Mark Evans v Rail Commissioner
[2020] FWC 448
•27 FEBRUARY 2020
| [2020] FWC 448 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mark Evans
v
Rail Commissioner
(C2019/5744)
RAIL COMMISSIONER TRAM OPERATIONS ENTERPRISE AGREEMENT 2018
COMMISSIONER HAMPTON | ADELAIDE, 27 FEBRUARY 2020 |
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 administratively established by the Rail Commissioner. The Appeal Board, by majority, found that the “appeal” should be allowed and the decision to impose the written warning should be “discharged”. There is a dispute about the status and import of this outcome.
[5] The Rail Commissioner, through an authorised delegate, considered the Appeal Board outcome but determined to, in effect, uphold the original decision made by the employer and maintained a written warning for Mr Evans.
[6] As originally contended, Mr Evans disputed the written warning on both merit grounds, that the warning was harsh and unfair, and on procedural fairness and natural justice grounds. During the course of the hearing of the dispute, Mr Evans narrowed the grounds to the latter proposition. 1
[7] As a result, the principal matter in dispute is whether the requirements of clause 20.8 of the 2018 EA have been met in relation to the disciplinary and grievance procedures being applied to Mr Evans, and if not, what consequences should follow. Clause 20 of the EA is entitled “Workplace Representatives & Trade Union Training” and subclause 20.8 provides as follows:
“20.8 In the event of a grievance or the commencement of a process relating to alleged misconduct or any other similar matter, it is accepted that procedural fairness and natural justice principles must apply at all times, including the right of an employee to be represented.”
[8] It has not been suggested by the parties that this subclause should be read down due to its place within the enterprise agreement. There is also no suggestion that Mr Evans was denied the right to be represented through the various stages of the process adopted by the Rail Commissioner to deal with the incident.
[9] I observe that the 2018 EA does not import or refer to any of the Rail Commissioner’s policies and procedures relevant to this matter. Further, there are no other provisions within the enterprise agreement dealing with disciplinary action, other than clause 18, addressing demotions due to misconduct or unsatisfactory performance, which is not relevant in this case.
[10] The dispute was referred to the Commission under clause 48 of the 2018 EA; being the relevant dispute resolution term, and it is common ground that the process required by that provision has been followed. This has included the Commission as presently constituted conducting conciliation conferences. Both parties confirmed their concurrence with the Commission continuing to deal with the application and to now determine the matter.
[11] The Rail Commissioner advanced an objection to the Commission’s jurisdiction based upon the original scope of the dispute, but I do not understand that there is any question about the capacity of the Commission to determine the more narrow dispute based upon clause 20.8 of the 2018 EA. In any event, I am satisfied that the Commission has the necessary jurisdiction to do so given that clause 48 permits the Commission to determine a dispute arising under the Agreement. 2
[12] Ultimately Mr Evans’ contentions are based upon two broad propositions. Firstly, that the Rail Commissioner established the Appeal Board and referred the dispute about the written warning to that Board. As a result, it was bound to accept the decision of the majority, as it had done on previous occasions, including one appeal involving Mr Evans. Any attempt by the Rail Commissioner to consider the Appeal Board as being an optional part of the grievance process was unfair and amounts to changing the rules of the game whilst it was still being played. Secondly, Mr Evans contends that the outcome imposed by the Rail Commissioner did not meet the requirements of natural justice or procedural fairness for a variety of other reasons associated with what he claims was the bias of some of those involved and what might be described as the absence of due process.
[13] The Rail Commissioner contends, amongst other matters, that Mr Evans is not eligible to access the Appeal Board process and that the Board was, in effect, used as part of the grievance process to investigate the issue. As such, the outcome of the Appeal Board was not binding, and as it had done on at least one another occasion, the Delegate considered the matter and determined to maintain a contrary outcome to that “recommended” by the majority of the Board. The Rail Commissioner also denied the basis of the other grounds now relied upon by Mr Evans.
2. The detailed positions of the parties
2.1 Mr Evans
[14] As outlined earlier, the s.739 application as filed sought to deal with the substantive merit of the decision by the Rail Commissioner to impose the written warning and a series of concerns concerning the process adopted by the employer to reach that point. Those concerns primarily focused upon the decision of the Rail Commissioner not to apply the outcome determined by the Appeal Board. In written submissions filed in advance of the hearing of this matter, Mr Evans also relied upon a series of alleged bias and procedural fairness issues associated with the original investigation and decision made by the Rail Commissioner and sought a series of some five outcomes.
[15] At the commencement of the hearing in this matter, Ms Evans on behalf of Mr Evans indicated that the Applicant was in fact by then seeking two outcomes from the determination of this matter. 3 Firstly, that the written warning given to Mr Evans as a result of the incident be replaced with the verbal warning imposed by the majority decision of the Appeal Board. This was advanced not as a matter of merit, but rather, what was contended to be a breach of the natural justice and procedural fairness requirements of clause 20.8 of the 2018 EA resulting from the Rail Commissioner failing to apply the Appeal Board outcome.4
[16] The basis of this contention included that a copy of the Appeal Agreement was provided by the Rail Commissioner in response to his request to appeal the decision and the Appeal Board was established by the Rail Commissioner to deal with that appeal. Further, Mr Evans had accepted the appeal process in good faith and with the expectation that the process would run in the same manner as a previous appeal process undertaken by the Applicant. That is, where the outcome determined by the Appeal Board was applied.
[17] Mr Evans also appeared to rely upon some of the concerns about the process leading to the decisions to impose a written warning including the continued involvement of a Departmental representative in the process after a complaint had been made about some of his conduct and what was contended to be a failure by the Rail Commissioner to take mitigating circumstances into account when determining the final outcome. Other issues of alleged bias and unreasonableness were also raised by Mr Evans.
[18] The second outcome sought by Mr Evans was that the Rail Commissioner communicate to employees clearly and decisively their rights should an employment dispute arise. This was fundamentally based upon the above issues.
[19] Mr Evans did not provide a sworn witness statement and did not give oral evidence in the matter. Mr Evans also did not seek to substantively challenge the evidence of two of the Rail Commissioner witnesses who were involved in the initial investigation process. The consequences of not doing so, including that Mr Evans view about the facts associated with incident on 7 May 2019 were not in evidence; the Commission would be bound to accept the evidence of the unchallenged Rail Commissioner witnesses; and the substantive merit of the decision to impose the written warning could not be challenged, were pointed out to, and accepted by, Mr Evans.
[20] Mr Evans relied upon a statement and oral evidence from Mr Phillips, Branch Secretary of the RTBU SA/NT Branch, who also sat on the Appeal Board dealing with Mr Evans’ matter, and on other occasions.
2.2 The Rail Commissioner
[21] The Rail Commissioner contends, in effect, that there is no basis for the Commission to intervene in the decision to impose a written warning on Mr Evans. It contends that the Commission would not have the jurisdiction to do so, as a result of the scope of the dispute resolution provision of the 2018 EA. Further, the Rail Commissioner contends that there was no denial of natural justice or procedural fairness in the process leading to the disciplinary outcome.
[22] In relation to the role played by the Appeal Board, the Rail Commissioner contends that Tram Operators, such as Mr Evans, are not eligible to access the Appeal procedure, noting this procedure was created by the State Transport Authority (STA), a predecessor of the Rail Commissioner.
[23] Although not eligible for the Appeal Procedure, if a Tram Operator feels aggrieved by a decision, a Delegate, other than the original decision maker will review the decision and determine an appropriate outcome through the Grievance Procedure. Further, the Rail Commissioner is not required to make an Appeal Board available to investigate that grievance, but may utilise a number of resources including the Conduct and Investigations Unit of the Department or the Appeal Board.
[24] The Rail Commissioner further posited that as it was not obligated to make an Appeal Board available to a Tram Operator, it would not be reasonable to conclude that it is required to adopt the majority view of that Board. That is, it was always the Rail Commissioner’s discretion whether to use the Appeal Board and it was not obligated to adopt what amounts to a recommendation made by that Board. In that regard, it also relied upon circumstances where it had not applied the outcome of an Appeal Board process, including where a lesser disciplinary penalty than recommended was applied by the employer.
[25] The Rail Commissioner contends that the approach proposed by Mr Evans would be analogous to the Rail Commissioner being obliged to adopt to the recommendation of an external consultant simply because it determined to engage the external consultant to investigate a grievance.
[26] The Rail Commissioner also rejected the notion that Mr Evans had been misled or given a false expectation about the Appeal Board or that the process or outcome led to any basis for the Commission to intervene.
[27] The Rail Commissioner led evidence from the following:
• Ms Kiara Hoste – Human Resources Consultation with DPTI – who was involved in the initial investigation;
• Ms Yvonne Franklin – Team Leader Tram Operations - who was involved in the initial investigation;
• Ms Anne Alford - Executive Director, South Australian Public Transport Authority and Deputy Rail Commissioner; and
• Mr Daniel Nikoloski – Principal Consultant Human Resource with DPTI.
[28] By agreement between the parties, Mr Ray Matcham, Chairperson of the Appeal Board for Mr Evans’ matter, was also called to give evidence.
3. Observations on the evidence
[29] As outlined above, Mr Evans did not give evidence and he did not substantively challenge the evidence of Ms Hoste or Ms Franklin, with the consequences also set out earlier. 5
[30] I found that each of the witnesses that gave evidence before the Commission did so honestly and openly and I accept their evidence as to the facts. To the extent that some of these witnesses expressed subjective opinions about the status of the Appeal Board or the outcome of that process, these are matters properly for the Commission to determine. I have largely treated such evidence as submissions or, where relevant, part of the context that explains how matters may have been treated by the parties.
4. The facts of this matter
4.1 Chronology of events leading to the dispute
[31] It is not necessary to provide a full chronology of Mr Evan’s employment or the events leading to the final decision made on behalf of the Rail Commissioner. However, some context is important.
[32] Mr Evans has been employed by the Rail Commissioner since 12 January 2009. He has been undertaking duties as a Tram Operator since 2009. During his employment to date, Mr Evans has received numerous commendations for his customer service.
[33] Mr Evans has also been subject to a performance counselling following an incident in November 2016 involving an incorrect signal selection from the Glengowrie Tram depot which involved the tram being routed in the wrong direction – the November 2016 counselling.
[34] There were two previous matters where the Rail Commissioner took some disciplinary steps in relation to Mr Evans associated with misconduct. On 14 July 2014, Mr Evans left the tram he was driving unattended. Due to the circumstances, including Mr Evans’ disputing the proposed outcome, he was eventually provided with a verbal warning. On 11 August 2018, Mr Evans enabled the doors on the wrong side of the tram to open and did not immediately report the incident as required. Mr Evans was ultimately provided with a verbal warning 6 by the Rail Commissioner following consideration of the Applicant’s acceptance of the failure to immediately report the incident as misconduct and some mitigating circumstances – the August 2018 verbal warning. The Rail Commissioner determined at that time that the conduct leading to the 2018 verbal warning was contrary to the professional conduct standards in the Code of Ethics that applies to the South Australian Public Sector (the Code of Ethics).
[35] On 7 May 2019 at approximately 21.30 hours, Mr Evans was driving a tram in an Easterly direction along North Terrace in the Adelaide CBD. At the time, a combination of circumstances, including heavy rain and some debris on the line that was being cleared by an employee (referred to as a “NOS”), the tram signals were operating in safe mode. Having come across a red signal (a tram traffic light) at the intersection with Frome Road and not being given a signal allowing his tram to proceed as would be expected, Mr Evans spoke with Tram Control via the relevant radio network and, in effect, sought directions. When Tram Control and Mr Evans were advised that the NOS employee was clear of the track, Mr Evans was advised that a white T signal, which permits the Tram to proceed, would be arranged and that he was free to proceed when that signal was displayed. Mr Evans drove the tram through the white T signal but also proceeded through a subsequent red T signal at a pedestrian crossing some 65 metres 7 further down the tram track. I observe that the subsequent Appeal Board noted that Mr Evans accepted that he had breached the protocol that he was required to stop on the red T signal and not proceed until Tram Control gives authorisation8 but also relied upon a number of mitigating circumstances concerning this event.
[36] Proceeding through the red T signal represented a ‘Light Rail or Tram Authority Exceeded’ (LRTAE); that is, driving through a red T light without authority.
[37] Following consideration of a formal briefing, on 10 May 2019, Mr Stopp, - Director, Rail Operations, wrote to Mr Evans and advised that the Rail Commissioner alleged that his actions constituted a breach of the Tram Operating Manual in certain respects and that the alleged actions may have breached the Code of Ethics. Mr Stopp further advised that the matter would be subject to a full investigation.
[38] On 14 May 2019, Mr Evans attended an interview, accompanied by Ms Evans, conducted by Ms Kiara Hoste, Human Resources Consultant and Ms Yvonne Franklin, Team Leader Tram Operations. This interview formed part of the investigation of the 7 May incident.
[39] I observe that a Minute (a written briefing) was provided by Mr Nikoloski, Principal Consultant, Human Resources to Mr Stopp to enable Mr Stopp to make an initial decision about the alleged misconduct. That minute incorrectly stated that the November 2016 counselling was a misconduct matter, rather than a performance counselling.
[40] On 13 June 2019, Mr Stopp wrote to Mr Evans advising that having considered the results of the investigation he assessed that the allegations of misconduct had been made out and that he considered a written warning was the appropriate penalty. Mr Evans was given an opportunity to make submissions in mitigation of the proposed penalty; however, apparently due to a dispute about how the investigation interview was conducted, Mr Evans did not take up that opportunity. This was advised to the Rail Commissioner on 16 June 2019 along with advice that Mr Evans intended to “appeal any disciplinary action that HR recommend to the Delegate.” 9
[41] During June 2019, Mr Evans sought the transcript of the 14 May 2019 interview. The transcript was supplied by Mr Nikoloski 10 on 25 June 2019 along with a copy of the Department’s discipline procedure and a document outlining appeal procedures. I observe that Mr Evans subsequently alleged that there had been a falsification of the record of that interview (in the form of the recording and the subsequent transcription) and lodged a formal grievance about that matter. The focus of that grievance is whether an alleged statement about not being interested in mitigating factors, by one of the Rail Commissioner employees involved in the interview, which is disputed, was omitted from the written record and oral recording of the interview.
[42] On 2 July 2019, Mr Nikoloski provided a further Minute to Mr Stopp to enable the penalty decision to be made. That Minute corrected the earlier statement about the status of the November 2016 counselling.
[43] On 4 July 2019, Mr Stopp formally confirmed that Mr Evans was to be given a written warning about the 7 May 2019 incident. 11 I observe that the options available to Mr Stopp also included taking no further action, counselling, a verbal warning and a final written warning.
[44] On 7 July 2019, Mr Evans referred to the appeal procedures document earlier supplied by Mr Nikoloski and advised Mr Nikoloski that he intended to appeal the outcome determined by Mr Stopp. Mr Evans also requested a copy of all documents surrounding the investigation and confirmation as to which Departmental officer would attend the appeal. 12
[45] On 8 July 2019, Mr Nikoloski confirmed Mr Evan’s appeal request and indicated that “As per the procedure, the appeal will be heard within 30 days of the appeal period closing date; however we endeavour to have the appeal heard as soon as possible”. 13
[46] On 20 July 2019, Mr Evans formally advised Mr Nikoloski of the alleged falsification of the interview recording, that the person involved had committed misconduct and was involved in the disciplinary process and that the appeal was the “only hope for procedural fairness”. 14
[47] On 23 July 2019, Mr Evans was advised that the appeal was to be heard on 31 July 2019. Both before and after that time, exchanges occurred between Mr Evans and Mr Nikoloski about access to the formal Minutes relied upon by Mr Stopp. In the course of these exchanges, on 25 July 2019 Mr Nikoloski advised Mr Evans as follows:
“It is the panels job to determine the merit of the decision that misconduct occurred and the decision that a written warning was the appropriate disciplinary action considering all relevant information. The panel has all of the information necessary to make a decision on these two points and you have been provided the exact same information.” 15
[48] On 26 July 2019, Mr Nikoloski further advised Mr Evans as follows:
“… in essence, the panel almost acts like a new delegate that investigates the process itself, not necessarily a review of the process used by the previous delegate. As such, both you and the panel have been provided with all relevant information regarding the allegation and the panel will make its own decision on these matters separate to the delegate. However, the panel is allowed to inform itself as necessary, so if it determines it needs the minute to make a decision, a copy will also be provided to yourself.” 16
[49] Mr Nikoloski arranged for an Appeal Board to be established to deal with Mr Evans’ grievance about Mr Stopp’s decision to impose a written warning. This comprised the Chairperson – Mr Ray Matcham, an External Consultant who had sat on a number of appeals previously, a Departmental representative, and Mr Darren Phillips, on behalf of the RTBU.
[50] At some point, Mr Evans also lodged a formal complaint against Mr Nikoloski about his decision not to supply a copy of the Minutes leading to Mr Stopp’s decision, an indication that a witness statement from the NOS would not be considered by the Delegate, and the selection of the Rail Commissioner’s representative to sit on the Appeal Panel. I observe that Mr Nikoloski was advised of the terms of this complaint on or around 2 September 2019.
[51] The Appeal Board convened and heard from a representative of the Rail Commissioner and from Mr and Ms Evans, considered the documents provided, viewed the “video” recording and listened to the audio recording of the 7 May 2019 incident.
[52] On 5 August 2019, the Appeal Board released what it described as the Appeal – Outcomes Report 17 (the Appeal Report). Without overlooking the detail of the six page document, the Appeal Report sets out the background to the matter, the Board’s view that the grounds of the appeal by Mr Evans are “that the written warning was unreasonable and harsh” and makes observations about the facts of the matter and the various factors relied upon by Mr Evans as mitigating considerations.
[53] The outcome of the Board was stated in the following manner:
“… …
The panel was unable to reach a unanimous decision. The management representative took the view that going through a red light without appropriate authorisation was a strict liability offence. In view of the potential serious consequences the management representative considered that the written warning was an appropriate penalty, this being the third occasion that the Code of ethics and the associated 4 referral dot points had been breached.
The Chair and Union Representative took the view that the circumstances surrounding the commission of the offence including the visibility issues caused by the weather, the direction of the tram to the Southern side of the platform, the unusual circumstances of the changing signalling lights caused by signalling system being in safe mode, the presence of the NOS and the reported problem of plastic on the track potentially interfering with the points were such as were likely to cause a degree of confusion on the part of the driver. This was not a case of driver inattentiveness. The breach was caused by a combination of circumstances leading to a degree of confusion on the part of the driver.
Employment history
The panel noted that the appellant had commenced employment with the Department in January 2009. The Appellant contended that his eight commendations for excellent customer service should be taken into account in considering the appropriate penalty. The Panel noted however that the Appellant had previous misconduct matters in 2014 and 2018. Both had been dealt with by way of verbal warnings.
In considering these factors the panel took the view that taken in totality the appellant's employment history (whether positive or negative) should not be reflected in the penalty.
Decision
Although finely balanced, the majority of the Panel considered that in the somewhat unusual combination of circumstances, a verbal warning was an appropriate penalty.
It is the majority view of the panel that the appeal should be allowed, and the decision of the delegate be discharged. In substitution therefore the panel recommends that Mr Evans be issued with a verbal warning.” 18
[54] On 30 August 2019, Mr Nikoloski prepare a draft Minute for Ms Anne Alford, Executive Director, South Australian Public Transport Authority and Deputy Rail Commissioner, regarding Mr Evan’s grievance about the written warning and this was finalised on 2 September 2019 following some editorial changes made by another officer. The Minute referred, amongst other matters, to the Appeal Report and the earlier findings of Mr Stopp and provided some advice about the possible standing of the Appeal Board outcome in light of some indirectly related proceedings before this arm of the Commission. I will return to this aspect shortly.
[55] The Minute provided to Ms Alford did not recommend a particular outcome but recommended that she consider the information provided, determine whether to accept the “recommendation” of the Appeal Board, and if not, to determine whether misconduct has occurred and the appropriate action. The stated options were as follows:
• No Action
• Managerial Counselling
• Verbal Warning
• Final Written Warning
• Demotion
• Termination of Employment
[56] On 6 September 2019, Ms Alford determined not to accept the Appeal Board outcome, found that misconduct had occurred, and determined that a written warning (but not a final written warning) would be issued. 19
[57] The related Commission proceedings referenced above involved a dispute taken under the 2018 EA by the RTBU involving another tram employee of the Rail Commissioner. That dispute also involved consideration of clause 20.8 of the enterprise agreement and, indirectly, the status of the Appeal Board processes utilised by the Rail Commissioner. During the course of proceedings, the RTBU indicated its view that the Appeal Board process was not an absolute right for a Tram Driver, due to the stated coverage of the appeal procedures. This, and the subsequent decision of the Commission, Australian Rail, Tram and Bus Industry Union v Rail Commissioner 20 (the July 2019 FWC decision) appear to have impacted upon the Rail Commissioner’s approach to and description of the Appeal Board process in this matter and I will return to this aspect.
4.2 The relevant policies/procedures
Code of Ethics
[58] I have earlier referred to the existence of a relevant South Australian Public Sector Code of Ethics applicable to Mr Evans’ employment. The relevant employees of the Rail Commissioner, at least in general terms, are not covered by Part 7 of the Public Sector Act 2009 (SA) (the PS Act). 21 They are however for many purposes part of the South Australian Public Sector, and as set out earlier DPTI, acting on behalf of the Rail Commissioner, maintains all infrastructure and train and tram services within metropolitan Adelaide. As a result, the Code of Ethics is applicable to Mr Evans and must be considered in the context of the Discipline Procedure and any specific regulations or statutory context applicable to the Rail Commissioner as the employer.
[59] The Code of Ethics, in effect, has the following impact of potential relevance to this matter:
• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector, or Government into disrepute; or that is otherwise improper or disgraceful.
• Public sector employees will comply with a lawful and reasonable direction given to them as an employee by a person with authority to give such direction.
• Public sector employees will be diligent in the discharge of their role and duties and not act in a way that is negligent.
• Public sector employees will comply with all legislation, industrial instruments, policies and procedures and lawful and reasonable directions relevant to their role as a public sector employee and/or to the performance of their duties. 22
Discipline Procedure
[60] The Rail Commissioner’s Discipline Procedure policy 23 sets out the process by which disciplinary action is to be undertaken and in general terms it contemplates a graduated approach to such matters. Depending upon the nature of the allegations, the procedure contemplates a preliminary investigation, a decision about whether a full investigation is to be conducted – with associated obligations to advise the employee and provide them with an opportunity to be heard on the allegations, an investigation interview(s), and a series of graduated disciplinary actions including up to dismissal. In addition, the procedure contemplates a dismissal interview, should that eventuate in any given case.
[61] The stated object of the Discipline Procedure is that when disciplinary action is required to be taken, it should be objective and consistent. 24 The Delegate’s role is stated in the following terms:
“… …
The Delegate is responsible for undertaking the investigation interview/s, determining whether or not the employee is liable to disciplinary action, and determining the appropriate disciplinary action (i.e. the matter will be both heard and determined by the one person). It is not appropriate for one person to hear the inquiry and another to make the determination of liability to disciplinary action or imposition of a penalty.
Therefore, in accordance with the Division 's Delegations and Authorisations, in matters where termination is within the range of possible disciplinary outcomes, the Delegate must be an Executive Manager.
The preliminary investigation can be conducted by any manager.
… ...” 25
[62] The Discipline Procedure contemplates 6 steps in the investigation process; being:
• Preliminary investigation;
• If a full investigation is necessary – notification of investigation to the employee concerned including if required a direction not to attend for duty until further notice;
• Information gathering including obtaining witness statements and accounts of the events;
• An investigation interview with the employee concerned including an opportunity for the employee to defend themselves against the allegations made;
• Due consideration of the information gathered; and
• Decision.
[63] Clause 8 Determining Appropriate Disciplinary Action provides as follows:
“8. DETERMINING APPROPRIATE DISCIPLINARY ACTION
Once misconduct has been proven by an investigation, or poor performance (following counselling, goal setting, assistance and opportunity to address concerns provided) has been identified and documented, the appropriate disciplinary action can be determined.
8.1. Prohibited grounds for disciplinary action
Whilst not a definitive list, the Rail Commissioner must not take disciplinary action for any one or more of the following reasons:
• trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
• non-membership of a trade union;
• seeking office as, or acting or having acted in the capacity of, a representative of employees; or
• the filing of a complaint, or the participation in proceedings, against the Rail Commissioner involving alleged violation of laws or regulations or recourse to competent administrative authorities.
8..2 Demonstrating good cause
The Rail Commissioner must be able to demonstrate sufficient reason for the disciplinary action taken. In determining good cause, one must consider what a 'reasonable employer' would do given the circumstances of the particular case at hand. As such, the examples provided in this procedure should serve as a guide only in determining the appropriate disciplinary action.
In addition to the seriousness of the particular behaviour/misconduct, a reasonable employer would consider the following factors in determining the appropriate disciplinary action:
• previous warnings;
• how other employees have been treated in similar circumstances;
• the employee's length and record of service;
• the employee's position;
• the employee's personal circumstances;
• the nature of the employment and the employee's duties;
• the custom and practice in the workplace and Rail Commissioner as a whole;
• the type of workplace;
• (in special circumstances) the likelihood of the employee gaining alternative employment; and
• mitigating circumstances. 26
[64] The nature and purpose of the various warnings contemplated in the Discipline Procedure is stated in the following terms:
“9. FORMAL DISCIPLINARY ACTION: WARNINGS
9.1. Introduction
It is essential for formal warnings to be documented correctly as they may be required at a later date, to support further disciplinary action or unfair dismissal cases.
Disciplinary action should be modelled on the following four principles:
• Clear expectations
• Immediacy
• Consistency
• Impartiality
9.1.1 Clear expectations
Clear expectations of performance standards, and organisational policies, procedures and instructions (and the consequences of any breach) will assist in demonstrating that any subsequent disciplinary action is fair.
It is therefore necessary that appropriate orientation and a copy of the Code of Ethics for the South Australian Public Sector are given to each employee. In addition, any changes to policies and instructions must be communicated in appropriate terms to all employees. This can be done through employee handbooks and internal memos. The onus is on the Rail Commissioner to demonstrate that the employee received the appropriate written documentation.
It is also necessary to ensure that if an employee is being disciplined for failure to comply with a policy or instruction that he or she had been informed of that instruction or policy in terms which he or she could comprehend (e.g. employees who cannot clearly understand written English).
9.1.2 Immediacy
The manager must initiate the appropriate disciplinary action, as soon as possible after misconduct comes to notice and has been investigated, or poor performance has been identified.
The Rail Commissioner may be seen to condone misconduct/continued poor performance if no action is taken against the employee within a reasonable period of time. Under the principles of procedural fairness, action cannot be taken if an unreasonably long period of time has elapsed since an incident of misconduct was reported.
The manager must therefore inform the employee involved that:
• the alleged misconduct/continued poor performance has been noted;
• it is being further investigated to ensure that a proper decision is taken; and
• he or she will be notified of any action at the earliest possible opportunity.
9.1.3 Consistency
The Rail Commissioner (and individual managers) must be consistent in the way that disciplinary issues are addressed. Although consideration must be given to an individual employee's unique circumstances, in general terms, similar misconduct/performance must result in similar disciplinary action being taken.
In instances where employees of different business units are involved in a common incident (or matters arising as a result of an incident) a manager from each business unit will jointly conduct all proceedings.
9.1.4 Impartiality
Where disciplinary action is taken, an employee may feel animosity towards the manager carrying out the disciplinary procedures. Disciplinary action must therefore be conducted in a professional and objective manner to minimise the likelihood of hostility.
9.2. Warnings
Warnings follow either an investigation for misconduct, or the identification of poor performance. The principal aim of a formal warning is to improve the performance/behaviour of the employee.
Disciplinary action must be initiated in the following circumstances:
(a) Where an employee's performance does not meet acceptable standards following informal counselling and appropriate assistance.
(b) Where behaviour of an employee is unacceptable, for example:
• an action that breaches the terms and conditions of employment;
• a breach of organisational policies/instructions; or
• a breach of the Code of Ethics for the South Australian Public Sector.
There are three types of warnings:
(a) verbal warning;
(b) written warning; and
(c) final written warning.
N.B: Verbal warning for poor performance must be preceded by informal counselling. Written warning for poor performance must be preceded by formal counselling. An investigation would not normally be necessary for poor performance, as the performance development process should normally provide all the evidence of ongoing poor performance.
9.3. Verbal warning
The purpose of a verbal warning is to let the employee know that his or her performance/conduct is not appropriate and needs to be corrected.
Good cause for a verbal warning exists for a first instance of minor misconduct. Some examples of behaviour that may warrant a verbal warning include:
• minor lapses in time keeping, e.g. arriving late to work;
• an emerging pattern of absenteeism;
• an emerging pattern of poor productivity, quality and timeliness of work;
• excessive socialising with fellow employees or the public while rostered on active duty;
• unexplained absences from the work area;
• minor misconduct such as swearing (i.e. use of profanities to other employees, managers or the public) and horseplay (i.e. play fighting); and
• minor breaches of occupational health and safety and/or safe work procedures.
It is essential for a verbal warning to be handled sensitively. The manager must show appropriate concern for the employee's self-esteem. This is important where the employee has revealed difficult personal problems as the cause of the breach.
9.4. Written warnings
The purpose of this warning is to encourage the employee to take corrective action before a final written warning is necessary.
A written warning would generally be issued in accordance with the outcome of a disciplinary interview.
Good cause to issue a written warning exists when:
• poor performance continues following informal counselling with the appropriate follow-up action, and a verbal warning;
• a further and/or similar instance of misconduct has occurred following a verbal warning; or
• where an instance of misconduct is sufficiently serious to justify going straight to a written warning.
As a general rule, previous written warnings can only be taken into consideration in determining the appropriate level of further disciplinary action if they have been issued in the last twelve months. An exception would be if there is an ongoing pattern of misconduct/poor performance.
9.5. Final written warning
A final written warning aims to encourage the employee to take corrective action before he or she is dismissed.
Good cause to issue a final written warning exists when:
• poor performance continues following a written warning;
• a further and/or similar instance of misconduct has occurred following a written warning; or
• where an instance of misconduct is sufficiently serious to justify going straight to a final written warning.
Some examples of a first instance of misconduct that may warrant a written warning (including a final written warning) are as follows:
• verbal abuse of other employees;
• horseplay, i.e. play fighting;
• breaches of organisational policy;
• breaches of occupational health and safety and/or safe working procedures;
• failure to take due care of TransAdelaide property, eg misplacing equipment;
• petty pilfering; and
• undertaking outside employment without prior permission.
Some examples of repeated misconduct following verbal warning that may warrant written warning (including a final written warning) are as follows:
• a continual pattern of lateness;
• excessive unexplained absenteeism;
• minor misconduct such as swearing (i.e. use of profanities to other employees, managers or the public);
• excessive socialising while rostered on active duty; and
• extensive unexplained absences from the work area.
As a general rule, a final written warning remains valid for a period of twenty-four months.” 27
[65] Clause 9.6 of the Discipline Procedure requires that there be a discipline interview with the employee concerned to outline the findings of the investigation, the relevant mitigating circumstances and to provide a further opportunity for the employee to raise any responses to the investigation, other matters that should bear upon the proposed disciplinary action. The employee concerned is to be given notice of this meeting including full particulars of the findings of the investigation and the purpose of the meeting.
[66] The Delegate then determines the disciplinary outcome.
Grievance Procedure
[67] The relevant Internal Grievance policy 28 is a DPTI document and it provides as follows:
“Employment: Formal, Internal Grievance
Employees may lodge a formal written internal grievance where:
• informal attempts to resolve the grievance have failed
• the grievance involves serious matters and informal resolution could compromise the rights of the parties involved
• where the complainant's preferred course of action is to lodge a formal grievance.
A Public Sector Act employee aggrieved by an employment decision that directly affects them may apply for an internal review or external review of the decision. Note that time limits apply to the lodgement of internal and external reviews.
How to initiate a formal internal grievance
Formal grievances, including an application for an internal review, must be forwarded in an envelope marked ‘private and confidential’ and addressed to one of the following people:
• Chief Executive
• Chief Officers (i.e. Chief Corporate Officer, Chief Operating Officer, Chief Development Officer)
• General Manager People and Performance.
The following details should be included:
• the aggrieved employee's name and work location
• a description of the decision, behaviour or action that is the subject of the grievance, including times and locations if relevant
• name(s) of any decision maker(s)
• name(s) of any other relevant p arty or parties
• any previous action taken to resolve the grievance
• what outcome is being sought through this formal process.
On receipt of a formal written internal grievance, the delegate will consider the grievance and if appropriate, initiate an investigation of the grievance.
Outcomes of the formal grievance process may include, but not limited to:
• confirmation of the original decision
• withdrawal or amendment of the original decision
• training or professional counselling
• conciliation/mediation by an independent and impartial third party - provided all parties to the grievance agree to work towards a mutually acceptable resolution
• a copy of the agreed outcomes to be placed on the personal file of the respondent
• disciplinary action against the respondent
• a reprimand placed on the personal file of the respondent.
If a grievance is found to be frivolous, vexatious or malicious, disciplinary action may be taken against the complainant.”
[68] I observe that Mr Evans is not a “Public Sector Act” 29 employee as contemplated in the policy, but the balance of the document applies to his employment.
The Appeal Agreement
[69] The Appeal Agreement document, that was provided with other material by Mr Nikoloski to Mr Evans as part of dealing with the Applicant’s grievance, is an outdated document from 1993 that was issued by a predecessor to the Rail Commissioner and refers to Awards, positions and legislation that have been replaced or no longer exist. This Agreement purports to outline and consolidate what was at the time existing awards/agreement provisions providing for hearing appeals in relation to provisional promotion, position classification and disciplinary matters. It also appears to be part of a guide to Personnel Policies and Procedures issued by the then State Transport Authority of SA (STA), a predecessor to the Rail Commissioner.
[70] Applying the Appeal Agreement in the contemporary setting, and allowing for successor organisations and award coverage, it is apparent that there are three parts to the appeal arrangements. Firstly, procedures in Part 1 applying to employees and positions covered by the “STA Salaried Officers’ Award” that provides appeals for provisional promotions, classification decisions and disciplinary action. Part 1 establishes an Appeal Board or Board of Reference, comprising the Deputy Industrial Registrar 30 as Chairperson and nominees from the State Transport Authority and the relevant Union respectively. Further, there are procedures in place for each type of appeal including when the decision of the Board will be taken to be a binding decision or a recommendation – linked to the salary level of the Salaried Officer.
[71] Having regard to the nature of the stated coverage and the history of awards and agreements within the predecessor employers, it is apparent that Tram Operators such as Mr Evans are not engaged under Awards or Agreements that have replaced the coverage of the State Transport Authority of South Australia, Salaried Officers' Award 1980. 31 I do not consider that Part 1 of the Appeal Agreements document is relevant in this matter.
[72] Part 2 of the Appeal Agreement document is stated to apply to employees and positions covered by the “STA of SA, Traffic Operating, Permanent Way, Workshops, Miscellaneous, and Suburban Train Driving Grades Award, 1988” – the Rail Grades Award. This Award of the Australian Conciliation and Arbitration Commission applied to the STA, various unions and employees whose classifications were specified in the award. None of these classifications comprehend Tram Operators.
[73] The STA operated, at the time, a much smaller scale of tram operations than at present and employment in this work has been covered by various industrial instruments over time including:
• State Transport Authority of South Australia Bus and Tramway Operations Interim Award, 1989.
• The South Australian Tramway and Omnibus Award, 1963, Section II - Non-Traffic.
• The South Australian Tramway and Omnibus Award, 1981.
• State Transport Authority of South Australia and ATMOEA (SA Branch) Enterprise Bargaining (Interim) Consent Award No. 2, 1993.
• State Transport Authority of South Australia and the Australian Rail, Tram and Bus Industry Union Enterprise Bargaining Agreement, 1993.
• The Tramway and Omnibus Non-Traffic Wage Rates Award, 1967. 32
[74] In 1995, the TransAdelaide Bus and Tram Operators Paid Rates Award 1995 superseded each of the above awards. 33 I also observe that this paid rates award contained34 its own grievance procedure and appeal process that involved the Depot Manager or Delegate, rather than an appeal akin to that provided by the Appeal Agreement.
[75] It is evident that the Tram operations have never been covered by the Rail Grades Award and that award coverage of the Rail Grades and Tram Operators has been bifurcated well before 1988. This is reinforced by the fact that 2018 EA cites the Passenger Vehicle Transportation Award 2010 35 as being the applicable modern award, rather than the Rail Industry Award 2010 (the Rail Award). The Rail Award also excludes from its coverage, employer and employees “engaged in the provision of light rail, monorail or tram services”.36
[76] I also note that the Appeal Agreement is expressly referred to in the Enterprise Agreement 37 applicable to many of the occupations previously covered by the Rail Grades Award and is not referenced in the 2018 EA applicable to Mr Evans.
[77] As outlined in the earlier chronology, the coverage of the Appeal Agreement was touched upon on the July 2019 FWC Decision. Referred to in that Decision as a “Guide”, the Commission found:
“The internal appeal process
[172] I am advised by both parties that there is a Guide in place which provides an avenue of appeal from any final disciplinary decision of the Delegate that involves the imposition of a sanction. Although tram employees, such as the Worker, do not fall within its scope, it has been applied administratively to such employees by the Rail Commissioner.
[173] The ARTBIU contend that the internal appeal is not relevant to this dispute as there is no absolute right to access the process and, in any event, is not presently available to the Worker. Further, it suggests that the appeal process is about the merits of the matter, not about the process and its adherence to the relevant principles required by clause 20.8 of the EA. The ARTBIU also notes that whilst the appeal is not relevant, during such an appeal process any documents connected to the matter would be provided to the employee under the terms of the Guide.
[174] The Rail Commissioner contends that the internal appeal is applied administratively and that it provides a safety net for employees, including the capacity to deal with an injustice from a perceived failure of natural justice and procedural fairness. The Rail Commissioner also contends, in effect, that the existence of the internal appeal means that this application is premature as that appeal forms part of the process and is capable of dealing with any procedural or natural justice deficiencies. Further, it contends that if the internal appeal guideline is not relevant, then all other policy considerations should also be considered to be irrelevant.
[175] Whilst the potential for an internal appeal is relevant to the present consideration, I do not consider that it impacts upon the determination of this matter, given the basis upon which any internal review might operate and the terms of the EA. That is, I accept that the Guide appears to contemplate an appeal about the disciplinary decision more generally, including issues of procedural fairness and natural justice matters. However, it is an appeal of a final decision that has already been made and clause 20.8 of the EA requires the relevant principles to be applied “at all times” in the disciplinary process. Further, there is also no absolute right to such an appeal and it may not be available to the Worker, depending upon the outcomes determined by the Delegate. In these circumstances, the existence of the internal appeal does not in any way detract from the obligation to apply the principles required by clause 20.8 of the EA to the decision making process of the Delegate.”
[78] As a result, the coverage of the Appeal Agreement for Tram Operators was not decisive, and the issue was not finally determined by the Commission in the July 2019 FWC Decision. Rather, the matter proceeded on the apparently common position that the Agreement did not provide a right of appeal.
[79] However, given the above antecedence of the 2018 EA and the other instruments, it is reasonably apparent that the terms of the Appeal Agreement have indeed never provided a right of appeal to Tram Operators and the presumption made in the July 2019 FWC Decision was correct.
[80] The evidence reveals the following about how the Appeal Agreement has been applied to Tram Operators:
• There have been five occasions in recent years where the Appeal Agreement process has been utilised for Tram Operators, including at least two involving Mr Evans.
• These appeals involved two employees prior to the events leading to the present application.
• Mr Evans had in 2014 exercised an appeal using the procedures in the Appeal Agreement associated with leaving a tram unattended and the outcome of the Appeal Board, to reduce a written warning to a lesser disciplinary outcome, had been applied by the Rail Commissioner.
• The Rail Commissioner had previously adopted majority outcomes of the Appeal Board.
• The Rail Commissioner has on one occasion, probably after the events leading to this application, applied a lesser disciplinary outcome (no further action) when the Appeal Board outcome was that a managerial counselling be provided.
• At least until after the Outcomes Report was provided, the Rail Commissioner did not expressly refer to the process under the Appeal Agreement as being undertaken as an investigation forming part of the grievance process. However, I do note that in describing why Mr Evans would not be provided with some documents, Mr Nikoloski referred to the “panel” acting like a new delegate that “investigates” the process itself. 38
[81] The Rail Grades part of the Appeal Agreement also establishes a Board largely constituted in the same manner as Part 1. It also establishes promotion appeals, and in relation to discipline appeals provides as follows:
“Discipline | 2.3 | Guidelines covering appeals against disciplinary action are as follows: |
Eligibility & Right of Appeal | 2.3.1 | An employee may appeal to the Board subject to • Membership of a participating Union as above • a penalty having been imposed and placed on their personal record resulting from disciplinary action |
Lodgement of Appeal | 2.3.2 | An appeal against disciplinary action may be lodged with the Secretary of the Board as follows • on "Notice of Disciplinary Appeal" form • within 7 days after the employee has received written notice of the disciplinary decision • any case for extension of lodgement ·time must be referred to the Chairperson |
Presentation of Case | 2.3.3 | The STA and the appellant • shall each present their case • shall each have the right of reply • may be represented by an STA nominee/ a Union nominee as required |
Provision of Documents to Appellant | 2.3.4 | On application, an appellant shall be entitled to be supplied, at no cost, with copies of any documents connected with the incident or imposition under appeal, at least 7 days before the hearing 39 |
[82] I observe that the Rail Commissioner does not limit access to such appeals based upon union membership, presumably in recognition of the implications of the FW Act regarding discrimination on that ground.
[83] The General provisions in Part 3 of the Appeal Agreement, which applies to the Rail Grades appeals, also provides as follows:
“GENERAL PROVISIONS 3
Rights of Appeal | 3.1 | The Secretary shall, when acknowledging a provisional or disciplinary appeal, also provide the appellant with a notice of rights to appeal |
Conduct of Hearings | 3.2 | Rail Grades Appeal, hearings shall be conducted as follows • the appeal shall be hearing within 30 days of appeal period closing date • the appellant shall be given at least 7 days notice of the appeal hearing • the onus is on the appellant to prove grounds on which their case relies • all appellants and promotee/s shall be heard in person by the Board • the Board, whilst observing rules of natural justice, may determine its own procedures, inform itself on any matter within its judicial entitlement, but shall not consider any matter not having been disclosed in evidence • the Board may request any document, exhibit, or the employee's written case of argument for the appeal, and may also request any person to appear and give evidence as may be required |
Withdrawal of Appeal | 3.3 | An appellant may withdraw an appeal, with confirmation in writing, at any time before or during the hearing. Once withdrawn, an appeal will not be re-instated |
Decision of the Board | 3.4 | Board decisions shall be determined as follows • each Board member shall have one vote • the majority Board decision shall be final • the Chairperson shall convey the decision in writing to the General Mgr • the General Mgr will then notify the decision to the parties to the appeal • if requested, the Chairperson shall give reasons for the decision to any party to the appeal 40” |
[84] Should Parts 2 and 3 apply to the appeal by Mr Evans, it would be clear that the majority decision of the Board would be final. Given the context of the Appeal Agreement, this is likely to mean that the decision would be binding upon the Rail Commissioner and would not be a recommendation.
[85] However, the Appeal Agreement did not, according to its own terms, apply to employees in Mr Evans’ occupation. Rather, the Rail Commissioner has made the Appeal Agreement process available to Tram Operators, including Mr Evans, and I will deal with the consequences of doing so in terms of the obligations arising under clause 20.8 of the 2018 EA shortly.
5. The approach to be applied to determining the proper application of an enterprise agreement
[86] Several Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited41 (AMWU v Berri) and I do not propose to set out those principles in this decision. I have however applied them to this matter.
[87] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene42 (WorkPac) also provided the following convenient summary of the required approach:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”43 (citations omitted)
[88] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the EA based upon the language and terms of the agreement, when read as a whole, and considered having regard to its context and purpose.
[89] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.44 Rather, the Commission is determining the proper application of the EA in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.45
[90] Given the narrower basis upon which Mr Evans ultimately advanced his case and the findings that follow, it is not necessary for me to deal with the jurisdictional objections raised by the Rail Commissioner.
6. The application of clause 20.8 to the dispute
[91] Clause 20.8 has been set out earlier in this decision. The parties have not referred to any other provisions of the 2018 EA that shed any light on the provision or assist with its application, and none appears to do so.
[92] In the July 2019 FWC Decision, I comprehensively considered the import of clause 20.8 of the 2018 Agreement. I do not intend to repeat all of that discussion and what follows should be read in the context of paras. [113] to [128] of that Decision, which I adopt.
[93] In Coutts v Close46 (Coutts) the Federal Court set out a useful summary of the concepts of procedural fairness and natural justice in the following terms:
“114 Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
115 In some circumstances, procedural fairness may also require the decision-maker to disclose to the affected person information provided to the decision-maker by a third party which is relevant to the matters in issue even though the decision-maker says that the information was not taken into account in reaching an adverse decision (see in particular Applicant VEAL). As Brennan J commented in Kioa v West at 629:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.” (emphasis in original)
[94] Further, in Coutts, after discussing the circumstances of that case, the Court stated:
“116 (…)Although the authorities generally refer to the significance of adverse material not being disclosed, the failure to disclose exculpatory material may in appropriate circumstances constitute procedural unfairness (see, for example, Shields v Overland (2009) 26 VR 303 at [109] per Kyrou J where emphasis was placed on the situation where a decision-maker has exclusive knowledge of specific information).
117 In my view, these principles need to be balanced with the well-established rule that there is no obligation to disclose the decision-maker’s deliberative processes or proposed conclusions (see Alphaone at 590-591 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J). As the High Court explained in SZBEL at 162, procedural fairness ordinarily requires “the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (citing Alphaone at 32, emphasis omitted).
118 Further, in my opinion, the general requirement that adverse material which is credible, relevant and significant to the decision to be made does not mean that a decision-maker must always disclose verbatim copies of material to be considered. In some circumstances, it is sufficient if the affected person is informed of the gravamen or substance of the issue. The point is illustrated by Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres StraitIslander Affairs (2000) 103 FCR 539. In that case, Merkel J rejected an argument that the Minister had denied the Pilbara Land Council of procedural fairness in not providing the Council an opportunity to deal with adverse observations made by an assessment team in a report to the Minister prior to the Minister deciding not to recognise the Council as the representative body for the purposes of native title legislation. At [70], Merkel J stated the general principle as follows (omitting case references):
While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision-maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it…It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”….
119 In Pilbara, Merkel J held that there was no obligation to disclose the internal assessment team report because it did not raise any new matters or provide any obviously unnatural responses to, or evaluations of, matters that had previously been raised with the Land Council. Justice Merkel applied the same principle in Walton at 357, where his Honour also added at [70] that, in the particular circumstances, there was no procedural unfairness in not disclosing to the affected person information “which was not material or adverse to his interests”.
120 It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (emphasis added).”
[95] The rule against bias is one of the two major elements of natural justice. Although initially applied to Courts and Judges,47 it is now well recognised as being a part of administrative law and applicable to decision-makers in that context.
[96] The practical application of the rule has been summarised by Groves48 in the following terms:
“Actual v Apprehended Bias
Bias may take many different forms but the main distinction is between actual and apprehended bias. A claim of actual bias requires proof that the decision-maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand. A claim of apprehended bias requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.
These differences between actual and apprehended bias have several important consequences. Each form of bias is assessed from a different perspective. Actual bias is assessed by reference to conclusions that may be reasonably drawn from evidence about the actual views and behaviour of the decision-maker. Apprehended bias is assessed objectively, by reference to conclusions that may be reasonably drawn about what an observer might conclude about the possible views and behaviour of the decision-maker.Each form of bias also requires differing standards of evidence. A claim of actual bias requires clear and direct evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other such equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy. A claim of apprehended bias requires considerably less evidence. A court need only be satisfied that a fair minded and informed observer might conclude there was a real possibility that the decision-maker was not impartial.” (references and page numbers omitted)
[97] In Coutts the Court dealt with the concept of apprehended bias in the following terms:
“97 The test for apprehended bias in the context of administrative decision-making in Australia is now well-established. That test is reflected in the following passage from the leading decision in Ebner v Official Trustee (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ (Ebner) (omitting citations):
…the governing principle is that, subject to qualifications relating to waiver…or necessity…, a [decision-maker] is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide.
98 Other relevant principles established by Ebner may be summarised as follows:
(a) if the decision-maker has determined the matter, the test is one which requires no conclusion about what factors actually influenced the outcome and there is no need to enquire into the actual thought processes of the decision-maker;
(b) application of the apprehension of bias principle involves the following two steps. First, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second step is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
99 It is also now generally accepted that a reasonable apprehension of bias should be firmly established and not lightly concluded: see The Angliss Group at 553-554 and Laws vAustralian Broadcasting Tribunal (1990) 170 CLR 70 at 100. Furthermore, the application of the apprehension of bias principle needs to take into account such matters as the role and functions of the person against whom the allegation is directed, as well as the nature of the power being exercised. Although the apprehended bias rule is expressed in similar terms in cases involving courts or quasi-judicial tribunals, as well as administrative decision-makers, it is well recognised that the application of the relevant principles may require appropriate adaptation in the circumstances of administrative decision-makers exercising statutory powers (see Ebner at [4] and Jia at [61]-[63] and [99] per Gleeson CJ and Gummow J).”
[98] The application of natural justice and procedural fairness in the present context is not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise49 and it is the avoidance of practical injustice that is being sought. This does not diminish the importance of the principles but rather clarifies that it is not for the Commission to decide, in this case, whether the disciplinary decision (outcome) itself was unfair, but rather whether the process that was followed in relation to Mr Evans was in accordance with the principles.
[99] Against that background it is appropriate to consider the issues arising from the main propositions advanced by Mr Evans and the Rail Commissioner in this matter.
The outcome of the Appeal Board
[100] I have earlier set out the conclusions of the Appeal Board. There was conflicting evidence between Mr Matcham and Mr Phillips about whether the outcome was intended to be a binding decision or a recommendation. I have dealt with the status of the Appeal Agreement earlier in this decision and the subjective views of those involved cannot be determinative.
[101] However, what the Appeal Report objectively intended as its decision is also somewhat unclear. That is, a determination is made to allow the appeal and to discharge the decision of the delegate. The Board then recommends that Mr Evans be issued with a verbal warning.
[102] When read as a whole, the apparent intention of the Appeal Report was to confirm the majority view that “in the somewhat unusual combination of circumstances, a verbal warning was an appropriate penalty.” That is, leaving aside the actual status and legal import of the Appeal Report – which are matters for the Commission to determine, the outcome of the Appeal Board was intended to be that Mr Evans would be issued with a verbal warning in lieu of the written warning.
The import of the Appeal Agreement for Mr Evans
[103] I have earlier determined that the Appeal Agreement itself did not provide a right for Mr Evans to have an appeal conducted under that procedure. That is, he was not covered by any of the parts of the agreement. Further, there is no general right of appeal for employees who are not covered by the relevant awards (or their successors), under that document.
[104] There is also no right established by the 2018 EA, or any of the other instruments and polices before the Commission, for Tram Operators such as Mr Evans to access the Appeal Agreement.
[105] As a result, it is evident that the Rail Commissioner was not obliged to make an appeal available using the Appeal Agreement to Mr Evans. It did so, in effect, administratively by arranging for the Appeal Board to hear the appeal in response to his grievance about the written warning.
The consequences of how the Appeal Agreement process was utilised in this case
[106] The substance of Mr Evans’ case in this regard is that irrespective of the status of the Appeal Agreement and Appeal Report, the outcome determined by the Appeal Panel should have been applied by the Rail Commissioner. He does so on the following basis:
• The Rail Commissioner had applied the Appeal Board outcomes in the past, including for himself, and the status quo, or custom and practice, should have continued.
• The Appeal Agreement had been supplied by the Rail Commissioner and it was a reasonable expectation that its terms, including that the majority decision would be implemented, would be applied. This was reinforced by statements made by Mr Nikoloski that referred to the process as being an “appeal” and that the Board would be making the” decision” on the merit of the matter.
• He had put his faith in the process established by the Rail Commissioner, and it was not appropriate that the employer purported to change the rules after the outcome was determined by the Appeal Board.
• In the absence of proper access to the Appeal Agreement process, there was no right of appeal to an independent authority for Tram Operators.
[107] The Rail Commissioner contends that there was no established custom and practice and that it was always able to determine whether to accept or reject the outcome of the Appeal Board in respect to Tram Operators. The Rail Commissioner also contends that no enforceable expectation was created by supplying the Appeal Document or its subsequent actions, and that none of the concerns raised by Mr Evans involve legitimate matters of procedural fairness or natural justice or any actual consequence.
[108] The reality of what occurred is evident from the chronology of events set out earlier in this decision and the findings made above. The Rail Commissioner has for some years provided access for Tram Operators to the processes established by the Appeal Agreement without any apparent consideration of the basis for that approach. It did not have an obligation to do so, but probably in light of the fact that other employees in similar occupations (rail employees on the train network) had that right, it in practice extended that access to the Tram Operators. Without necessarily making any decision or announcement to do so, it in effect also applied the Appeal Agreement to the Tram Operators largely as it had been utilised for the Rail employees. The processes were described as being an appeal and the outcomes of the Appeal Board were treated in the same manner.
[109] There were no express assurances given to Mr Evans about the status of the Appeal Board outcome and whether any such outcome would be accepted by the Rail Commissioner; but it was at the time that the process was established in relation to the 7 May 2019 incident, treated as an appeal, in effect, under the Appeal Agreement. However, between the time of its establishment and when Ms Alford made the final decision, the proceedings leading to the July 2019 FWC Decision had revealed that Tram Operators were probably not entitled to access the Appeal Agreement process. Given that revelation, the Rail Commissioner subsequently considered that the Appeal Board process, in the case of a Tram Operator, should be treated as being an investigation under the grievance procedure. It has done so without any advice to those involved, including the Appeal Board and Mr Evans, or any change in policy or other documentation.
[110] Although perhaps unusual, I accept that the Rail Commissioner is able to utilise the Appeal Board in that manner under the relevant procedure and policy. That is, to have the issue “investigated” by an Appeal Board process as there is no apparent limitation on how the Delegate might, if appropriate, initiate an investigation of the grievance. However, I have serious misgivings about the sequence of the above events. At least from the point of view of the perception of fairness, this leaves much to be desired.
[111] Notwithstanding the above, the question remains whether this leads to any denial of the procedural fairness or nature justice required by clause 20.8 of the 2018 EA.
[112] In many respects, organising the Appeal Board process positively contributed to procedural fairness and natural justice to Mr Evans including by giving Mr Evans a further opportunity to raise his concerns about the initial decision made by Mr Stopp; to further emphasise the mitigating factors and circumstances at the time, and to have three experienced people, who were new to his grievance, review and advise the Rail Commissioner about the appropriate outcome. I observe that some, but not all, of this benefit would have been provided by conducting any form of proper independent investigation.
[113] Further, the Rail Commissioner was, for reasons previously outlined, not obliged to provide Mr Evans with access to the Appeal Board process and at least according to the terms of the Appeal Agreement, was not obliged to accept the outcome given its lack of coverage of Tram Operators. There is also no indication in any of the polices or procedures, or any of the documentation that is presently before the Commission, that would require that result.
[114] There is also no indication that dealing with the grievance through the Appeal Board denied Mr Evans the opportunity to take other action or that his approach would have been any different if another form of “investigation” had been conducted.
[115] However, the process was established as an appeal and all of those involved in the process understood that it was an appeal, ostensibly under the Appeal Agreement. When Mr Evans and others used the Appeal Board process previously, the outcomes were accepted and applied by the Rail Commissioner, at least until the time of the events leading to this application. The question remains whether this led to an enforceable expectation that the outcome would be applied and/or to any practical injustice within the scope of this matter.
[116] I do not consider that the previous use of the Appeal Agreement for Mr Evans and other Tram Operators, or the decision to provide that process to deal with Mr Evan’s grievance, created an enforceable right to do so. Further, even if that did apply, the Appeal Agreement taken at its highest would require that the Rail Commissioner implement the outcome of the Appeal Board only in relation to Salaried employees (under the contemporary equivalent of level 8 of the relevant Award) and the Rail Grades employees, neither of which includes employees such as Mr Evans.
[117] To the extent that the circumstances of this matter more generally might be said to have led to the creation of an enforceable expectation that the Appeal Agreement, in effect as it applied to the Rail Grades, would be followed in relation to Mr Evan’s grievance, Mr Nikoloski did make statements about the Appeal Board making the decision on the merit of the appeal. Whilst directed at a discussion about access to documents, these were in retrospect unhelpful and may have led to a belief by Mr Evans that the Appeal Board would in fact decide the outcome rather than make a recommendation to the final Delegate. However, there is nothing in the documentation provided to Mr Evans, or in the statements made by Mr Nikoloski, that state that any “decision” of the Board would necessarily be applied. Further, Salemi v MacKellar (Salemi)50is authority which suggests that statements of policy as a rule do not create legal obligations. Although decided in a different context, this approach would appear to hold true for statements of the kind under consideration here. Given the context within which the Appeal Agreement was provided to Mr Evans and the statements made about the appeal process by Mr Nikoloski, I consider that those statements were at their very highest, in effect, a statement of policy for present purposes. As a result, I also do not consider that these statements created an enforceable legal right for Mr Evans to have the Appeal outcome applied, or an obligation upon the Rail Commissioner to implement that decision.
[118] For reasons already set out, the fact that the previous outcome of Appeal Board process involving Mr Evans was applied by the Rail Commission, without more, also cannot create an enforceable obligation to do so each time. Importantly, based upon all of the material that is before the Commission, there was no industrial instrument, policy, contractual or other commitment obliging the Rail Commissioner to adopt and apply the Appeal outcome in the case of Mr Evans or Tram Operators more generally.
[119] What this means is that the lack of clarity around the context in which the Appeal Agreement was to be applied to Mr Evans was regrettable and should be corrected for future matters of this kind. Further, the decision to treat the Appeal process and outcome as an investigation after the event and without notice or due process in that regard, was perhaps sharp and industrially problematic. However, I cannot discern any practical injustice given that the Appeal Agreement does not cover Mr Evans and would not in any event require the Rail Commissioner to adopt the outcome given the nature of his occupation. The investigation of the grievance through the use of the Appeal Board process is also permissible as a matter of the Delegate’s discretion under the Grievance Procedure. Further, for reasons set out above, the process surrounding the appeal itself has not led, in practice, to any denial of natural justice or procedural fairness for Mr Evans.
Other issues of alleged bias and procedurally unfair process
[120] I have carefully considered the other issues raised by Mr Evans that he relies upon to demonstrate that the written warning should be overturned on natural justice or procedural fairness grounds. For reasons which follow, I do not consider that any of these are such that the Rail Commissioner has not acted in accordance with clause 20.8 of the 2018 EA.
[121] The decisions made by the Rail Commissioner, including the final decision of Ms Alford, relied in part on the earlier disciplinary matters involving Mr Evans. Mr Evans contends that this was not consistent with clause 9.4 of the Discipline Procedure – set out earlier in this Decision – that makes reference to taking into consideration previous written warnings if they have been issued in the last 12 months. The relevant part of clause 9.4 makes it clear that this is a general, rather than an absolute, rule and notes an exception “would be if there is an ongoing pattern of misconduct/poor performance. Although Mr Evans disputes the finding of misconduct, given the Rail Commissioner’s conclusions about these matters, it was not inconsistent or unfair to refer to the previous disciplinary matters in determining the appropriate level of further disciplinary action concerning the 7 May 2019 incident.
[122] The briefings provided to the Delegates did not make reference to the service commendations received by Mr Evans. However, Ms Alford had access to the Appeal Report and this expressly referred to the commendations. The evidence is also that Ms Alford considered the commendations but did not agree with the Appeal Panel that these, in effect, offset the disciplinary matters and that the employment history should not be reflected into the outcome. Although Mr Evans does not agree with how Ms Alford weighed these factors, there is no basis to suggest that any denial of natural justice or procedural fairness was involved.
[123] Mr Evans also criticised what he considered to be a number of incorrect assumptions made by Ms Alford in making the final decision. This included that Ms Alford assumed that there were passengers on the crossing when Mr Evans went through the red T light. It is evident that Ms Alford did not assume that there were passengers on the crossing; rather in considering the seriousness of the conduct she recognised that passengers could have been on the crossing and that this is part of the reasons that there are such strict rules about proceeding through red lights. This was an entirely proper approach. In relation to Ms Alford’s view that Mr Evans had shown a pattern of inattentiveness, this was contrary to the majority view of the Appeal Board but was open to her. Without a review of the substantive merit of the matter, which is beyond the present remit of the Commission, there is no basis to disturb the outcome on this ground.
[124] Mr Evans also contends that Ms Alford failed to properly consider the mitigating and circumstantial factors operating on the night in question. I accept that such factors were present at the time of the 7 May 2019 incident including the weather conditions, the fact that the signals were in safe mode, and the presence of the NOS. These and other factors were relevant to the assessment of the nature of the conduct and the proper disciplinary outcome. The evidence is that Ms Alford did consider the mitigating and circumstantial factors but formed a different view about their import than the Appeal Board. Reasonable minds might differ about how these factors are weighed into the final outcome; but again there is no basis to suggest that any denial of natural justice or procedural fairness was involved.
[125] Mr Evans also raises a series of concerns about the alleged bias of those involved in the Minute preparation and decision-making processes. I have earlier set out the sequence of events and the authorities touching upon how such issues should be treated in the present context. The evidence provided by Ms Hoste and Ms Franklin was not substantively challenged and as a result there is no basis to make findings of any alleged bias or improper conduct involving the interview and record. The grievances taken by Mr Evans about Ms Hoste, Ms Franklin and Mr Nikoloski were appropriately handled by the Rail Commissioner and given the nature of their involvement and the basis and timing of the grievances, which were largely about the actions taken in the process itself, I do not consider that there is any proper basis to attack their integrity or to suggest that any actual or apprehended bias was involved. I make the same finding in relation to Mr Stopp and Ms Alford.
Unreasonable decision
[126] Mr Evans also contends, in effect, that the decision made by the Rail Commissioner to confirm the written warning was so unreasonable that it was not consistent with clause 20.8 of the 2018 EA.
[127] In the July 2019 FWC Decision, I considered a similar proposition and observed:
“[162] Dearman v Dearman,51 as cited by the ARTBIU, does not stand for the claimed proposition. It is directed at the advantage (and disadvantage for appellant courts) in decision makers having heard the evidence of witnesses when assessing their credibility. It does not mean that a decision maker, particularly one making an administrative decision of the kind being considered here, cannot fairly reach conclusions based upon reports and materials obtained by others. I observe that whether those conclusions are correct, may be a different matter but that is beyond the scope of the present proceedings.
[163] The ARTBIU also relied upon the principles of “Wednesbury reasonableness” to impugn the process. In making an administrative decision, Wednesbury Unreasonableness will be found if the decision maker:
• takes into account factors that ought not to have been taken into account, or
• fails to take into account factors that ought to have been taken into account, or if
• the decision is so unreasonable that no reasonable authority would ever consider imposing it.52
[164] It is this latter aspect that the ARTBIU particularly emphasises in the present context.
[165] This principle has been incorporated into Australian administrative law, see for example Parramatta City Council v Pestell:
"If, in purporting to form its opinion, a (decision maker) has taken into account matters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought not to have considered, the opinion will not be regarded as validly formed. Even if the (decision maker) has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable (decision maker) could have formed it.”53
[166] A decision should not be framed as unreasonable simply because one party disagrees with the outcome. The unreasonableness is ideally found by reference to the statutory framework, or other legal principles, underpinning the decision making process, as explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002:
"As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence."54
[167] In Minister for Immigration and Citizenship v Li55 the High Court considered the standard of unreasonableness applicable to such decision-making and took a somewhat broader view. The majority,56 in considering the formulation of unreasonableness stated in Wednesbury, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”.57 Further, “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.58
[128] As stated earlier, reasonable minds might differ about the degree to which the mitigating and contextual factors apparently operating at the time of the 7 May 2019 incident should be weighed in determining the seriousness of the actual conduct and the appropriate disciplinary outcome. However, I do not consider that the Rail Commissioner’s decision lacks an evident and intelligible justification on that or any other basis. As a result, assuming that ‘Wednesbury unreasonableness’ is relevant to the assessment of procedural fairness or nature justice, it is not present in this matter.
[129] For reasons outlined above, I also do not consider that the process adopted by the Rail Commissioner represents unreasonableness that might lead to a finding that there has been a denial of natural justice or procedural fairness. This includes my view that there was nothing in the content of the Minute provided to Ms Alford that might provide legitimate concerns about the application of procedural fairness or nature justice to Mr Evans in the circumstances of this matter.
7. Conclusions and determination
[130] On balance, I do not consider that the Rail Commissioner has failed to apply the principles of natural justice or procedural fairness, including the right to representation, required by clause 20.8 of 2018 EA in relation to Mr Evans’ grievance against the written warning.
[131] Despite my concerns about how the process under the Appeal Agreement was described after the event, this did not involve a denial of natural justice or procedural fairness in the particular circumstances of this matter. Further, for reasons set out earlier in this decision, the actions of the Rail Commissioner also did not lead to practical injustice for Mr Evans related to the import of clause 20.8. Given the terms of the 2018 EA, and the relatively limited basis upon which this matter was ultimately argued, there is no basis for the Commission to intervene in the decision made by the Rail Commissioner.
[132] I consider this to be the proper application of the 2018 EA in the context of this dispute. I so determine.
[133] Given these conclusions and the basis of some of the findings made by the Commission, there are however some concluding observations that are in order.
[134] Commitments were made by the parties under another Enterprise Agreement 59 applicable to the Rail Commissioner, the RTBU and the rail employees, to review the Appeal Agreement. This is overdue and should be attended to by the relevant parties. Further, the Rail Commissioner should, after any appropriate consultation required, provide policy clarity about how investigations are to be carried out in relation to Tram Operators and others covered by the 2018 EA, and if the Appeal Board is to be used in that context, what the status of any outcome determined by the Board will be. This is, in effect, the second outcome sought by Mr Evans in this matter and there is much to recommend this course of action.
[135] I would also make it clear that given the scope of the present matter and the basis upon which this application was advanced, I have not considered the substantive merit of the May 2019 incident and associated warning beyond that necessary to deal with the requirements of clause 20.8 of the 2018 EA.
COMMISSIONER
Appearances:
W Evans on behalf M Evans, the Applicant.
D Nikoloski and A Calicchia for the Rail Commissioner.
Hearing details:
2020
Adelaide
30 January.
Printed by authority of the Commonwealth Government Printer
<AE428719 PR716240>
1 Transcript PN12 to PN21.
2 Clause 48.8 of the 2018 EA.
3 Transcript PN47.
4 Confirmed at Transcript PN65.
5 Confirmed – Transcript PN445, PN446 and PN456.
6 Attachment 7 to Exhibit R4.
7 Exhibit R2 at 13.
8 Attachment 5 to Exhibit A1.
9 Attachment 7 to Exhibit R4.
10 The transcript was not prepared by Mr Nikoloski.
11 Attachment 3 to Exhibit A1.
12 Attachment 9 to Exhibit R4.
13 Attachment 9 to Exhibit R4.
14 Attachment 14 to Exhibit A1.
15 Attachment 15 to Exhibit A1.
16 Attachment 17 to Exhibit A1.
17 Attachment 5 to Exhibit A1.
18 Attachment 5 to Exhibit A1.
19 Attachment 20 to Exhibit A1.
20 [2019] FWC 3944, issued 23 July 2019.
21 A distinction is drawn between employment in the Public Service and that in the broader Public Sector; although employment outside of the Public Service may be covered under Part 7 of PS Act through regulations – s.41 of the PS Act.
22 Drawn from the evidence of Mr Nikoloski – Paragraph 12 of Exhibit R4.
23 Document 1 attached to Exhibit R4.
24 Clause 6 of the procedure.
25 Document 1 attached to Exhibit R4.
26 Document 1 attached to Exhibit R4.
27 Document 1 attached to Exhibit R4.
28 Attachment 19 to Exhibit A1.
29 A distinction is drawn between employment in the Public Service and that in the broader Public Sector; although employment outside of the Public Service may be covered under Part 7 of PS Act through regulations – s.41 of the PS Act. The Appeal rights under the PS Act arise from s.61 and 62 and these do not apply to Rail Commissioner employees of the kind being considered here.
30 Of the then established Commission.
31 The Salaried Officers’ Award applied to Clerks, Office Assistants and Foreman/Supervisors but not to operational classifications such as Tram Operators.
32 Referenced in clause 5 of the TransAdelaide Bus and Tram Operators Paid Rates Award 1995. I observe that Mr Phillips, who was called by Mr Evans, accepted that Tram Operators were not covered by the STA Salaried Officers Award or the Rail Grades Award – transcript PN172.
33 TransAdelaide was a successor to the STA.
34 Clause 7.9.4 of the TransAdelaide Bus and Tram Operators Paid Rates Award 1995.
35 Clause 4.2(c) of the Passenger Vehicle Transportation Award 2010 includes coverage for electric tramway, monorail or light rail.
36 Clause 4.2 of the Rail Award.
37 Rail Commissioner Rail Operations Enterprise Agreement 2016 at clause 16.8.
38 Attachment 17 to Exhibit A1.
39 Document 2 attached to Exhibit R4.
40 Document 2 attached to Exhibit R4.
41 [2017] FWCFB 3005.
42 [2018] FCAFC 131.
43 Ibid at [197].
44 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].
45 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
46 [2014] FCA 19, per Griffiths J.
47 The approach is well summarised in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Kirby v Centro Properties Limited (No 2) (2011) 202 FCR 439.
48 Groves M, The Rule against Bias [2009] UMonashLRS 10.
49 Kioa (1985) 159 CLR 550, 622, [27] (Brennan J).
50 [1977] 137 CLR 396 per Barwick CJ at para 28.
51 Dearman v Dearman (1908) 7 CLR 549 at 551 and 553.
52 Adapted from Associated Provincial Picture Houses Pty Ltd v Wednesbury Corp, [1948] 1 KB 223, 229 (per Lord Greene MR).
53 (1972) 128 CLR 305 at 327 per Gibbs J.
54 (2003) 198 ALR 59 at [5].
55 (2013) 249 CLR 332.
56 Per Hayne, Kiefel and Bell JJ.
57 (2013) 249 CLR 332 at [68].
58 Ibid at [76]. See also the summary provided by the Full Federal Court in The Minister for Immigration v Eden (2016) 240 FCR 158 at [58] to [65] and how the concept was applied by the Commission in another context in Amie Mac [2015] FWC 774 at [90].
59 Rail Commissioner Rail Operations Enterprise Agreement 2016 at clause 16.8.
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