[2016] FWC 1774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laurence Smith
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2015/13937)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 22 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Laurence Smith was employed by KDR Victoria Pty Ltd trading as Yarra Trams from May 2008 until he was dismissed on 7 October 2015.

[2] Yarra Trams dismissed Mr Smith for serious misconduct. He was found to have issued an unauthorised instruction to other tram drivers at the Camberwell depot on 22 May 2015 that they should not attempt to unblock sand-pipes.

[3] At the hearing, Yarra Trams further submitted that even if I found Mr Smith had not given an unauthorised instruction, then I could find that there was a valid reason for the termination of his employment as he was dishonest during the investigation and during the hearing.

[4] The Fair Work Commission must first determine if the conduct occurred and if it did, whether the conduct constituted a valid reason for the dismissal. It must then, having considered the other criteria in section 387 of the Fair Work Act 2009, decide if the termination was harsh, unjust or unreasonable.

The events of 22 May 2015

[5] Trams are fitted with sand dispensers which release sand onto the tracks. It is not disputed that if a tram has blocked sand-pipes it cannot be put into service. On 22 May 2015, 23 trams were identified as having blocked sand-pipes.

[6] Drivers are required to test the sand dispensers prior to taking the trams out. If the sand-pipes are blocked they can be unblocked by banging on the pipe or on the bracket holding the pipe. If the pipe does not unblock then the tram is referred to maintenance.

[7] It is not contested that due to his is injury Mr Smith was not required to unblock sand-pipes. What is disputed is whether Mr Smith gave other tram drivers an instruction not to unblock the sand-pipes.

Mr Laurence Smith’s evidence

[8] On 22 May 2015, the tram allocated to Mr Smith had blocked sand-pipes and he reported this to the Depot Starter, Mr Don Laben. He was then allocated another tram which also had blocked sand-pipes and he reported this to Mr Laben. On the third occasion that Mr Smith returned to the Depot Starter’s office there were other drivers present as the sand-pipes in their trams were also blocked.¹

[9] Mr Smith said he asked Mr Laben if he wanted him to check the rest of the trams to see how many of them had blocked sand-pipes. Mr Laben agreed. Another tram driver Mr Brenton Whittaker agreed to help him. They found that 23 trams had blocked sand-pipes.²

[10] Mr Smith said that he spoke to a number of train drivers and told them that he could not tap sand-pipes due to WorkCover injuries and restrictions. He denied instructing tram drivers not to tap the sand-pipes to clear the blocked pipes.³ In cross examination, he said he only told one driver that he could not tap sand-pipes.⁴ He also said he did not mention WorkCover, he only said he could not tap the sand-pipes due to his spinal injury.⁵ He said he only spoke to three drivers about the sand-pipes namely Mr Whittaker, Mr Adolph Pereira and Mr James Schumacher.⁶ He said he spoke to Mr Jason Man and possibly Ms Suzanne Chavasse but not about tapping sand-pipes.

[11] In his reply statement, Mr Smith denied giving any instruction to Mr Pereira. He said he spoke to Mr Pereira when he was compiling the list. He said he saw Mr Pereira with a point bar and he asked him “what are you doing”. Mr Pereira said to him “don’t we do this anymore”. He replied by saying “well, I don’t, because I’ve just come back from spinal surgery.”⁷

[12] In his reply statement, Mr Smith denied giving any instruction to Mr Man or any other driver not to attempt to unblock sand-pipes. He said that he was checking the trams to compile the list and he passed Mr Man who was next to a tram. Mr Man told him that his tram had blocked sand-pipes. He said to Mr Man something like “it’s on the list”. He said he did not say anything else to Mr Man.⁸

[13] In his reply statement Mr Smith said he saw Ms Chavasse when he was checking the trams. He said that Mr Whittaker told Ms Chavasse that “you shouldn’t be tapping the pipes because, if you get injured doing it, I’m not sure you would be covered by Yarra Trams as it is not part of your job.” Mr Smith said he did not tell Ms Chavasse not to unblock the sand-pipes.⁹

[14] Mr Smith said that he had placed a notice on the noticeboard in December 2014. That notice said:

“If a tram has blocked sand-pipes it stays in the shed. It is not your job to clear them report it don’t fix it!! If a tram is faulty in the shed it stays in the shed till it is fixed.

No driver is to enter the pits!!

Management want all rules followed to the letter!! So fully support them and DO IT!!”¹⁰

[15] Mr Smith was not spoken to about this notice.

[16] In his reply statement, Mr Smith said he had a clear recollection of not telling anyone not to tap the pipes “because [he] was told at an executive committee meeting with Phil Altieri, John Anderson and Mark Teasedale of the RTBU, sometime after posting the notice five or six months earlier, that delegates were not to give any form of instruction to members that was not authorised because that might be used by Yarra Trams to get 418 orders against the RTBU.”¹¹

[17] Mr Smith gave evidence that he raised his concerns with Mr Laben, the Depot Starter, about his unsafe work practices when he tried to unblock the sand-pipes. Mr Smith alleged that Mr Laben had gone into the maintenance pit and instructed Mr Whittaker to drive the tram over the top of the pit and over the top of Mr Laben. This was so Mr Laben could have better access to the sand-pipes. Mr Whittaker originally refused to do as he was told but Mr Laben insisted. Mr Smith said Mr Laben breached safety protocols.

Mr Dennis Auld’s evidence

[18] Mr Auld¹² gave evidence that he saw Mr Tarik Sheikh take a photo of the noticeboard on 10 December 2015. He then took a photo of the notice board and sent it to Mr Smith. In cross examination Mr Auld denied that the image Mr Smith exhibited was the image he took a photo of.¹³ Mr Auld did not have a copy of the message because he had lost his phone.

[19] However Mr Smith did have a copy and the text message received from Mr Auld. It said that Mr Sheikh had just taken a photo of the noticeboard. Mr Smith asked Mr Auld to take a photo and send it to him and Mr Auld sent a photo which was the photo exhibited by Mr Smith.¹⁴

[20] While Mr Auld’s evidence was entirely unclear, I accept that he sent Mr Smith a photo of the whiteboard notice that he saw Mr Sheikh take a photo of.

Mr Whittaker’s evidence

[21] Mr Whittaker 15 gave evidence that he did not attempt to clear sand-pipes due to his shoulder injury.¹⁶ On 22 May 2015, Mr Whitaker was allocated to trams but both had blocked sand-pipes.¹⁷ Mr Whittaker agrees that he and Mr Smith volunteered to check the trams.¹⁸ It was his evidence that Mr Pereira was going to drive off in a tram which had blocked sand-pipes and while he did not hear what Mr Smith said, Mr Smith told him that he told Mr Pereira that he had checked the trams and the sand-pipes were blocked.¹⁹

[22] Mr Whitaker said he told drivers that they should not take the trams out without checking for blocked sand-pipes and that they should not use the point bar as it was unsafe.²⁰ Mr Whitaker did not in his witness statement make any reference to telling Ms Chavasse not to unblock the sand-pipes.

[23] Mr Whittaker said that Mr Laben directed him to drive a tram forward over the maintenance pits when he was in the pit. He said he thought this was unsafe but he did as he was told because Mr Laben was the most senior person at the Depot.²¹

[24] Mr Whittaker’s employment with Yarra Trams had been terminated prior to him giving evidence. Mr Whittaker’s evidence about what Mr Smith said to Mr Pereira is not consistent with Mr Smith’s evidence. Mr Smith did not give evidence that Mr Pereira was about to drive off with blocked sand-pipes when he spoke to him. Nor did Mr Pereira give this evidence. Mr Whittaker, whose evidence was filed after Yarra Trams filed its evidence, did not give evidence that he spoke to Ms Chavasse nor did he mention the conversation Mr Smith recalled in his witness statement.

[25] Mr Smith told Yarra Trams that Mr Whittaker had been with him the entire time he was checking trams and he could back up what he was saying.²² Mr Sheik’s report summarised Mr Whittaker’s statement at the time. Mr Whittaker did not advise Mr Sheik of any of the matters set out in his witness statement when he was interviewed.

[26] In his interview with Yarra Trams Mr Whittaker told Mr Sheikh that he had not told anyone that he wasn’t unblocking sand-pipes due to union rules and regulations.²³ Mr Whittaker in is witness statement said he denied telling anyone not to unblock sand-pipes. Yet Mr Smith says he heard Mr Whittaker telling Ms Chavasse that she shouldn’t be tapping sand-pipes.

Mr Adolf Pereira’s evidence

[27] Mr Pereira’s witness statement²⁴ adopted the witness statement he had given to Yarra Trams.

[28] Mr Pereira gave evidence that when he went to his allocated tram he saw Mr Smith and Mr Whittaker in the shed. He checked his tram and found that the sand-pipes were blocked.²⁵

[29] Mr Pereira had a point bar in his hand and was just about to tap the sand-pipes and saw wet sand drop onto the ground. Mr Pereira said that Mr Smith said to him “don’t do that, it’s not your job.” Mr Pereira gave evidence that other drivers heard Mr Smith say not to tap the sand-pipes but he didn’t know their names.²⁶

[30] In cross examination Mr Pereira said he did not say Mr Whittaker was present.²⁷

[31] In cross examination Mr Pereira said that Mr Smith said “don’t tap.”²⁸ He further said Mr Smith said “don’t tap, it’s not your job”.²⁹ Mr Pereira denied that Mr Smith said to him “I don’t tap” or “I don’t because I’ve just come back from spinal injury”.³⁰

[32] Mr Pereira said he did what Mr Smith told him because he is the delegate.³¹

[33] Mr Pereira said did not hear Mr Smith speak to any other drivers³² and he denied telling Mr Sheikh that Mr Smith had told other drivers not to tap.³³ He agreed that that part of his witness statement is inaccurate.³⁴ He initially said there was a rumour³⁵ that Mr Smith said not to tap the sand-pipes and he subsequently said a woman spoke to him on the day and told him Mr Smith had said not to unblock the sand-pipes.³⁶

[34] I did not find Mr Pereira’s evidence convincing. He appeared to have no direct recollection of what occurred apart from his evidence that Mr Smith told him not to tap the sand-pipes. Despite his sworn evidence, that the record of interview attached to his witness statement were accurate, he denied naming Mr Whittaker³⁷ and he denied that any other drivers had told him that Mr Smith had told them not to tap sand-pipes. He said he did not hear Mr Smith tell any other drivers not to tap sand-pipes and then changed his evidence again. Yet the record of interview includes both a reference to Mr Whittaker and a reference to other drivers saying that Mr Smith told them not to tap the sand-pipes. I accept that some of Mr Pereira’s confusion arose from the difficulties that all witnesses face in giving evidence. I also accept that he was confused when he gave evidence that he spoke to no drivers on that morning when he clearly spoke to Mr Smith. However I do not accept that this was the reason for the inconsistency between his evidence at the hearing and the record of interview.

[35] It was submitted that I should give greater weight to the statements made by Mr Pereira when he was initially interviewed. However given Mr Pereira himself has given evidence that the statement given at the time contains inaccuracies, it is difficult to afford that statement more weight than his evidence before the Commission. I am required to make findings based on the evidence before me.

[36] On the balance of probabilities I am unable to conclude that Mr Smith directed Mr Pereira not to tap the sand-pipes.

Mr Jason Man’s evidence

[37] Mr Man’s evidence in chief³⁸, like Mr Pereira, adopted the witness statement he gave to Yarra Trams.

[38] It was his evidence that when he went to check the tram he had been allocated that morning, it had been removed from the system. He asked Mr Laben what tram he was to take and Mr Laben didn’t know because of the sand-pipe issues. He then allocated Mr Man a further tram. Mr Man went to check his tram and noticed that one sand-pipe was blocked. He then tapped the sand-pipes which unblocked the sand-pipes. He then checked the other end of the tram but no sand came out of the sand-pipes. Mr Smith was in the tram that was parked in front of Mr Man’s tram and he checked both ends of Jason’s tram and told him the tram should not run out.

[39] Mr Man saw Mr Laben tapping sand-pipes on the trams. He then went back into the foyer and saw Mr Whittaker and Mr Smith with a list of trams.

[40] Mr Man said that Mr Smith and Mr Whittaker told him not to run the trams out as they were not safe. Mr Sheikh asked him if anyone said not to unblock the sand-pipes and Mr Man said “Laurie said this. Brenton didn’t tap the sand-pipes. Brenton said these trams were useless for the rest of the day.” He was then asked if he heard anyone tell him not to unblock sand-pipes and he said “Laurie, he said don’t tap sand-pipes.” When asked what he did as a result he said he “didn’t have a tram to tap. [He] had already done this.” He subsequently confirmed that Mr Smith told him not to tap the sand-pipes.³⁹

[41] In examination in chief Mr Man accepted that he was not sure if Mr Whitaker and Mr Smith had a list of trams, he just knew they had a piece of paper.⁴⁰

[42] In cross examination Mr Man could not recall if he had been allocated a tram at the time he said Mr Smith told him not to tap the pipes.⁴¹

[43] I asked Mr Man to tell me what happened that morning. He said the tram allocated to him was not available. He asked the Starter for another tram and he said the Starter did not know what was going on and was flustered. He left him and he ended up moving trams just to find a tram that was roadworthy. The Starter then allocated him a tram. He said he did not recall when the conversation he had with Mr Smith occurred.⁴²

[44] He said he recalled Mr Smith being in the vicinity of the tram in front of his tram but he cannot recall which end of the tram he tapped. He could not recall Mr Smith checking his tram. He recalled Mr Smith saying words to the effect that the tram shouldn’t run out.⁴³ He did recall Mr Smith mentioning it being on a list but he did not know what he meant by the list.⁴⁴

[45] Mr Man could recall Mr Whittaker saying something along the lines that the trams were useless.⁴⁵ He could not recall him saying anything about OH&S issues⁴⁶ or about not being able to check sand-pipes because of his injury.⁴⁷

[46] Mr Man later said he could not recall Mr Smith directing him to not tap the sand-pipes but he heard it in passing conversation from him. He did not know who Mr Smith was talking to.⁴⁸

[47] It was put to Mr Man that when he told Mr Sheik that Mr Smith told him not to unblock the sand-pipes that he was mistaken. Mr Man said “Quite possibly, I don’t remember that day, with the interview that day I might have been pretty highly pressurised at the time. May not be thinking correctly.”⁴⁹

[48] Mr Man’s evidence was very confused. He contradicted the statement given to Mr Sheikh. Mr Man did not want to give evidence and was unresponsive in cross examination. While some of that arose from the nature of cross examination it also reflected Mr Man’s clear reluctance to give evidence at all.

[49] I could not be satisfied that Mr Smith gave Mr Man any direction not to tap the sand-pipes.

Ms Suzanne Chavasse’s evidence

[50] Ms Chavasse’s evidence in chief⁵⁰, like Mr Pereira, adopted the witness statement she gave to Yarra Trams.

[51] She said when she arrived at work she checked one end of her tram and it was OK. She then went to the other end and noticed that the sand was not dropping. She attempted to tap the sand-pipe with the point bar and Mr Smith approached her. He told her not to tap the sand bar because she would not be supported by Yarra Trams management if she hurt herself. Mr Smith told her that it was not her job to bang the sand-pipes. Ms Chavasse saw Mr Smith take photos of Mr Laben taping sand-pipes and Mr Laben came over to her and tapped her sand-pipe with a point bar and it cleared the sand-pipe. Ms Chavasse said she had been trained to tap sand-pipes.

[52] Ms Chavasse said that when she had this conversation with Mr Smith no-one else was present.⁵¹ Ms Chavasse denied that Mr Whittaker said the words she ascribed to Mr Smith.⁵² Ms Chavasse does not recall Mr Smith saying anything to her about not being able to tap the sand-pipes due to his WorkCover injury.⁵³

[53] Ms Chavasse did not recall any other conversation of any significance with Mr Smith that morning and when she had the conversation she recounted Mr Whittaker was not nearby.⁵⁴

[54] She had a vague memory of speaking to Mr Whittaker but he gave her no direction about sand-pipes.⁵⁵

[55] Ms Chavasse rejected the proposition that there was not much difference between “don’t do that” and “I don’t do that”.⁵⁶

[56] Ms Chavasse conceded that she could have had conversations with other drivers but she didn’t recall them. She said the reason she remembers the conversation with Mr Smith was because it didn’t make sense to her⁵⁷ as she knew he had been away from work and she thought he was covered.⁵⁸

[57] In answer to questions put to her she said Mr Smith said to her “you shouldn’t do that because you’re not sure that you will be covered by Yarra Trams.”⁵⁹

[58] Ms Chavasse rejected the proposition that it was Mr Whittaker who spoke to her.⁶⁰

[59] While I am satisfied that it was Mr Smith and not Mr Whittaker who spoke to Ms Chavasse, I am unable to conclude that Mr Smith’s statement to Ms Chavasse was a direction to not unblock the sand-pipes. Mr Smith gave Ms Chavasse advice. While that advice was wrong it was not a direction not to tap the sand-pipes.

Mr Don Laben’s evidence

[60] Mr Laben’s evidence in chief⁶¹ was like the other statements given to Yarra Trams as part of the investigation.

[61] Mr Laben was the Starter on the morning in question. He was advised by a number of tram drivers that their sand-pipes were blocked. He was advised by Mr Smith that he would not tap sand-pipes. Mr Laben told Mr Sheikh that there was a notice about this on the union notice board advising drivers not to tap sand-pipes. Mr Laben told the investigator that Mr Smith was telling drivers not to tap the sand-pipes He said Mr Smith told Ms Chavasse not to tap the sand-pipes. Mr Whittaker also told him that he could not tap sand-pipes.

[62] Mr Laben went into the pits to unblock the sand-pipes on a tram. Mr Smith told him he was not allowed to go into the pits but he ignored him.

[63] In cross examination, Mr Laben accepted that he did not hear Mr Smith have any conversations with other drivers.⁶² It was his evidence that drivers told him that Mr Smith had told them not to go out because they had blocked sand-pipes.⁶³ It was his evidence that Mr Pereira told him that Mr Smith had conversation with him about whether “they or he would unblock sand-pipes.”⁶⁴ Mr Laben said that another driver was told by Mr Smith not to go out because the pipes were blocked.⁶⁵

[64] Mr Laben accepted that he went into the pit and directed Mr Whittaker to drive a tram over the pit and that this was done without isolating the tram.⁶⁶ Mr Laben did not accept that this was a breach of the rules.⁶⁷

[65] Mr Laben’s evidence about what Mr Smith told the other drivers was contradictory. On the one hand he said that Mr Smith told drivers not to unblock the sand-pipes and on the other had he said Mr Smith told them not to take the trams out because they had blocked sand-pipes.⁶⁸

[66] Mr Laben did not tell Mr Smith to stop telling drivers to not take trams out.⁶⁹

[67] I am unable to conclude on the basis of Mr Laben’s evidence that Mr Smith directed tram drivers not to unblock sand-pipes.

Mr Tarik Sheikh’s evidence

[68] Mr Sheikh was the Manager - Kew Lines. He conducted an inquiry into what occurred in May 2015.

[69] Mr Sheikh said he was unaware of the notice about sand-pipes placed by Mr Smith on the noticeboard in December 2014.⁷⁰ He said he was told by an unknown person that the notice had been deleted after 1-2 days. He said Mr Smith’s instruction on the noticeboard was not consistent with the well-established practice regarding unblocking sand-pipes.⁷¹ He said he would have been concerned if he saw it.⁷²

[70] Mr Sheikh was not present at the depot when the incident occurred. He said that Mr Pereira, Mr Man, and Ms Chavasse all told him that Mr Smith had told them not to tap the sand-pipes because it was not their job. Mr Woolley told him he had heard Mr Smith say this and Mr Laben said he was aware that Mr Smith had given this instruction.⁷³

[71] Mr Sheikh advised that an investigation was conducted into the allegations made by Mr Smith about Mr Laben’s conduct and it was determined that his “conduct was a result of him trying to get the trams back into service and was not inconsistent with any formal instructions given to him.”⁷⁴

[72] Mr Smith was suspended on full pay pending the outcome of the investigation. Mr Sheikh said he told Mr Smith that the investigation was about allegations that he had instructed trams drivers not to unblock sand-pipes.⁷⁵

The meetings

[73] A meeting was then on 2 June 2015. Mr Smith attended with his representative.

[74] Notes of the meeting were taken⁷⁶ on behalf of Yarra Trams. Notes were also taken on behalf of Mr Smith.⁷⁷ These notes were not transcripts and while not identical the records did not differ on the key facts.

[75] Mr Sheikh told Mr Smith that it was alleged that he had instructed drivers not to unblock sand-pipes. Mr Smith denied the allegation. Mr Smith said that one driver mentioned it but he only spoke to three people - Mr Laben, Mr Whittaker, and Mr Pereira. He said Mr Schumacher was there with blocked pipes. He said the only one he told that he did not unblock sand-pipes was Mr Pereira. He said it was more a comment than an instruction. Mr Smith was not told who had made the allegations. He told Mr Sheikh that he had been told by a senior mechanic at Kew not to knock the sand-pipes because it put them out of alignment.

[76] Mr Smith was told that he had breached the rule “unauthorised instructions to others.” He said again he had spoken to two drivers and the starter. He answered Mr Pereira’s question “do we still tap the sand-pipes” with “I didn’t do it.” He said he did not tell anyone not to tap the pipes. He went around with Mr Whittaker and tested the sand-pipes.

[77] Mr Smith was told that there was CCTV footage which would be part of the investigation.

[78] Mr Smith’s record of the meeting noted his advice that Mr Whittaker had been present with Mr Smith the whole time and was therefore a witness who would confirm that Mr Smith did not give any instruction. Those notes record that Mr Smith said he spoke to two drivers and the Starter. Mr Smith said he thought the drivers misinterpreted what he said.

[79] On 18 June 2015, the RTBU wrote to Yarra Trams alleging that Mr Smith had been denied natural justice and procedural fairness because he had not been provided with copy of the record of the interview on 2 June 2015.⁷⁸ Yarra Trams denied the allegation and advised that the investigation was still on foot.⁷⁹

[80] A further meeting was held on 13 July 2015. Again Mr Smith was represented by his union representative.

[81] Again notes of the meeting were taken on behalf of Yarra Trams⁸⁰ and Mr Smith⁸¹. That meeting was held to discuss the findings of Mr Sheikh’s investigation. Mr Smith was provided with a copy of the report albeit with the names redacted. He was told the allegations were substantiated and asked to respond. He was told that his actions had resulted in Yarra Trams being fined for trams being late. He was reminded of his previous written warning. Mr Sheikh advised that it was his view that termination of employment was warranted and that he had failed to be truthful in the investigation.

[82] A further meeting was held on 14 September 2015. Again Mr Smith was represented by his union. Notes of the meeting were taken on behalf of Yarra Trams⁸² and Mr Smith.⁸³ Mr Sheikh was not at this meeting.

[83] Mr Smith was told that Yarra Trams was satisfied he had given the instructions. This was disputed by Mr Smith’s representative. Concerns were raised about the investigation. As a result further inquiries were made.

[84] A further meeting was held on 7 October 2015. Again Mr Smith was represented by his union. Notes of the meeting were taken by Yarra Trams⁸⁴ and Mr Smith.⁸⁵

[85] Mr Smith was told that a review of the witness evidence had occurred and they had concluded that Mr Smith had instructed drivers not to unblock sand-pipes and he had been dishonest in the investigation on several occasions. It was said he had been untrustful (sic) in the course of the investigation. Mr Smith was provided with the names of the witnesses.

[86] On this occasion Mr Smith denied speaking to Ms Chavasse as she had not been on site that day.

[87] Mr Smith’s representative challenged the investigation process.

[88] Mr Smith was advised that the decision had been made to terminate his employment.

Ms Jennie Mundie’s evidence

[89] Ms Mundie was tasked by Yarra Trams with re-interviewing the witnesses. She provided each witness with a copy of their record of interview and she asked them if there were any changes they wished to make and she recorded any changes.

Mr Jim Armstrong’s evidence

[90] Mr Armstrong 86 was responsible for tram maintenance at Kew and Camberwell. He had sent an email⁸⁷ to Mr Sheikh on 25 May 2015 setting out what had happened on 22 May 2015. He was advised that there were trams with blocked sand-pipes impacting routes 70 and 75. He went to Camberwell and was provided with a list by Mr Laben which showed 22 trams had blocked sand-pipes. Mr Laben told Mr Armstrong that the union delegate had checked the trams and told the drivers not to tap the sand-pipes. Mr Laben told Mr Armstrong that the delegate had stopped him from attempting to unblock sand-pipes.

[91] He said 16 trams were handed over to maintenance and all but two trams had the blockages cleared by tapping them with a point bar.

[92] Mr Armstrong said it was normal practice for blocked sand-pipes to be tapped so that the wet sand drops out and the system starts working again.⁸⁸ Mr Armstrong said he never experienced advice about such a heavy impact about rolling stock availability.⁸⁹

The evidence generally

[93] Yarra Trams submitted that I should prefer the evidence of its witnesses over Mr Smith and Mr Whittaker. It submitted that Mr Smith had changed his story when he was presented with new evidence. For example, it was submitted that Mr Smith initially said he spoke to three people on the day and then changed this to four people. He then changed this to he spoke to four people about sand-pipes but spoke to others about other matters. He denied speaking to Ms Chavasse and said she had not been at work that day. His evidence about Mr Whittaker telling Ms Chavasse not to unblock sand-pipes was only mentioned for the first time after he received her statement.

[94] In assessing the witness evidence, I have had regard to the fact that these events occurred a significant time ago and it is not surprising that people’s memory of what occurred has faded. I also accept that individuals can have quite different recollections of the same event without any of them being dishonest.

[95] In assessing the reliability of the statements given during the investigation I have had regard to the investigation process and the fact that the witnesses were not provided with a copy of their statements to verify until Ms Mundie provided them with a copy in September 2015, some four months later.

[96] While Mr Sheikh was not required to conduct his investigation to the standards required of a professional investigator, I have some concerns about the way the questions were put to witnesses. When Mr Man was asked what happened on 22 May 2015 he said that Mr Smith had told him that the tram should not run out after he had checked the pipes and they were blocked. When prompted by Mr Sheikh he said that he was told by Mr Smith not to run out the trams because they were not safe. Only when specifically asked if anyone had told him not to unblock sand-pipes did Mr Man say Mr Smith told him not to tap the pipes.⁹⁰ This evidence would have been more reliable if Mr Sheikh had asked the witness what was said rather than put what he thought was said to the witness. There is no way I can tell from the evidence in what context the statement was alleged to have been made.

[97] I have also given consideration to Mr Smith’s evidence about why had a clear recollection of not giving a direction namely the advice given to him by the RTBU. To support his claim that this was not a recent invention Mr Smith noted that Yarra Trams notes of the meeting on 14 September 2015 makes a reference to 417 orders. Yet in cross examination he said he had no idea why there was a reference to 417.⁹¹ The notes do not record Mr Smith advising Yarra Trams of the explanation provided in his second witness statement. There was no record of Mr Smith relying on this as an explanation in the notes of that meeting taken on behalf of Mr Smith. Only Mr Whittaker refers to Mr Smith mentioning this to him and Mr Smith does not say he told Mr Whittaker this.

[98] I have also given consideration to the fact that Mr Smith made no reference to speaking to Mr Man in his first witness statement or in his interviews with Yarra Trams.

[99] It was put that Mr Smith had no obligation to put forward his response to the witness evidence relied upon by Yarra Trams in the investigation or in his first witness statement. But by the time Mr Smith made his first witness statement he knew from the investigation that Yarra Trams alleged that he had conversations with Mr Man, Ms Chavasse and Mr Pereira yet he gave no evidence about those individuals until he read their witness statements. Further, he had not given his version of his conversation with Mr Man or as he alleged Mr Whittaker’s conversation with Ms Chavasse at any time during the investigation. Even if I accepted Mr Smith may have been reluctant to name Mr Whittaker during the investigation, there was nothing to prevent him saying he overheard another driver saying the words alleged.

[100] While Mr Smith is entitled to put his evidence to the Commission as he sees fit, his delay in detailing his recollection of these conversations is relevant to his credibility. Mr Smith was obliged to cooperate with the Yarra Trams’ investigation. While I accept that he may have forgotten the details of some conversations that he can on 8 February 2016 clearly remember a conversation between Mr Whittaker and Ms Chavasse which occurred on 22 May 2015 but had not been able to recall it earlier, goes to his credibility. That he can on 8 February 2016 remember a conversation with Mr Man about his blocked sand-pipes on 22 May 2015 that he had not been able to recall earlier goes to his credibility. That he provides as explanation to the Commission as to why he would not give a direction to drivers which he had not provided to Yarra Trams goes to his credibility.

[101] I do not accept all of Yarra Trams’ characterisation of Mr Smith’s responses in the investigation. For example, Mr Sheikh said that Mr Smith had said at the first investigation meeting that he had only spoken to three people.⁹² Yet the notes attached to his witness statement record this “I only spoke to 3 people Don (Depot Starter), Scary (Brenton Whittaker), Adolph (Pereira). (James) Schumacher was there with blocked pipes.” In the context of being asked about giving instructions to people about not unblocking sand-pipes it is not surprising that Mr Smith did not mention all the people he may have spoken to that morning.⁹³

[102] However I do accept its characterisation of his evidence in relation to Ms Chavasse. When on 13 July 2015 he was provided with a summary of Ms Chavasse’s evidence, albeit with her name redacted, Mr Smith did not provide any explanation about what he was alleged to have said by Mr Whittaker. Further, when provided with the un-redacted statements he said he did not talk to Ms Chavasse as she was not on site at the time.

[103] Mr Smith categorically before me denied speaking to Ms Chavasse about sand-pipes and said that it was Mr Whittaker. He did not give this explanation to Mr Sheikh. Ms Chavasse was not one of the persons Mr Smith said he spoke to on the day.⁹⁴ On one occasion he denied speaking to Ms Chavasse at all because she was not at work that day. Mr Smith did not tell Mr Sheikh that he heard Mr Whittaker speak to Ms Chavasse about unblocking sand-pipes. Only after Ms Chavasse put in a witness statement did Mr Smith recall the conversation he said occurred between Mr Whittaker and Ms Chavasse.

[104] Mr Whittaker’s evidence in this matter is more expansive than what Mr Sheikh records him as saying. Mr Whittaker for the first time admits telling other drivers that tapping sand-pipes is an OH&S issue. His evidence in relation to critical matters is inconclusive. He did not give evidence that he was with Mr Smith the whole time as Mr Smith suggested in his Yarra Trams interview. At its highest he says he can’t recall seeing Mr Smith talking to anyone while he was outside the office.⁹⁵ He give evidence that Mr Smith raised his concern about any comment by him being seen as unlawful industrial action but Mr Smith did not give any evidence that he made this comment to Mr Whittaker. Mr Whittaker no longer works for Yarra Trams having recently dismissed. I have given little weight to Mr Whittaker’s evidence because he did not witness any of the conversations Mr Smith had with Mr Pereira, Ms Chavasse or Mr Man.

[105] I found Ms Chavasse to be a convincing witness. It was her consistent evidence that it was Mr Smith not Mr Whittaker who spoke to her. While she used different words to recall what was said to her, this was not surprising as the events occurred a long time ago. However on the key matter her evidence was clear. I prefer her evidence to that of Mr Smith.

[106] I have considered whether I should prefer Mr Man’s evidence to Mr Smith. Despite the matters set out above Mr Man’s evidence was so contradictory that I am not satisfied that I should prefer his evidence over Mr Smith’s evidence.

[107] I have considered whether Mr Smith’s diminished credibility is sufficient for me to prefer Mr Pereira’s evidence to Mr Smith’s evidence. I view Mr Smith’s evidence about his conversation with Mr Pereira with some considerable caution. However I cannot be satisfied that given the contradictions in Mr Pereira’s evidence that he may not have misunderstood what Mr Smith said to him.

Was the termination of employment harsh, unjust or unreasonable?

[108] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[109] Yarra Trams dismissed Mr Smith because he “issued an unauthorised instruction to other tram drivers …..that they should not attempt to unblock sand-pipes.”

[110] He was accused of directing tram drivers not to unblock sand-pipes.

[111] I asked Mr Matthew Follett what was an instruction⁹⁶ and how saying to someone not to do something is an instruction and how it crossed over into being misconduct. Mr Follett said that it was misconduct “because it amounts to the organisation of industrial action and that’s the organisation. Now that could include anything which is aiding, counselling, procuring, being involved in or organising.”⁹⁷

[112] The Macquarie Dictionary defines an instruction as “the act of furnishing with authoritative directions.” It defines direct as “1. to guide with advice; regulate the course of; conduct; manage; control.2. to give authoritative instructions to; command; order or ordain (something).”

[113] Mr Follett submitted that I should have regard to the totality of what happened on that day. Of the twenty trams, only two needed maintenance. The rest were resolved by tapping. He submitted that I needed to ask why on this one day did drivers stop tapping pipes and the answer was because Mr Smith told them not to.⁹⁸ He submitted that had Mr Smith said he told a number that he didn’t do it then he might be able to argue that there was some confusion but Mr Smith said he only said that to one driver. He submitted that it was not conceivable that this conversation led to the events of that morning.⁹⁹

[114] I am not satisfied that Mr Smith instructed employees not to unblock sand-pipes. I am satisfied that he told Ms Chavasse “you shouldn’t do that because you’re not sure that you will be covered by Yarra Trams.” However I am not satisfied that this was an instruction or a direction to Ms Chavasse. I have found this to be a form of advice rather than an instruction.

[115] I am not satisfied on the evidence before the Commission that Mr Smith gave any instruction to any other driver not to unblock sand-pipes.

[116] Yarra Trams was aware since December 2014, through Mr Sheikh, that Mr Smith was of the view that tram drivers should not unblock sand-pipes. I accept the evidence that Mr Sheikh did take a photo of the notice Mr Smith had placed on the noticeboard and he did not take any steps to contradict Mr Smith’s direction to employees that it was not their job to fix blocked sand-pipes. While I accept that Mr Sheikh now has no memory of taking this photograph, it is surprising that no action was taken at the time to disabuse Mr Smith of his views.

[117] Further it was clear from Mr Laben’s evidence that he was aware of the notice as he told Mr Sheikh about it as part of his interview.¹⁰⁰

[118] It is also relevant that there was no written procedure or policy in place prior to this incident regarding unblocking sand-pipes.¹⁰¹ Such a procedure was only put in place after a complaint was made to WorkSafe. An inspection took place and an improvement notice was issued. That report noted:

“Discussions were had with Tarik Sheikh, Luke Van Parreren and Ian Gilbert to review the current practice and to provide safe systems of work in relation to unblocking sand-pipes on A-Class and B-Class trams. Modifications to the existing work practice may include a redesign of the bar or metal rod to eliminate awkward postures such as squatting or kneeling, and eliminate guessing the location of the bar connected to the sand-pipes. Under section 111(1) of the Occupational Health and Safety Act 2004, I issued Improvement Notice V01020901151L/111-01.¹⁰²

[119] I accept that it has been the custom and practice for tram drivers to tap sand-pipes and this was not contradicted by Mr Smith. I do not accept Mr Sheikh’s characterisation of the Improvement Notice issued by WorkSafe.¹⁰³ However I note that a documented procedure was put in place and the commitment by Yarra Trams that they would provide training to drivers before the end of 2015 was sufficient for Yarra Trams to have been deemed compliant with the initial improvement notice.¹⁰⁴ I note in passing the evidence of Yarra Trams that training has not yet been completed at time of hearing.¹⁰⁵

[120] Despite Yarra Trams’ submissions, I am not prepared to infer that the delay in the trams being cleared to leave the depot was caused by conduct of Mr Smith. I accept that trams did not go out because they had blocked sand-pipes however that was not inconsistent with Yarra Trams’ policy that the sand-pipes must be operational before the tram leaves the depot. It is clear that Mr Smith and Mr Whittaker prepared a list for Mr Laben so that he was aware of the trams which had blocked sand-pipes. There is no evidence of any drivers apart from Mr Smith and Mr Whittaker that were not unblocking sand-pipes. Only Mr Pereira gave evidence that he stopped tapping sand-pipes because he said Mr Smith told him not to and I have already addressed Mr Pereira’s evidence.

[121] It was put that I could find there was a valid reason for the termination of Mr Smith’s employment because he was dishonest in the investigation. I am not satisfied that Mr Smith was dishonest in the interviews. The investigation process took a significant period of time. Further it is not surprising that Mr Smith could not recall all the people he spoke to or all the events that occurred on 22 May 2015. However, Mr Smith did not volunteer any information during the investigation and sought to side track the investigation to matters he considered more important. What he did not do was clearly describe what he did and he heard on that day. However in part this was because of the way the investigation was conducted. Instead of asking Mr Smith what he recalled happened on 22 May 2015 he was asked to respond to the allegation that he had instructed drivers not to unblock sand-pipes.

[122] I am not satisfied that Mr Smith lied during the interviews or was dishonest during the interviews.

[123] I am therefore not satisfied that there was a valid reason for the termination of Mr Smith’s employment.

s387(b) whether Mr Smith was notified of that reason;

[124] It is clear that if there was no valid reason then Mr Smith could not have been notified of it. However it is clear that Mr Smith at all times was aware of the allegations against him. Further he was aware that Yarra Trams had formed the view that he had not been honest in the investigation.

s387(c) whether Mr Smith was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[125] Mr Smith was given an opportunity to respond the allegations. I do not accept the submission that he was not provided with a genuine opportunity to respond. Mr Smith complained that he was not provided with the names of the employees who had given evidence nor the details of what he was alleged to have said nor the records of interviews. Mr Smith in this matter categorically denied telling anyone not to unblock sand-pipes. He said he only spoke to Mr Pereira about unblocking sand-pipes. Further Mr Smith was provided with the details of what he was alleged to have said without the names of the persons before the decision to terminate his employment was made. He maintained his denial. An employer is not always required to provide the names of the witnesses to the employee. The employee is entitled to be given sufficient details of the reasons to enable the employee to have a reasonable opportunity to respond. Mr Smith had such an opportunity.

s387(d) any unreasonable refusal by the employer to allow Mr Smith to have a support person present to assist at any discussions relating to dismissal;

[126] Mr Smith was at all times represented.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Smith had been warned about that unsatisfactory performance before the dismissal;

[127] The dismissal did not relate to Mr Smith’s performance.

s387(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;

[128] There were no submissions that this was a relevant criterion.

s387(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;

[129] There were no submissions that this was a relevant criterion.

s387(h) any other matters that the Fair Work Commission considers relevant.

[130] Mr Smith is 52 years of age and has four school aged children. He has a work related injury which restricts the work he can do. He had worked for Yarra Trams for seven years. He had only been subject to one disciplinary proceeding in mid 2014 for which he received a warning and was required to undergo some additional training.

Conclusion

[131] I find that the termination of Mr Smith’s employment was both unfair because he did not engage in conduct alleged and harsh given his personal circumstances.

Remedy

[132] Mr Smith is seeking reinstatement of his employment. Mr Sheikh gave evidence that “given Yarra Trams must be able to trust that its employees will act honestly and in the best interests of Yarra Trams and the general public at all times, and in light of the Applicant’s dishonesty during the investigation process and in this proceeding, I have no confidence that the Applicant could be entrusted to perform his role again. Quite aside from his dishonest responses during the investigation, the Applicant was far from forthcoming, was uncooperative and his story ebbed and flowed over the course of the investigation depending on what information the Respondent presented to him.”¹⁰⁶

[133] Had it not been for Mr Smith’s evidence in relation to Ms Chavasse, I would have had no difficulty in ordering Mr Smith’s reinstatement. However in light of my finding that I did not accept his evidence about his conversation with Ms Chavasse I have had to consider whether the submission of Yarra Trams, that the necessary relationship of trust and confidence no longer exists, is a reason not to reinstate Mr Smith.

[134] Mr Smith did not assist his cause by the approach he took to the interviews. However as I have said this was in part because of the way the incident was investigated. However Yarra Trams also relies upon what it said was Mr Smith’s dishonesty in this proceeding. I note of course that Mr Sheikh prepared his statement prior to Mr Smith filing his reply evidence. However he adopted it after Mr Smith had filed it and while he was cross examined on his allegation, that Mr Smith’s version of events had ebbed and flowed during the investigation¹⁰⁷, he was not cross-examined about this in relation to this allegation that this was true of his evidence in the proceeding. While I am not satisfied that Mr Smith’s attempt to shift the culpability to Mr Whittaker is such as to mean he should not be reinstated it does impact the consequential orders I am able to make.

[135] I am satisfied that the relationship of trust can be re-established. Apart from one other incident in 2014 for which Mr Smith was warned and provided with additional training, there was no evidence Mr Smith did not act in the best interests of Yarra Trams and the general public in the past. I am not satisfied he would not do so in the future.

[136] In making this decision I have had particular regard to Mr Smith’s personal circumstances. Given his age and disability I consider his employment prospects to be limited.

[137] However I do not consider that Mr Smith is entirely blameless in this matter. Had he been more open in the investigation, the matter may not have got to this point. Further his denial about his conversation with Ms Chavasse and his attempt to shift the culpability to Mr Whittaker is sufficient for me to decide that while I will order Mr Smith's continuity of employment to be maintained I will not order any payment of lost wages or that the period between the date of dismissal and his reinstatement counts towards his period of service.

[138] I therefore order that Mr Smith be reinstated. I further order that Mr Smith’s continuity of service be maintained.

DEPUTY PRESIDENT

Appearances:

R. Reitano for the Applicant.

M. Follett for the Respondent.

Hearing details:

2016.

Melbourne:

February 10, 11 and 12.

1 Exhibit A2 at [21]-[22]

2 Ibid at [23]-[25]

3 Ibid at [26]-[27]

4 Transcript PN 271-272

5 Ibid PN 277

6 Ibid PN 281

7 Exhibit A3 at [11]-[14]

8 Ibid at [15]-[19]

9 Ibid at [20]-[23]

10 Exhibit A2 at [16]

11 Exhibit A3 at [8]

12 Exhibit A1

13 Transcript PN 114

14 Ibid PN 336

15 Exhibit A4

16 Ibid at [9]

17 Ibid at [11]-[12]

18 Ibid at [22]-[23]

19 Ibid at [24]

20 Ibid at [26]

21 Ibid at [19]-[20]

22 Exhibit A2 at attachment LS4

23 Exhibit R10 at TS14

24 Exhibit R2

25 Exhibit R2 at attachment AP1

26 Ibid

27 Transcript PN 1037 and 1038

28 Ibid PN 1121 and 1124

29 Ibid PN 1161

30 Ibid PN 1135

31 Ibid PN 1167-1168

32 Ibid PN 1180-1181

33 Ibid PN 1186-1187, PN 1194-1196

34 Ibid PN 1202

35 Ibid PN 1240

36 Ibid PN 1272-1277

37 Ibid 1010

38 Exhibit R8

39 Exhibit R8 at JM1

40 Transcript PN 1946

41 Ibid PN 2064

42 Ibid PN 2089

43 Ibid PN 2091-2103

44 Ibid PN 2105

45 Ibid PN 2188

46 Ibid PN 2193

47 Ibid PN 2194

48 Ibid PN 2213-2217

49 Ibid PN 2247

50 Exhibit R6

51 Transcript PN 1650-1651

52 Ibid PN 1652

53 Ibid PN 1732

54 Ibid PN 1749-1752

55 Ibid PN 1756

56 Ibid PN 1839

57 Ibid PN 1858

58 Ibid PN 1859

59 Ibid PN 1866

60 Ibid PN 1872

61 Exhibit R9

62 Transcript PN 2298

63 Ibid PN 2335

64 Ibid PN 2302-2306

65 Ibid PN 2335

66 Ibid PN 2338-9

67 Ibid PN 2341

68 Ibid PN 2349-2350

69 Ibid PN 2407

70 Exhibit R10 at [13]

71 Ibid

72 Ibid

73 Ibid at [15]

74 Ibid at [17]

75 Ibid at TS6

76 Ibid at TS7

77 Exhibit A2 at LS4

78 Ibid at LS7

79 Exhibit R10 at TS9

80 Ibid at TS12

81 Exhibit A2 at LS14 and LS13

82 Exhibit R10 at TS15

83 Exhibit A2 at LS17

84 Exhibit R10 at TS16

85 Exhibit A2 at LS19

86 Exhibit R1

87 Ibid at attachment JA1

88 Transcript PN 904

89 Ibid PN 967-969

90 Exhibit R8 at JM1

91 Transcript PN 416 and PN 428

92 Exhibit R10 at [20] and TS7

93 Ibid at [26]

94 Ibid at TS16

95 Exhibit A4 at [29]

96 Transcript PN 3195

97 Ibid PN 3198

98 Ibid PN 3141

99 Ibid

100 Exhibit R9 at DL1

101 Exhibit R10 at [9]

102 Exhibit A2 at LS6

103 Exhibit R10 at [21]

104 Exhibit A2 at LS6

105 Transcript PN 2879

106 Exhibit R10 at [36] and [37]

107 Transcript PN 3004-3005

Printed by authority of the Commonwealth Government Printer

Laurence Smith v KDR Victoria Pty Ltd T/A Yarra Trams

[2016] FWC 1774

22 MARCH 2016

DECISION