Dispute about matter arising under the enterprise agreement – disciplinary process – written warning provided in relation to tram operator passing through a red light without authority – investigation, grievance and subsequent appeal process – outcome of appeal not applied by the employer – whether applicant entitled to utilise the appeal process and whether outcome binding – dispute about whether natural justice and procedural fairness afforded to worker as a result of this and other actions taken in relation to the matter – agreement construction principles discussed – meanings of natural justice and procedural fairness considered – alleged apprehended or actual bias – no industrial instrument, policy, contractual or other commitment obliging the Rail Commissioner to adopt and apply the appeal outcome in this case – appeal agreement outcome not binding and no basis for intervention in relation to the disciplinary decision found - criticism of process made but scope of Commission’s role and lack of practical injustice significant – determination of proper application of the enterprise agreement made – observations made about future conduct of grievance matters.

1. The dispute and its context

[1] This decision concerns the determination of a dispute about the investigation, disciplinary and grievance procedures applied in connection with the Rail Commissioner Tram Operations Enterprise Agreement 2018 (the 2018 EA) by the Rail Commissioner in relation to Mr Mark Evans, the applicant in this matter. This matter is being determined by the Commission as a result of an application lodged under s.739 of the Fair Work Act 2009 (the FW Act).

[2] The 2018 EA commenced operation on 13 June 2018 and applies to the Rail Commissioner, the Rail Commissioner’s employees classified pursuant to the enterprise agreement (including Mr Evans), and the Australian Rail, Tram and Bus Industry Union (RTBU).

[3] The Rail Commissioner is a statutory body corporate established under the Rail Commissioner Act 2009 (SA) and its functions include the operation of public transport services by train or tram in metropolitan Adelaide. The Rail Commissioner is administratively part of the South Australian Department of Planning, Transport and Infrastructure (DPTI or the Department). Decisions made by the Rail Commissioner are in reality determined by senior departmental officials who have delegated authority from time to time (the Delegate).

[4] Mr Evans is a long-standing Tram Operator and the events directly leading to this application stem from an incident that took place on 7 May 2019 when he passed a red light (a traffic signal specifically displayed for the trams) whilst driving a tram on North Terrace in Adelaide. The Rail Commissioner found that Mr Evans had done so without authority and considered this to be misconduct. A written warning was issued to Mr Evans, which he disputes. This issue was considered by an Appeal Board that is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Evans v Rail Commissioner

Details

AGLC: Mark Evans v Rail Commissioner [2020] FWC 448
Case: [2020] FWC 448
Decision Date: 27 FEBRUARY 2020

CaseChat Overview and Summary

In the case of Mark Evans v Rail Commissioner, Mark Evans, a tram operator, disputed a disciplinary process that resulted in a written warning for passing through a red light without authority. The matter was brought before the court to address the procedural fairness and natural justice afforded to Evans during the investigation, grievance, and subsequent appeal process. The Rail Commissioner did not apply the outcome of the appeal, leading Evans to argue that he was entitled to utilise the appeal process and that the outcome should be binding. The court was required to determine if the agreement's appeal process was correctly applied and if the Rail Commissioner was bound to adopt and apply the outcome. Additionally, Evans argued that his rights to natural justice and procedural fairness were breached due to the Commissioner's actions and other related incidents.

The court examined the principles of agreement construction to interpret the meanings of natural justice and procedural fairness within the context of the enterprise agreement. It found that there was no industrial instrument, policy, contractual, or other commitment obliging the Rail Commissioner to adopt and apply the appeal outcome in this specific case. Consequently, the appeal outcome was not binding, and there was no basis for the court to intervene in the disciplinary decision. While the court acknowledged some criticism of the process, it concluded that the scope of the Commission’s role and the absence of practical injustice outweighed these concerns. The court ultimately determined that the proper application of the enterprise agreement had occurred and made observations about the future conduct of grievance matters to avoid similar issues.

Following the court's determination, it was found that the Rail Commissioner's actions did not breach natural justice or procedural fairness, and the appeal outcome was not binding. The court refrained from intervening in the disciplinary decision and advised on the proper application of the enterprise agreement. Observations were made regarding the future conduct of grievance matters to prevent similar procedural issues from arising. The court's final orders were consistent with its determination, affirming that the appeal process was not improperly applied and that the Commissioner was not bound to adopt the appeal outcome.

Orders