over and before getting up appears to commence making a mobile telephone call. The first man returns with a clearly aggressive posture and approaches Mr Dransfield who pushes him away. This man maintains an aggressive posturing position and is later joined by the other man. After the first man was pushed security personnel can clearly be seen observing the situation but do not actually become involved in the matter.
Findings
[38] Before considering the criteria set out in s.397 of the FW Act, I have reached the following conclusions with respect to the factual matrix.
[39] I have concluded that Mr Dransfield was or should have been aware from his induction training and regular briefings and instructions that physical conflict situations should be avoided and security personnel assistance obtained. 4 I have noted that Mr Dransfield has been involved in a number of physical confrontation incidents but have not reached any conclusions about those matters.
[40] There is no evidence that indicates that Mr Dransfield took steps to seek security personnel assistance, either before approaching the two men or, at any stage during the incident. Further, I have concluded that Mr Dransfield did not withdraw from the discussion with the two men and seek security personnel assistance.
[41] I have decided that the evidence of Mr Gardsenni with respect to the physical contact first made by Mr Dransfield is clearly inconsistent with the CCTV film. Mr Gardsenni acknowledged as much in his evidence.
[42] On the basis of the witness evidence of Mr Dransfield and Mr Gardsenni, I have concluded that one or both of the men were physically abusive toward Mr Dransfield and uttered threats directed at him either before or after the first man was pushed. I am unable to discern any physical movement toward Mr Dransfield on the part of the man whom Mr Dransfield pushed firmly in the back which would indicate any form of imminent threat of physical action directed at Mr Dransfield. The man had moved so far away that Mr Dransfield actually stepped forward in order to reach that man and push him. The CCTV footage is fundamentally inconsistent with the applicant’s version of events and does not support the view of an imminent physical threat.
[43] I have concluded that Mr Dransfield’s actions in pushing the first man were not prompted by a physical movement on the part of either man. They may have been prompted by a verbal threat or may have reflected Mr Dransfield’s frustration with the situation.
[44] I have concluded that Mr Doggett’s delegation of the investigation function to Mr Ruddock was contrary to the Rail Commissioner/TransAdelaide/Departmental policy position to the effect that this policy required the investigation to be undertaken by the decision maker. I have concluded that Mr Doggett was the decision maker but that his decision to terminate Mr Dransfield’s employment was only made after he considered all of the investigation material, including the CCTV film and after the disciplinary interview had been concluded.
[45] Section 387 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.”
[46] I have considered each of these factors individually and collectively.
Valid Reason
[47] In Selvechandron v Petersen Plastics Pty Ltd, 5 his Honour Northrop 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.”
[48] Notwithstanding that his Honour was referring to a legislative regime which has now been amended so as to separately identify various elements of the more generic concept of a valid reason, I have adopted this overall approach.
[49] I have already concluded that Mr Dransfield was, or should have been aware of the need to avoid conflict situations wherever possible.
[50] Mr Dransfield initiated physical contact with a member of the public. He pushed that person from behind. I have concluded that Mr Dransfield was not subject to an immediate physical threat, nor that the actions of either of the two men represented a threat to the public at the time that Mr Dransfield initiated the physical contact. Further, I consider that, had he wished to do so, Mr Dransfield could have stepped back from the proximity of the second man rather than stepping forward to initiate the contact with him. Had Mr Dransfield stepped back, he could then have sought specialist security assistance.
[51] I consider it most likely that either or both men behaved inappropriately and were verbally threatening in their behaviour. However, I do not consider that a verbal threat or insult which may have been made by either man as they walked away from Mr Dransfield warranted or justified the action that Mr Dransfield then took. The evidence before me indicates that rude and abusive customers of the rail system are, unfortunately, not uncommon. The evidence of Mr Ruddock and Mr Doggett confirmed that the need for PSAs to initiate physical action was rare and was regarded as a significant and serious matter, whilst they noted that employees needed to protect themselves.
[52] I have considered the gravity of Mr Dransfield’s conduct in the context of his role, his experience and his employment record.
[53] Mr Dransfield’s action in initiating that contact was inconsistent with his function as a Passenger Services Assistant. In his evidence 6 he referred to the position description. I am unable to reconcile Mr Dransfield’s actions with this duty. Further, if physical contact was to be initiated in that particular circumstance, it should have been a police or specialist security officer function. Consequently, I consider that Mr Dransfield’s action was not warranted and substantially escalated the situation and increased risks for passengers and other personnel. That is clear from the CCTV film.
[54] Mr Dransfield had the capacity to do his job. There is nothing before me that establishes that he was unable to do the job, or that he had been inadequately trained. It is apparent that circumstances had arisen in 2010 which prompted management to propose additional conflict resolution training for Mr Dransfield but that training did not occur. Mr Dransfield did not argue to me that he was incapable of doing the job, his argument was fundamentally based on his assertion that his actions were necessary in self defence.
[55] Mr Dransfield’s initiation of the physical contact in these circumstances must be regarded as a serious and significant form of misconduct. It represented an attack on a person in a fashion which is inconsistent with the PSA role and undermines the integrity of the PSA function. Had it been the case that there was clear evidence that Mr Dransfield was, or was about to be attacked, I would have adopted a different position. If the verbal abuse which was directed at Mr Dransfield was determined to be a threat to customer service and the men did not follow requests that they cease that behaviour, I consider that Mr Dransfield’s function was to obtain appropriate security assistance and I am satisfied that the CCTV film shows that assistance was available. Further, I cannot conclude that a verbal threat, made as the man had moved past Mr Dransfield warranted aggressive action which then escalated the situation.
[56] I have noted that Mr Dransfield had been employed for seven years and that he had a good employment record. These are factors that mitigate against this incident being regarded as a valid reason for the termination of his employment as distinct from forming the basis for other disciplinary action. However, I have also noted that, in the final disciplinary interview on 20 February 2012, Mr Doggett had the following discussion with Mr Dransfield:
‘PD: “Do you believe that you acted correctly?”
JD: “Yes, I do. If you see the footage, I was non-aggressive before and after. I didn’t continue on.”
PD: “If the same situation happened again, would you act in the same way?”
JD: “Yes.”’ 7
[57] Mr Dransfield asserts that his response in this respect was taken out of context. However, I consider that Mr Doggett was entitled to understand that Mr Dransfield showed no remorse and considered that his behaviour was appropriate to the situation. This is a factor which supports the incident being regarded as a valid reason for the termination of Mr Dransfield’s employment.
[58] Finally, I have noted that, shortly after the Rail Commissioner’s management became aware of the CCTV film, steps were taken to stand Mr Dransfield down with pay while the matter was investigated. This confirms the seriousness of the incident.
[59] Having considered all of these factors I have concluded that there was a valid reason for Mr Dransfield’s dismissal related to his conduct on 1 December 2011. That conduct went to his initiation of physical contact with a member of the public which was not justified by an immediate threat to his own safety or that of others. That behaviour was inconsistent with his fundamental function and unnecessarily escalated a conflict situation. It was behaviour that was in breach of a number of elements of the Code of Ethics for the South Australian Public Sector, including but not limited to the requirement that public sector employees not act in a manner that a reasonable person would view as bringing them or their agency, or the government into disrepute and the requirement that they treat other persons at all times with respect and courtesy.
Notification of the reason
[60] At the conclusion of the disciplinary interview on 20 February 2012 Mr Doggett advised Mr Dransfield that he was dismissed and of the reason for that dismissal. That advice was confirmed in correspondence to Mr Dransfield which was dated 20 February 2012. This correspondence detailed the incident and the investigation process.
Opportunity to respond
[61] The Rail Commissioner’s correspondence to Mr Dransfield of 2 December 2011 advised that he was stood down with pay. It confirmed that an investigation would occur, the possible outcomes of that investigation, and that Mr Dransfield was able to be represented in this process. Mr Dransfield was represented in the s.372 proceedings before Hampton C. He was represented by a lawyer in the investigation interview on 17 January 2012 and both he, and his lawyer had access to the available witness statements and the CCTV film prior to this meeting. Mr Dransfield had, and utilised the opportunity to review and revise the notes of this meeting. Mr Doggett’s letter to Mr Dransfield of 27 January 2012 specified the requirement that he attend a disciplinary interview, confirmed the possible disciplinary action that could be applied and specified the allegations made against him.
[62] Mr Dransfield was further able to respond during the disciplinary interview on 20 February 2012. Again, that interview was noted and I have been provided with a copy of that record. 8 I do not understand that there is any substantial dispute about the accuracy of that record. I have noted that the CCTV film was not shown during this disciplinary interview. There is nothing however, to indicate that a request to this effect was made by either Mr Dransfield, his lawyer, union official or OHS representative. In any event, I do not consider that the Rail Commissioner’s disciplinary process was inherently flawed because the CCTV film was not again shown at this disciplinary interview.
[63] In overall terms, I am satisfied that Mr Dransfield had a reasonable opportunity to respond to the allegations made about his conduct.
Any unreasonable refusal to allow Dransfield to have a support person present
[64] Mr Dransfield clearly had access to support personnel, in the form of a lawyer and his union official at the relevant times in the investigation undertaken by the Rail Commissioner.
Warnings for unsatisfactory performance
[65] I do not consider that Mr Dransfield was dismissed for unsatisfactory performance. His dismissal was for misconduct. Notwithstanding this, I have taken account of his good employment record in my consideration of whether there was a valid reason for the termination of his employment.
Size of the Rail Commissioner Enterprise
[66] The Rail Commissioner is a substantial employer and, in any event, is closely related to the larger South Australian Public Sector. I do not consider this factor to be relevant considerations in these circumstances.
Absence of dedicated human resource management specialists or expertise
[67] I am satisfied that the Rail Commissioner had available to him dedicated human resource management advice and that this expertise was utilised in the course of the investigation and ultimate decision-making process.
Other matters considered relevant
[68] I consider that a proper application of the human resource management policies applicable at the time of the termination of Mr Dransfield’s employment meant that Mr Doggett was the only Rail Commissioner employee with the delegated authority to dismiss. Further, the policy effectively required Mr Doggett to investigate the allegations against Mr Dransfield. I am not satisfied, however, that the delegation of all, or the substantive part of the investigation process to Mr Ruddock represented any substantive form of unfairness to Mr Dransfield. The evidence is that Mr Doggett was comprehensively briefed about the incident and the investigation process. He considered both the CCTV film and the available witness statements. Mr Doggett did not make a final decision on the termination of Mr Dransfield’s employment until after the disciplinary interview on 20 February 2012 and that interview provided the opportunity for Mr Dransfield to express his position.
Conclusion - Harsh, Unjust or Unreasonable
[69] I have considered other comparable matters. In Kidd v TransAdelaide 9 Hampton C determined that the termination of the employment of a TransAdelaide Tram Operator who pushed a passenger was harsh and unreasonable. There are, however a number of distinct differences between that situation and that of Mr Dransfield.
[70] Firstly, I consider that the situation was different in that the behaviour of the persons involved in Mr Dransfield’s circumstance was not as intrusive or threatening as was the case in Mr Kidd’s situation. Additionally, Mr Dransfield’s capacity to withdraw and seek assistance was more obviously apparent. Further, in Mr Kidd’s case he was permitted to continue working for some weeks after that incident. Mr Kidd both acknowledged his behaviour and expressed remorse. Consequently, I am unable to conclude that this decision lends support for a similar conclusion.
[71] I have also considered a number of other decisions involving instances of alleged assault. 10 I do not consider that any of these matters are directly comparable to Mr Dransfield’s situation such that they provide relevant guidance. I have concluded that these matters demonstrate that each situation must be considered on its merits and there is no clear template with universal application to these situations.
[72] Notwithstanding this, I have acknowledged that the concepts of harsh, unjust or unreasonable may overlap. 11
[73] The termination of Mr Dransfield’s employment could not be considered unjust because the CCTV film speaks for itself and makes his actions in initiating the physical contact absolutely clear. It could not be considered unreasonable because, despite Mr Dransfield’s assertions that he acted in self defence as he thought he was about to be hit, this is simply not consistent with the CCTV film. Hence the Rail Commissioner was entitled to reasonably conclude that Mr Dransfield had breached the South Australian Public Sector Code of Ethics and that his actions represented misconduct.
[74] The question of whether the dismissal was harsh is more complex. In this respect I have considered Mr Dransfield’s personal situation, his employment record and the gravity of the incident. There is no question that the Rail Commissioner could have elected not to terminate Mr Dransfield’s employment. That, however, is not the test. I have concluded that Mr Dransfield understood his work function but that he fundamentally incorrectly evaluated this situation and acted aggressively on this basis. Mr Dransfield did not show remorse or any recognition that he may have made a mistake. Instead, his advice to Mr Doggett was that he would act in a similar way such a circumstance was repeated. Consequently I cannot regard the termination of Mr Dransfield’s employment as harsh. Had Mr Dransfield responded differently but was nevertheless dismissed, I may well have adopted a different position.
Conclusion
[75] For the reasons I have set out, I do not consider that the termination of Mr Dransfield’s employment was harsh, unjust or unreasonable.
[76] The application is dismissed. An order [PR530130] reflecting this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
D Phillips representing Mr Dransfield.
B Moritz representing Rail Commissioner.
Hearing details:
2012.
Adelaide:
September 19, 20 and 21.
1 Exhibit D5 (JD1)
2 Exhibit R7, paras 7-12
3 Exhibit R18, paras 6-9
4 Ibid, paras 6-9 and 13
5 (1995) 62 IR 371 at 373
6 Exhibit D5 (JD1)
7 Exhibit R8, paras 39-42
8 Exhibit R8
9 [2010] FWA 2580
10 [2012] FWA 7622 Callander v Busways Blacktown; [2011] FWA 5740 Fox v Torrens Transit Services (North) Pty Ltd; [2011] FWA 3549 Dissanayake v Busways Blacktown
11 Byrne and another v Australian Airlines (1995) 185 CLR 410 at 465; Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 5 June 1998
Printed by authority of the Commonwealth Government Printer
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