Mark Andersen v Brookfield Rail Employment Pty Ltd

[2016] FWC 5142

[2016] FWC 5142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Andersen
v
Brookfield Rail Employment Pty Ltd
(U2015/9874)

COMMISSIONER WILLIAMS PERTH, 29 JULY 2016

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made under section 394 of the Fair Work Act 2009 (the Act) by Mr Mark Andersen (Mr Andersen of the applicant). The respondent is Brookfield Rail Employment Pty Ltd (Brookfield or the respondent).

[2] Mr Andersen was dismissed because he allegedly drove a Brookfield hi-rail vehicle (a vehicle that is capable of operating both on the road and on rails) around stationary vehicular traffic at boom gates and placed the vehicle onto the railway line whilst a train was approaching on the adjacent line. He then allegedly exited the vehicle on the side of the railway line on which the train was still passing. This action was viewed as a serious breach of safety procedures.

Factual findings

[3] Mr Andersen started working for Brookfield in October 2011. He was employed as a Perway Patroller.

[4] A Perway Patroller checks the rail line for any issues or faults. This is done by driving a hi-rail vehicle along the rail line. A hi-rail vehicle is a car that has been fitted out to travel both on road and rail.

[5] The process of taking the hi-rail vehicle off the road and onto the railway track is called “getting on track”. The reverse process is called “getting off track”.

[6] Mr Andersen’s evidence was the normal practice for Perway Patrollers to get on track and get off track is to do so at road-rail crossings which are fitted with boom gates. He says this is because it is the safest way for the hi-rail vehicle to make the transition between road and rail.

[7] His evidence was that Brookfield instruct their Perway Patrollers to get on track and get off track, where possible, at level crossings fitted with boom gates.

[8] There are two rail lines that run from Forrestfield to Northam. One line is called the “up main”, the other is called the “down main”. The up main and the down main run adjacent to each other.

[9] Any vehicle that is travelling from Northam to Forrestfield is normally on the up main.

[10] Any vehicle going in the opposite direction, from Forrestfield to Northam, is usually on the down main.

[11] In order to travel on a railway line, you first need to obtain permission from the Train Controller. The Train Controller is employed by Brookfield to manage the flow of traffic on Brookfield’s rail network. Once the Train Controller has given you permission to go on track, then you have authority to exclusively possess the section of track to which that permission relates.

[12] On 19 June 2015, Mr Andersen was driving a hi-rail vehicle from Northam to Forrestfield. He was travelling on the up main and had permission from the Train Controller to be on track.

[13] He got off track at the Farrall Road level crossing in Midland and checked over the hi-rail vehicle which had been making some unusual noises.

[14] After checking over the hi-rail vehicle he proposed to get back on track.

[15] Mr Andersen’s evidence was that a train was approaching the Farrall Road crossing. This caused the boom gates at the crossing to come down. The train was travelling on the down main. He says he still had permission to occupy the up main.

[16] While the boom gates were down Mr Andersen drove on the wrong side of the road, around the queue of cars held up by the boom gate, and manoeuvred the hi-rail vehicle in order to get back on track on the up main.

[17] The Train Driver, Mr Bingham and the Observer, Mr Thorpe in the oncoming train saw Mr Andersen’s hi-rail vehicle as he approached the level crossing and completed this manoeuvre. The manoeuvre was captured by the train’s cameras and recorded.

[18] Both Mr Bingham and Mr Thorpe were initially alarmed by Mr Andersen’s manoeuvre.

[19] Shortly afterwards they reported what they had witnessed to the Brookfield Train Controller.

[20] In due course Brookfield undertook an investigation.

[21] It is not disputed that Mr Andersen in his work was required to comply with the Westnet Rail Book of Rules. He had been trained in these rules and was familiar with them.

[22] As the applicant’s representative submits there are five factual matters that relevantly need to be determined by the Commission which are:

1. Did Mr Andersen drive the hi-rail vehicle on the wrong side of the road?

2. Was the flashing light on the hi-rail vehicle on while Mr Andersen was on tracking?

3. Did Mr Andersen on track while there was a train approaching on an adjacent line?

4. Did Mr Andersen’s hi-rail vehicle cross over the adjacent rail line?

5. Did Mr Andersen exit the hi-rail vehicle adjacent to the train while it was passing?

Did Mr Andersen drive the hi-rail vehicle on the wrong side of the road?

[23] There is no doubt that Mr Andersen did drive on the wrong side of the road in order to manoeuvre the hi-rail vehicle around the stationary cars that were stopped by the lowered boom gate.

[24] The evidence of Mr Daniel Bradtke (Mr Bradtke), the Manager Asset Strategy and Planning for Brookfield, was that it was normal procedure to on track at a road crossing where the employee has first themselves activated the boom gates. I accept that this has the safety benefit of reducing the risk of colliding with a member of the public’s vehicle. Mr Bradtke’s evidence was that in those circumstances, and in particular at the road crossing in question in this case, the driver of the hi-rail vehicle would have to drive on the wrong side of the road around the boom gates in order to on track and there is no policy prohibiting this.

[25] Self-evidently if a hi-rail vehicle is going to on track when the boom gates have been lowered the vehicle will usually have to drive on the wrong side of the road in order to get around the lowered boom gate to access the rail line.

[26] The applicant did drive on the wrong side of the road but this is not a reason to dismiss.

Was the flashing light on the hi-rail vehicle on while Mr Andersen was on tracking?

[27] I accept the evidence of Mr Andersen that the hi-rail vehicle he was driving automatically turned on the vehicle’s rooftop flashing light only when the vehicles track gear had engaged on the rail lines. It was not possible for him to manually turn on that flashing light before this had occurred automatically. His evidence is that in this vehicle he would then manually turn on the headlights. 1

[28] Mr Andersen’s evidence is that the flashing light on the top of his vehicle and its headlights were not on when the train approached his vehicle. As a consequence his vehicle was not readily identifiable at a distance as a hi-rail vehicle and could have been mistaken by the Train Driver and Observer for a member of the public’s vehicle which could have caused them to be fearful of an impending collision. 2

[29] At the time the train passed Mr Andersen’s hi-rail vehicle it had not yet engaged the rails because the vehicles flashing light was not on.

Did Mr Andersen on track while there was a train approaching on an adjacent line?

[30] There is no dispute that Mr Andersen was on tracking whilst a train was approaching on the other line. The real issue is whether or not he was trained to on track in these circumstances.

[31] In his witness statement Mr Andersen said 3 it was normal to get on track and off track at road rail crossings fitted with boom gates and Perway Patrollers are instructed to do so by Brookfield. This evidence however does not mention using rail crossings with boom gates to on track whilst the boom gates have been activated by an approaching train as distinct from the employee themselves manually operating the boom gates. The later approach Mr Bradtke explained was normal practice to facilitate on tracking.

[32] In cross-examination Mr Andersen agrees 4 with the evidence of Mr Bradtke that the normal approach is to manually lower the boom gates.

[33] At only two very limited points during cross-examination does Mr Andersen’s evidence arguably suggest he was trained to on track when the boom gates have already been activated because of an approaching train 5. Reviewing that evidence in the context it was given I do not think it is clear Mr Andersen was expressly stating he had been trained to on track when a train was approaching. It seems to me he was not making a clear distinction between the issue of being trained to on track at rail crossings with boom gates manually lowered versus being trained to on track when a train approaching had activated the boom gates.

[34] If Mr Andersen had been trained, as his representative submits, to on track at rail crossings when a train is approaching this would not have been an unusual event and if that was correct is difficult to understand why Mr Bingham and Mr Thorpe in the train were surprised and alarmed when they saw Mr Andersen do this.

[35] The evidence of Ms Thompson, which I accept is hearsay, but on which she was unshaken in cross-examination was that she spoke to two other senior Perway Patrollers including Mr Andersen’s trainer who told her that you do not on track as a train is approaching.

[36] Common sense would also suggest that on tracking a hi-rail vehicle when a train is approaching involves additional risk rather than doing so having manually lowered the boom gates when there is no train approaching.

[37] My finding on the balance of probability is that Mr Andersen was not trained by Brookfield to on track the hi-rail vehicle at a rail crossing when the boom gates had been activated by an approaching train.

Did Mr Andersen’s hi-rail vehicle cross over the adjacent rail line?

[38] Mr Andersen’s evidence was that when he was driving the hi-rail vehicle he did not cross over onto the adjacent rail line and so did not obstruct or interfere with the down main.

[39] Mr Thorpe’s witness statement given in October 2015 states that Mr Andersen in on tracking swerved onto the train’s side of the track. He was sitting on the right hand side of the locomotive. His impression was that the train was going to hit Mr Andersen’s vehicle. As they approached closer he says Mr Andersen’s vehicle swerved back on to the up main and he was then relieved. 6

[40] Under cross-examination Mr Thorpe agreed that the video taken from the train’s camera does not show Mr Andersen going onto the train side of the track. He agreed that Mr Andersen only came close to crossing onto the down main.

[41] Mr Bingham in his statement given in October 2015 said that Mr Andersen’s vehicle turned on to the opposite side of the track very quickly and he thought about six feet of the vehicle went on to the train’s side of the track. He was about to put the train brakes on because he thought it was going to be a suicide but in the end did not need to take emergency action as Mr Andersen’s vehicle got out of the way pretty quickly. 7 He was positioned on the left hand side of the locomotive.

[42] Under cross-examination Mr Bingham points out that the video taken from the train’s camera is from a different angle than the view he had as the Train Driver. He agrees that having watched the video he cannot see that Mr Andersen’s hi-rail vehicle crossed onto the train’s side of the track. He accepts that he could have been mistaken about the hi-rail vehicle crossing onto the train side of the track. He agrees this may have been because of the curvature of the rail line as it approached the road crossing. He accepts Mr Andersen may not have crossed onto the train side of the track but at the time it looked like he had done so from his angle. 8

[43] The conclusion of Ms Thompson after her investigation was that she did not think that Mr Andersen’s hi-rail vehicle had crossed onto the down main on which the train was approaching.

[44] The video from the train shows Mr Andersen’s vehicle approaching the rail crossing quite quickly from the right hand side. As his vehicle enters the rail crossing he turns sharply left 90° to face the oncoming train and then stops on the up main. The video shows that the train line curves to the left as it approaches the road rail crossing and as a result it may well have appeared to Mr Thorpe and Mr Bingham in the few seconds before they drew level with Mr Andersen’s vehicle that he had partly crossed the down main when making the sharp 90° left turn to position his vehicle on the up main. It is to the credit of both Mr Thorpe and Mr Bingham that having been showed the video footage they did concede that there original statements on this point were not correct.

[45] Considering all the evidence I accept that Mr Andersen when driving the hi-rail vehicle did not cross the down main whilst positioning his vehicle on the up main.

Did Mr Andersen exit the hi-rail vehicle adjacent to the train while it was passing?

[46] Mr Andersen does not deny exiting the hi-rail vehicle adjacent to the down main but says that he waited for the train to pass his vehicle and did not exit until the last wagon had passed.

[47] The evidence of Mr Thorpe in his witness statement in October 2015 is that he was sitting when he first saw Mr Andersen’s vehicle however as the train came up beside the vehicle at the road rail crossing he half got up out of his seat and turned to get a better view of the side of the vehicle. His statement was that,

“I looked back and saw the driver of the vehicle getting out of the driver-side between his vehicle and the moving train.”

[48] He says the first wagon of the train would have been beside Mr Andersen at that stage and there were approximately 50 wagons on the train. His statement was that he was close enough to see Mr Andersen get out of the vehicle and look straight up at him and make eye contact.

[49] He then goes on to say in his statement,

“I said to George words to the effect of ‘Oh My God he is getting out of the cab of his vehicle.”

[50] “George” is Mr Bingham. Mr Bingham’s statement also made in October 2015 was that,

“I remember Geoff then saying to me words to the effect of ‘The guy just got out of the vehicle’ I also recall him saying words to the effect that the driver of the vehicle was an ‘idiot’.”

[51] Mr Thorpe reported the incident to the Brookfield Train Controller by radio immediately after it occurred. A few minutes later he also reported via telephone to the Watco Operation Centre. Later that day he also advised his Supervisor about the incident.

[52] The following day Saturday, 20 June 2015, Mr Thorpe was concerned that the detail of the incident may not have been recorded and so sent an email detailing what had occurred as they approached the road rail crossing to his Supervisor. The email refers to a 4WD aggressively driving around the boom gates and stopping on the up main as the train approached. It then reads as follows,

“As the Locos went past we noticed it was a Brookfield vehicle, and the driver exited the cab of the 4WD between the vehicle and moving train to engage his road/rail apparatus as the train was traversing the level crossing.”

[53] On 3 July 2015 he was asked to provide a statement regarding the incident which had been requested by Brookfield’s Vice President of Safety. Mr Thorpe’s email in response refers to the train video and says,

“…shows vehicle driving around the boom gates at Farrell Road, after our locos past the vehicle, I turned around and observe the driver of vehicle exiting vehicle cab on live side, between the vehicle and moving train, as we were concerned for the safety of the vehicle, as to what was observed by both crewmembers of 6K06 train crew, the action seemed unsafe.”

[54] Mr Thorpe has provided a second witness statement in January 2016 which explains how he came to make the October 2015 witness statement. He says that the interview with Brookfield’s lawyer on which the October 2015 statement was based was recorded. After the interview that the lawyer emailed him a witness statement which he signed and sent back to her.

[55] Mr Thorpe in his January 2016 statement says that after signing the October 2015 statement he became unsure of what he had seen on 19 June 2015. He contacted Brookfield’s lawyers and asked for his statement to be withdrawn because he no longer believed it to be accurate.

[56] Mr Thorpe at the hearing swore under oath that at the time of making the October 2015 statement he genuinely believed it was true and correct. He also swore to the truthfulness of his January 2016 statement.

[57] Mr Thorpe in the witness box listened to the audio recording of what was occurring in the train cab at the time of the incident. He confirmed that the voices that could be heard were himself and Mr Bingham and other voices in the background came from the radio.

[58] Mr Thorpe in the witness box also listened to the recording made of his interview with Brookfield’s lawyer which formed the basis of his October 2015 witness statement and confirmed what was recorded was what he said at that time.

[59] Mr Thorpe explained why he made the second witness statement in January 2016 as follows,

“Just, I suppose, Mr Raftos, as time goes by - the event has got, I suppose, hazzier as time has gone by and just not 100% sure of exactly what happened, whether he was out of the vehicle or maybe just sticking his head out of the window or opening the door to have a look. I’m just not 100% sure.” 9

[60] Under cross examination he explained his situation as follows,

“Well, after the-Mr Fogliani, after the months that have transpired I began to have serious doubts with Mr Andersen had actually exited the vehicle. As I said, it happened so quickly and if Mr Andersen says he didn’t then I’ve got no reason to disbelieve him.” 10

And,

“I don’t - in that split – second I feel I don’t want to be responsible for someone getting into trouble. If he was actually there and he says he didn’t get out, then he didn’t get out.” 11

[61] It is apparent from Mr Thorpe’s evidence that he is concerned that his evidence given in the October 2015 statement may be detrimental to Mr Andersen and he does not want to be responsible for getting him into trouble. Whilst his memory of the events may well have faded with time his recollection of those events close to the time they occurred, as detailed in two emails he sent, one only the next day, both specifically referred to Mr Andersen exiting the hi-rail vehicle on the train side as it was passing. Mr Thorpe’s original statement made in October 2015 is consistent with this.

[62] On the balance of probability the evidence Mr Thorpe gave in his October 2015 witness statement was given honestly and truthfully at the time. Quite separately the evidence he gave then is confirmed by the evidence of Mr Bingham as to what Mr Thorpe said to him whilst the incident was occurring at the rail crossing. Both Mr Thorpe’s and Mr Bingham’s evidence is independently confirmed by the audio recordings of what was being said in the train cab at the time of the incident. That audio records one of either Mr Thorpe or Mr Bingham saying in an agitated manner something indistinct and then quite clearly “…opened his fucking door too” and then one or the other exclaims “Why did he do that?”

[63] Consequently I am satisfied on the evidence that Mr Andersen did exit the hi-rail vehicle between the vehicle and the train while the train was passing.

[64] Whilst Mr Andersen in his evidence at the hearing sought to excuse his actions on the basis that he was subject work pressures there is no evidence supporting this. I note Mr Andersen did not raise any explanation for his actions, let alone that he was responding to work pressure, in response to the show cause letter as will be detailed below.

[65] I find that there was no good reason why Mr Andersen did not wait for the train to pass and then, when appropriate, manually activate the boom gates and then on track. I find that this would have been a much safer way to have gone on track and only delayed his trip by a few minutes.

[66] On 3 July 2015 Mr Andersen met with Mr Bradtke, Cheng Tan and Kim Morgan at Brookfield’s Kewdale office. Mr Andersen was told that a Train Driver had reported him. Mr Andersen was given a letter dated 3 July 2015 and told that he was being stood down pending the investigation.

[67] The letter referred to the investigation seeking to ascertain what took place on 19 June 2015 where it has been alleged that he had committed a number of driving offences and breached safety processes at a level crossing whilst attempting to get on track in his hi-rail vehicle.

[68] Mr Andersen was interviewed by Ms Thompson as part of the investigation.

[69] On 9 July 2015 Mr Andersen again met with Brookfield management including Mr Bradtke and was given a letter of the same date. This was a show cause letter wherein it was said that the investigations had proven he had driven around traffic at the boom gates whilst a train was approaching and proceeded to exit his vehicle on the live side of the track while the train passed.

[70] The letter explained that this conduct appeared to be in breach of Westnet rule 183 and Instruction 401. The letter invited him to provide reasons as to why his employment should not be terminated.

[71] In response on 10 July 2015 Mr Andersen sent a letter to Mr Bradtke saying he at no time intentionally set out to breach the rules or the code of conduct. The letter said he was at a loss to provide a suitable answer concerning his recent indiscretions and that he never intended to put any other person or his own safety in jeopardy.

[72] The letter did not contest in any way whatsoever the findings of the investigation as they had been detailed in the show cause letter that he had been provided by Brookfield the previous day.

[73] On 16 July 2015 a letter notifying Mr Andersen that his employment was terminated was provided to him. That letter detailed relevant background considerations including the fact that on 16 February 2015 Mr Andersen was counselled in regards to speeding and unsafe driving while using a company road rail vehicle on track. On 19 February 2015 he was issued a formal warning following the counselling and was warned that any further acts of unsafe/inappropriate use of company property including but not limited to speeding may lead to further disciplinary processes and potentially dismissal.

[74] Mr Andersen was dismissed with payment in lieu of notice.

The applicant’s submissions

[75] It is submitted on behalf of the applicant that the primary issue before the Commission is whether Brookfield had a valid reason to terminate Mr Andersen’s employment. For Mr Andersen it is argued that there was no such valid reason for his dismissal.

[76] With respect to the five matters that may individually or separately be a valid reason for dismissal it was submitted that whilst it was accepted that Mr Andersen did drive on the wrong side of the road the evidence is that Brookfield took no issue with this in the circumstances.

[77] Secondly it is submitted that the vehicle’s flashing light was not on because it was not possible for Mr Andersen to independently turn on the flashing light as this occurs automatically when the vehicles track gear is engaged.

[78] Thirdly it was accepted that Mr Andersen did on track whilst a train was approaching but it was submitted that he was trained to on track in this manner and so Brookfield have no basis for complaint.

[79] Fourthly it is submitted that at no time did Mr Andersen cross over onto the adjacent line whilst on tracking.

[80] Finally it is submitted that Mr Andersen did not get out of the hi-rail vehicle while the train was passing on the adjacent line, he in fact waited until the last wagon had passed before he exited the vehicle.

[81] Consequently it is submitted there is no valid reason for Mr Andersen to have been dismissed.

[82] In all the circumstances the Commission should find that Mr Andersen has been unfairly dismissed.

The respondent’s submissions

[83] For the respondent it is submitted that as a Perway Patroller Mr Andersen was required to comply with the WestNet Book of Rules.

[84] Relevantly rule 183(6) states a special care must be taken when occupying the Danger Zone where there are adjacent lines, and if necessary separate protection must be provided for that line. In addition Instruction 401(2) of the appendix to the book of rules states an employee in charge of a road rail vehicle must exercise the greatest possible vigilance and take all reasonable precautions In the use of the vehicle, to protect persons and the machine from accident or collision with trains or other vehicles or road vehicles at level crossings.

[85] The applicant was trained in and was aware of these rules.

[86] Mr Andersen, it is submitted, drove around stationary traffic and boom gates that had been activated to allow a train to pass and placed his vehicle on track whilst the train was approaching on the adjacent mainline.

[87] In doing so he went on track in a reckless manner. He then exited his vehicle on the live side of the track while a train was passing without any safe working protection in place.

[88] Mr Andersen also failed to report the incident in accordance with the rules and procedures.

[89] Mr Andersen was not honest and transparent during the investigation into the incident.

[90] It was submitted that Mr Andersen’s actions were a serious safety breach and breached the safety rules of Brookfield.

[91] Mr Andersen also had a prior written warning for unsafe driving.

[92] Mr Andersen was afforded procedural fairness.

[93] Mr Andersen’s dismissal was neither harsh, unjust nor unreasonable.

[94] In all the circumstances the application should be dismissed.

The legislation

[95] Section 387 of the Act sets out those matters the Commission must have regard for when deciding whether or not the dismissal of Mr Andersen was harsh unjust or unreasonable.

“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

[96] On 19 June 2015 Mr Andersen on tracked his hi-rail vehicle at a road rail crossing. At the time the boom gates had already been activated to allow an approaching train to pass. Mr Andersen drove around the stationary cars onto the crossing and positioned his hi-rail vehicle on the up main only seconds before the train passed through the crossing. Whilst the train was passing he exited his vehicle through the driver’s door, placing him in between his vehicle positioned on the up main and the passing train on the down main.

[97] Mr Andersen’s conduct was in breach of Westnet Rules and Instructions which prescribe safe working practices he was trained in, aware of, and bound to comply with.

[98] On tracking his hi-rail vehicle as he did on this occasion was inherently dangerous and involved unnecessary risks. Mr Andersen’s conduct was a valid reason for his dismissal.

Notification of the reason

[99] Mr Andersen was notified of the reason Brookfield was considering dismissing him, in writing, prior to the final decision to dismiss had been made.

Opportunity to respond

[100] Mr Andersen was advised of the specific allegations against him in writing. Mr Andersen was then interviewed as part of the investigations into those allegations.

[101] Mr Andersen was provided with a detailed letter explaining the findings of the investigations and the reasons Brookfield was considering dismissing him. He was invited to show cause as to why he should not be dismissed.

[102] Mr Andersen provided a written response to the company’s show cause letter which was considered before the final decision to dismiss was made.

[103] Mr Andersen was provided an opportunity to respond.

Support person

[104] There was no unreasonable refusal to allow a support person present to assist in discussions relating to dismissal.

Unsatisfactory performance warnings

[105] To the extent that Mr Andersen’s conduct can be viewed as unsatisfactory performance he had previously been warned in writing in February 2015 regarding speeding and unsafe driving in the company’s hi-rail vehicle while on track.

[106] That letter warned any further acts of unsafe or inappropriate use of company property may lead to disciplinary processes and potentially dismissal.

Size of the enterprise and human resource management specialists

[107] The respondent is a large enterprise and does have dedicated human resource specialists. The procedure followed in this instance was appropriate and reflective of the in-house human resource management expertise.

Other matters

[108] Mr Andersen had been employed just short of four years.

[109] During his employment, some five months prior, he had received counselling and a written warning for unsafe conduct while driving the hi-rail vehicle.

[110] The rail industry in which Brookfield operates I accept is a safety critical industry.

[111] Road rail crossings pose risks to members of the public and to Train Drivers. Mr Andersen showed no concern for those members of the public in their cars who witnessed him go around them, drive through the lowered boom gates and continue towards the oncoming train. It is likely some of these people would have been alarmed when they saw this. Nor did Mr Andersen show any concern for the Train Driver and Observer in the train who the evidence shows were in fact alarmed by his actions and momentarily thought he may be driving into the path of the train to commit suicide.

Conclusion

[112] In this case the dismissal of Mr Andersen was neither harsh, unjust nor unreasonable. Mr Andersen was not unfairly dismissed.

[113] An order dismissing this application will now be made.

COMMISSIONER

Appearances:

C Fogliani of W.G. McNally Jones Staff Lawyers for the applicant.

J Raftos of Counsel for the respondent.

Hearing details:

2016.

Perth:

March 31.

Final written submissions:

Applicant, 6 May 2016.

Respondent, 22 April 2016 and 13 May 2016.

 1   Transcript at PN533.

 2   Ibid., at PN312 to PN318. Exhibit R3 at paragraphs 23, 25 and 26.

 3   Exhibit A1 at paragraphs 6 and 7.

 4   Transcript at PN60.

 5   Ibid., at PN64 and PN301.

 6   Exhibit R5 at paragraphs 25 to 32.

 7   Exhibit R3 at paragraphs 21 to 23.

 8   Transcript at PN684 to PN700.

 9   Ibid., at PN775.

 10   Ibid., at PN861.

 11   Ibid., at PN862.

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