Mr Kevin Kingsley v KDR Victoria Pty Ltd T/A Yarra Trams
[2014] FWC 9371
•22 DECEMBER 2014
| [2014] FWC 9371 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kevin Kingsley
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2014/10909)
COMMISSIONER JOHNS | MELBOURNE, 22 DECEMBER 2014 |
Application for Relief of Unfair Dismissal - misconduct - termination at the initiative of the employer - valid reason for termination - serious risk to health and safety
Introduction
[1] On 16 July 2014 Kevin Kingsley (Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by KDR Victoria Pty Ltd (trading as Yarra Trams) (Employer/Respondent).
[2] On 29 July 2014 the Employer filed a response to the unfair dismissal application.
[3] On 18 August 2014 the unfair dismissal application was listed for conciliation before a Fair Work Commission (Commission) Conciliator, but remained unresolved at the end of the conciliation.
[4] Consequently the matter was listed for hearing.
Permission to be represented
[5] On 13 October 2014, the Commission sought a submission from the Applicant about whether the Commission should grant him permission to be represented by a paid agent. A determination of this issue was necessary to ensure that the manner in which the hearing was conducted was fair and just, Warrell v Commission. 1
[6] In deciding the question of permission to be represented, the Commission noted that an experienced industrial advocate represented the Respondent. Consequently, the Commission determined that allowing the Applicant to be represented by a paid agent would not be unfair taking into account fairness between the parties. Consequently, permission to be represented was granted to the Applicant pursuant to section 596(2)(c) of the FW Act.
Conference or Hearing
[7] On 13 October 2014, the Commission sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter.
[8] Taking account any differences in the circumstances of the parties and their wishes, and considering whether a hearing would be the most effective and efficient way to resolve the matter, on 13 October 2014, I decided to conduct a hearing.
[9] The unfair dismissal application was set down for a one-day hearing before the Commission in Melbourne on 22 October 2014.
[10] Following the receipt of oral evidence the parties, their representatives and I attended at the site where the accident (that resulted in the termination of the Applicant’s employment) occurred. This opportunity to view the area was of great benefit to me. It provided me with a better ability to comprehend the photos that were attached to the Applicant’s witness statement (Exhibit A1) 2 and Mr Grano’s witness statement (Exhibit R2).3 I was better able to observe how points work and to see the distance that the tram travelled when the Applicant continued to drive it after the points split.
The hearing
[11] At the hearing the Applicant was represented by Mr Garry Dircks of Just Relations. Mr Dircks called only the Applicant to give evidence on his own behalf.
[12] At the hearing the Respondent was represented by Mr Nicholas Barkatsas from the Victorian Employers’ Chamber of Commerce and Industry. Mr Barkatsas called two witnesses as follows:
● Allan Jones - Manager of Lines (Southbank Depot)
● Sam Grano - Team Manager, Drivers (Southbank Depot)
[1] On 29 October 2014 the parties both filed final written submissions.
Background
[2] The following matters were either common ground between the parties or not otherwise contested:
a) The Applicant commenced employment with the Respondent as a tram driver in April 2010. 4
b) The Applicant earned $1,521.82 gross per week. 5
c) Tram Drivers are required to follow Yarra Trams’ Rules and Procedures (the Rules). 6
d) On 31 July 2013 the Applicant attended Driver Refresher Training. 7
e) In late 2013 the Applicant attended a training session that was compulsory for all drivers on the roll-out of the new Rule Book in late 2013. 8
f) On 3 September 2013 (after attending the new Rule Book training) the Applicant completed an assessment. 9
g) On 24 May 2010 the Applicant missed the points at an intersection. 10 It resulted in probationary follow up.11
h) On 25 November 2011 the Applicant was involved in the derailment of a tram. There was a dispute about liability and the Applicant was not issued with a warning. 12
i) On 28 November 2011 the Applicant participated in further training in relation to points. 13
j) The Applicant received two written warnings in the 10 months prior to his dismissal as follows:
i. in October 2013 for alleged excessive sick days and for reporting late for work; 14 and
ii. in May 2014 in respect of absenteeism, customer complaints and punctuality. 15
a) On 10 June 2014 the Applicant was involved in an accident while he was driving a tram (June Accident) in which (to try to put it in neutral terms):
i. the tram the Applicant was driving “split the points”;
ii. the front and rear bogies ended up on two different sets of track.
iii. the front bogies of the tram proceeded on the wrong side of the track;
iv. there was caused around $100,000 damage to the tram and a traffic light (that the tram hit).
a) Following the June Accident the Applicant was suspended on pay while an investigation was conducted. 16
b) Mr Grano conducted the investigation. 17
c) On 12 June 2014 Mr Grano interviewed the Applicant. Notes of the interview were taken 18 which the Applicant does not dispute.19
d) Mr Grano completed his investigation and produced an ICAM Incident Investigation Report (ICAM). 20 Somewhat curiously on page 4 of the ICAM he states “[t]his investigation does not determine blame or liability”, however, on page 21 of the ICAM it recommends that the Applicant “face disciplinary action”. That is what then occurred.
e) On 3 July 2014 Mr Grano met with the Applicant to put the findings of the ICAM to him and that the Applicant had breached particular Rules. Notes of the interview were taken 21 which the Applicant does not dispute.
f) On 7 July 2014 Mr Grano compiled the ICAM and other relevant materials into an Investigation Report. 22
g) On 7 July 2014 Mr Grano provided Mr Jones with the Investigation Report. Mr Jones reviewed the Investigation Report, the ICAM and the Applicant’s personnel record and disciplinary history. 23
h) On 9 July 2014 Mr Jones wrote to the Applicant in the following terms,
… we believe that matter is very serious and we request your attendance at a disciplinary hearing on Tuesday, 15th July at 11 am. … You are able to arrange to have a support person with you. 24
i) On 15 July 2014 the Disciplinary Hearing was conducted. Mr Jones, Mr Grano, the Applicant and his support person, Mark Teasdale, attended the meeting. Notes of the interview were taken 25 which the Applicant does not dispute.26
j) The Respondent terminated the Applicant’s employment on 15 July 2014. 27
k) The reason for the dismissal related to the June Accident. 28
l) The letter of termination stated that,
The following confirms the outcome of our discussions … today … where a number of detailed allegations of misconduct and rule breaches were put to you and you were given an opportunity to respond. In summary the rule breaches were:
Travelling thought points
● Rule 24.1 a – stop tram in a position that allows Driver to accurately see the point’s blades.
● Rule 24.1 b – visually check that the point blade(s) are set for the correct direction and are fully across.
● Rule 24.1 d – immediately stop if the tram goes on the wrong track and notify the Fleet Operations Centre.
Termini
● Rule 25.2 a – stop tram at the compulsory stop marks in a position that allows Driver to accurately see the point blade(s).
● Rule 25.2 b – visually check that point blade(s) are set for the correct direction and are fully across.
Derailments & split points
● Rule 63.1 – if any wheels of a tram come off the rails, or either bogie takes the wrong track at the points; the Driver must stop the tram, notify the Fleet Operations Centre immediately and follow their instruction.
Bang-roading & reversing trams
● Rule 69.1 – Drivers must not bang-road a tram unless authorised by Fleet Operations Centre.
You were provided with union representation and given every opportunity to respond to these allegations; however you did not provide an acceptable explanation for your actions.
From the evidence available you disregarded the safety implications of working outside operational rules and procedures and your work history highlights a consistent failure to accept accountability regarding fault and take correction actions.
You have been given multiple opportunities to modify and correct your behaviour; unfortunately there has been no evidence improvement.
Your actions amount to a serious breach of your obligations as an employee and I have lost trust and confidence in you and your ability to modify your behaviour. Yarra Trams is of the view that your ongoing failure to comply with rules and your inability to correct your behaviour leaves Yarra Trams with no other alternatives that to terminate your contract of employment.
Your termination is effective from today, and you are to be paid four weeks in lieu of notice. All other unpaid wages and leave accruals will be paid into your current nominated Bank Account on the return of all company property.
As advised today, you may appeal this decision by making a request in writing to the Chief Executive Officer within 48 hours.
a) Notwithstanding that the Applicant’s employment was terminated for misconduct the Respondent made a payment to the Applicant of four weeks in lieu of notice.
[1] The most significant issue in dispute between the parties is whether the June Accident provided a valid reason for termination.
[2] The Respondent submitted that it was not an inadvertent mistake by the Applicant, or an error of judgment. It submitted that the “Applicant on four separate back-to-back breaches chose a course of conduct which breached four separate Rules…” 29 The Respondent says the Applicant’s actions constituted misconduct.
[3] The Applicant says the June Accident does not provide a valid reason for dismissal. 30 The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or be compensated.
Protection from Unfair Dismissal
[4] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal. The Respondent concedes this. 31
[5] The Commission will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.
Was the dismissal unfair?
[6] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Was the Applicant dismissed?
[7] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. The Respondent concedes this. 32
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[8] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). The Respondent is not a small business and the issue of compliance with the Code does not apply. The Respondent concedes this. 33
Was the dismissal a genuine redundancy?
[9] The Respondent does not submit that the Commission should dismiss the application because the dismissal was a case of genuine redundancy. 34
Harsh, unjust or unreasonable
[10] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether the Commission is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act.
[11] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in the often cited statement by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd. 35
[12] The Commission is under a duty to consider each of these criteria in reaching its conclusion. 36
[13] The Applicant submits the dismissal was harsh, unjust or unreasonable because:
a) there was no valid reason for dismissal. 37
b) the Applicant was not “appropriately” notified of the reason for dismissal. 38
c) the Applicant was not given a “proper” opportunity to respond to the reasons relied on for dismissal. 39
d) the Applicant received no prior warnings. 40
e) of the economic and personal circumstances resulting from the dismissal. 41
f) the outcome (the dismissal) was disproportionate to the gravity of the misconduct. 42
[1] The Respondent submits the dismissal was not harsh, unjust or unreasonable principally because the June Accident evidenced the Applicant’s back-to-back and separate breaches of the Rules and breaches of OHS and Rail Safety obligations that endangered him, passengers and members of the public. 43
[2] The Commission will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
[3] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 44 The reasons should be “sound, defensible and well founded”45 and should not be “capricious, fanciful, spiteful or prejudiced.”46
[4] The reason for termination relied upon by the Respondent is contained in the termination letter (set about above). Each of the referenced Rule breaches have usefully been grouped together by the Respondent 47 as follows:
a) Breach 1 – failure to stop the tram in a position that allowed the Applicant to accurately see the point’s blades (Rule 24(1)(a) and Rule 25(2)(a));
b) Breach 2 – consequently, the Applicant could not have been in a position to visually inspect the points as required (Rule 24(1)(b) and Rule 25(2)(b));
c) Breach 3 – proceeded to exit the terminus despite becoming aware the tram travelling down the wrong track (Rule 63 and Rule 24(1)(d); and
d) Breach 4 – consciously and deliberately decided to drive into oncoming traffic without OC authorisation (Rule 69).
[1] It is necessary to interrogate each breach advanced by the Respondent.
Breach 1
[2] The Respondent says the Applicant failed to stop the tram in a position that allowed him to accurately see the point’s blades.
[3] The Applicant denies any such failure. His consistent evidence is that he checked the points (see below in relation to Breach 2). If he did that, then he must have stopped the tram in a position that allowed him to accurately see the point’s blades.
[4] At the interview on 12 June 2014, conducted by Mr Grano, the Applicant stated (when asked if he cleared the points),
“I did.” 48
[5] In his evidence before the Commission the Applicant stated,
“I was past the points where I should have been.” 49
“I am clear that the tram was clear of the points but they did not set automatically.” 50
[6] At the interview on 3 July 2014, conducted by Mr Grano, the Applicant stated (when asked if he cleared the points),
“Yes, I did.” 51
Breach 2
[7] By reason of breach 1, the Respondent says the Applicant could not have been in a position to visually inspect the points as required.
[8] The Applicant denies any such failure.
[9] When first interviewed about the June Accident on the evening of the accident the Applicant told the relevant Officer, Dean Thompson “he (the Applicant) [had] looked down checking the points.” 52
[10] At the interview on 12 June 2014, conducted by Mr Grano, the Applicant stated (when asked if he visually checked the points),
“Yes, absolutely. I have been asking myself the same question over and over but I did. The lighting at that location is very bad and the W headlights do not provide much light either.” 53
[11] At the interview on 3 July 2014, conducted by Mr Grano, the Applicant stated (when asked if could see the points),
“Yes. Though the visibility is quite poor at that location and the lights on a W make it hard to see.” 54
[12] In relation to Breach 1 and Breach 2 the only person who can give direct evidence about what happened is the Applicant. He was the only person in the driver compartment at the time.
[13] Consistently the Applicant has maintained that he cleared the points and checked them. Of course the Applicant had a vested interest in maintaining that he did so. However, the Applicant presented as a witness of truth and as such the Commission is prepared to accept his evidence in respect of these matters.
[14] However, the Commission, as presently constituted, acknowledges that it is a problematic finding because it does not explain how the points sent the front bogie in one direction and the back bogie in another direction. The evidence of Yarra Trams employee, David Laird, during Mr Grano’s investigation was that,
“… the spring-loaded points [were found] to functioning correctly and [he] observed several trams going through these points with no incidents. R9 inspected the points and found them to be clean and dry. Conducted a function test and were functioning correctly. Several trams were observed using the terminus to ensure that points were working effectively.” 55
[15] As the Applicant’s representative noted,
“At the inspection it seemed intuitively unlikely that anything could hold the points open and therefore by deductive logic the Applicant must not have cleared the points and therefore be guilty of the first two claimed breaches.” 56
[16] I agree. The more logical explanation is the conclusion reached by the Respondent (i.e. that the Applicant did not clear the points and they did not spring load back to the correct position until after the then front bogie crossed them when the Applicant had driven back in the wrong direction).
[17] However, in giving the Applicant the benefit of the doubt, it necessarily follows that (because of the resulting accident) the Applicant’s checking of the points was inadequate. In a safety critical role, the inadequacy of this checking of the points was unacceptable.
[18] But, for present purposes, the Commission is satisfied that the Applicant did not engage in Breach 1 and Breach 2.
Breach 3
[19] The Respondent says the Applicant proceeded to exit the terminus despite becoming aware the tram travelling down the wrong track.
[20] The Applicant admits this.
[21] At the interview on 12 June 2014, conducted by Mr Grano, the Applicant stated,
“After that I … moved off and the tram turned onto the wrong side of the track” 57
[22] The Applicant also admitted to knowing the correct procedure. In his evidence before the Commission he stated,
“The practice is that if a tram goes [in the] wrong direction the driver should stop and notify fleet operations.” 58
[23] By reason of the Applicant’s admissions the Commission is satisfied that the Applicant breached Rule 63 and Rule 24(1)(d) in that, once he became aware that he was travelling in the wrong direction he did not immediately stop and notify Operations Centre. This act caused a serious risk to the health and safety of himself, other passengers (on other trams), pedestrians in the area and motorists.
Breach 4
[24] In relation to the allegation that the Applicant travelled in the wrong direction the Applicant has consistently admitted this conduct. It was conscious and deliberate conduct on his behalf.
[25] At the interview on 12 June 2014, conducted by Mr Grano, the Applicant stated,
“My initial thought was to stop the tram and change ends and drive back into the terminus, but I instead decided to bang road across the intersection. I didn’t realise at this point that the back wheels had gone in the opposite direction until it’s hit the poll.” 59
[26] At the interview on 15 July 2014 the Applicant said,
… once I realised the tram was heading in the wrong direction I should have stopped the tram and called Fleet. … it was a case of just not thinking right at the time … in my mind it was just a case of clearing the cross over, just clearing everything out of the way… 60
[27] By reason of the Applicant’s admissions the Commission is satisfied that the Applicant breached Rule 69; once he became aware that he was travelling in the wrong direction, he did not immediately stop and notify the Fleet Operations Centre. This act caused a serious risk to the health and safety of the Applicant, other passengers (on other trams), pedestrians in the area and motorists.
Consideration
[28] The Applicant drew the Commission’s attention to the decision in De Leon v Spice Temple Pty Ltd 61 and the quote of Deputy President Sams that, “misconduct … involves more than mere negligence, error of judgment or innocent mistake.
[29] While the Commission, as presently constituted, agrees with his Honour it is of no assistance to the Applicant in the present matter. For the reasons set out above the Commission is not satisfied that the Applicant’s conduct was merely negligent, an error of judgment or an innocent mistake. It was a conscious breach of the Rules knowingly made by the Applicant. It was misconduct.
[30] Consequently, the Commission, as presently constituted, finds there was a valid reason for the dismissal. In all the circumstances of this matter the valid reason was sound, well founded and defensible. 62
Notification of the valid reason - s.387(b)
[31] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 63 in explicit terms64 and in plain and clear terms.65 In Crozier v Palazzo Corporation Pty Ltd66 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 67
Consideration
[32] Having determined that there was a valid reason for termination it is necessary for the Commission to determine if the Applicant was notified of the same.
[33] The Applicant submits that he “was not appropriately notified of the reason for dismissal” 68.
[34] However, in the present matter the letter of termination followed a lengthy investigation in respect of which the Applicant was afforded every opportunity to participate. He did so participate at two interviews during the investigation and at the meeting on 15 July 2014. As such, the Applicant could not have been under any illusion about the matters under investigation or that his conduct on 10 June 2014 may lead to the termination of his employment.
[35] The letter of termination must be read in this context. In this regard the valid reason was communicated to the Applicant in advance of the decision to terminate and was in explicit, plain and clear terms. 69
[36] The Commission, as presently constituted, finds the Applicant was notified of the reason for the dismissal.
Opportunity to respond - s.387(c)
[37] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 70
[38] It was submitted on behalf of the Applicant that he was not given a “proper” opportunity to respond to the reasons relied on for dismissal. 71
[39] The Commission, as presently constituted, rejects this submission. As stated above the dismissal followed a lengthy investigation in respect of which the Applicant was afforded every opportunity to participate. He did so participate at two interviews during the investigation and at the meeting on 15 July 2014.
[40] The Commission, as presently constituted, finds the Applicant was given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[41] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[42] It is conceded by the Applicant that there was no refusal to allow a support person. 72 At the meeting on 3 July 2014 the Applicant was accompanied by Tram & Bus Division Union delegate John Anderson and at the meeting on 15 July 2014 by Divisional President Mark Teasdale.
Warnings regarding unsatisfactory performance - s.387(e)
[43] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 73
[44] Because the reason for termination in the present matter was not performance related (but related to the Applicant’s conduct) the issue of warnings does not arise. Section 387(e) of the FW Act is not relevant and the Commission is not required to make a finding in respect of it.
[45] Notwithstanding, it is necessary to make comment about the warnings that the Respondent sought to rely upon.
[46] The Respondent submits that the “Applicant had received two warnings in the 7 months prior to dismissal for performance and conduct”. 74 There was a warning in:
a) October 2013 for alleged excessive sick days and for reporting late for work; 75 and
b) May 2014 in respect of absenteeism, customer complaints and punctuality. 76
[1] Because the warnings were not about the conduct issue that led to the termination of the Applicant’s employment they are not relevant under s.387(e). However, they are relevant to consider under s.387(h). They evidence the fact that the Applicant was not an employee with an unblemished record. Had he had an unblemished record and the June Accident been a first and rare event that may have affected considerations of harshness in relation to the dismissal.
[2] The Commission also notes that the Applicant had been given a number of retraining opportunities in respect of concerns the Employer had about his competency with points. While these do not count as warnings and are not relevant to a consideration of s.387(e), they are relevant to a consideration of s.387(h).
Impact of the size of the Respondent on procedures followed - s.387(f)
[3] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[4] In the present matter the Respondent is a large employer. However, there is no evidence about whether the size of the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal. The Commission, as presently constituted, has found no issue with those procedures.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[5] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[6] In the present matter no evidence was led about the Respondent’s human resources function and the Commission makes no finding about the impact of that function.
Other relevant matters - s.387(h)
[7] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
[8] The Commission, as presently constituted, has already stated above that it considers the:
a) not unblemished record of the Applicant; and
b) additional training provided to the Applicant,
to be relevant. Both factors militate against a finding that the decision to dismiss the Applicant was unfair.
[1] The Applicant submitted that another matter that the Commission should determine was relevant and consider in determining whether the dismissal of the Applicant was harsh, unjust or unreasonable was that the Respondent did not accord the Applicant ‘good and considerate treatment”, but, rather, treated in a “uncaring manner”. 77
[2] The Applicant observed that a dismissal may be:
a) unjust because the employee was not guilty of the alleged conduct;
b) unreasonable because the evidence or material before the employer did not support the conclusion;
c) harsh because:
i. of the economic and personal consequences of the dismissal on the Applicant; or
ii. the outcome (dismissal) was disproportionate to the gravity of the conduct. 78
[1] Having regard to the findings made above, about there being a valid reason for termination, the Commission, as presently constituted, rejects the submission that the termination was either unjust or unreasonable.
[2] However, it remains necessary to determine if the dismissal was otherwise harsh.
[3] In doing so it is appropriate to consider the issue in the context of the other relevant matter that the Respondent urged the Commission to have regard to, namely that “as the sole operator of Melbourne’s tramway network, [the Respondent] is subject to extensive and onerous safety obligations (amongst others) far ‘above and beyond’ that of any ‘ordinary’ employer, as would be expected by the community of an operator of public transport.” 79 The Respondent, in particular, drew the Commission’s attention to the obligations that the Respondent has and the Applicant had under the Rail Safety (Local Operations) Act 2006.80 The Respondent described the safety obligations that it has as its “Safety Imperative”.81
[4] The Commission, as presently constituted, has given consideration to each of the other relevant matters identified by the parties. In weighing up the relevance of each of them the Commission, has placed more weight on the Safety Imperative. It is proper to do so when the matter involves a service to the public at large, conducted on public roads.
[5] The Applicant travelled in the wrong direction across an intersection. It was conscious and deliberate conduct on his behalf. This act caused a serious risk to the health and safety of the Applicant, other passengers (on other trams), pedestrians in the area and motorists. It was in breach of the Safety Imperative.
Section 387 conclusion
[6] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, the Commission, as presently constituted, finds the Applicant’s dismissal was not unfair.
Conclusion
[7] The Commission, as presently constituted, is satisfied that:
a) the Applicant was protected from unfair dismissal;
b) the dismissal was not unfair; and
c) the application should be dismissed.
[1] An order will be issued with this decision.
COMMISSIONER
Appearances:
Mr G Dircks for the Applicant.
Mr N Barkatsas for the Respondent.
Hearing details:
2014.
22 October.
Melbourne
Final written submissions:
29 October 2014.
1 [2013] FCA 291.
2 Exhibit A1, paras 127 and 132.
3 Exhibit R1, annexure SG-10.
4 Applicant’s Outline of Submissions (10 September 2014), para 1 (he says 8 April 2010), Respondent’s Outline of Submissions (7 October 2014), para 2 (it says 23 April 2010).
5 Applicant’s Outline of Submissions (10 September 2014), para 1.
6 Exhibit R2, annexure SG-17.
7 Exhibit R2, para 54.
8 Exhibit R2, para 54.
9 Exhibit R2, para 55.
10 Exhibit R2, annexure SG-20.
11 Exhibit R2, annexure SG-21.
12 Exhibit R2, annexure SG-22.
13 Exhibit R2, annexure SG-19.
14 Exhibit R2, annexure SG-2.
15 Exhibit R2, annexure SG-8.
16 Exhibit R2, annexure SG-11.
17 Exhibit R2, para 67.
18 Exhibit R2, annexure SG-14.
19 PN73.
20 Exhibit R2, annexure SG-15.
21 Exhibit R2, annexure SG-18.
22 Exhibit R2, para 94.
23 Exhibit R1, paras 7-9.
24 Exhibit R1, annexure AJ-1.
25 Exhibit R2, annexure SG-24.
26 PN551.
27 Applicant’s Outline of Submissions (10 September 2014), para 1.
28 Applicant’s Outline of Submissions (10 September 2014), para 2.
29 Respondent’s Outline of Submissions (7 October 2014), para 5.
30 Applicant’s Outline of Submissions (10 September 2014), para 23.
31 PN8.
32 PN10.
33 PN12.
34 PN13-14.
35 [1995] HCA 24; (1995) 185 CLR 410 at 465.
36 Sayer v Melsteel[2011] FWAFB 7498.
37 Applicant’s Outline of Submissions (10 September 2014), para 23.
38 Applicant’s Outline of Submissions (10 September 2014), para 27.
39 Applicant’s Outline of Submissions (10 September 2014), para 36.
40 Applicant’s Outline of Submissions (10 September 2014), para 47.
41 Applicant’s Outline of Submissions (10 September 2014), para 58.
42 Applicant’s Outline of Submissions (10 September 2014), para 58.
43 Respondent’s Outline of Submissions (7 October 2014), para 64.
44 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
45 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
46 Ibid.
47 Respondent’s Outline of Submissions (7 October 2014), para 72.
48 Exhibit R2, annexure SG-14.
49 Exhibit A1, para 58.
50 Exhibit A1, para 80.
51 Exhibit R2, annexure SG-18.
52 Exhibit R2, annexure SG-13.
53 Exhibit R2, annexure SG-14.
54 Exhibit R2, annexure SG-18.
55 Exhibit R2, annexure SG-14, page 14.
56 Applicant’s Final Submissions (29 October 2014), para 8.
57 Exhibit R2, annexure SG-14.
58 Exhibit A1, para 82.
59 Exhibit R2, annexure SG-14.
60 Exhibit R1, annexure AJ-2.
61 [2010] FWA 3497, [30].
62 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
63 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
64 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
65 Previsic v Australian Quarantine Inspection Services Print Q3730.
66 (2000) 98 IR 137.
67 Ibid at 151.
68 Applicant’s Outline of Submissions (10 September 2014), para 36.
69 Previsic v Australian Quarantine Inspection Services (6 October 1998), Print Q3730 at p 34.
70 RMIT v Asher (2010) 194 IR 1, 14-15.
71 Applicant’s Outline of Submissions (10 September 2014), para 36.
72 Applicant’s Outline of Submissions (10 September 2014), para 46.
73 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
74 Respondent’s Outline of Submissions (7 October 2014), para 3.
75 Exhibit R2, annexure SG-2.
76 Exhibit R2, annexure SG-8.
77 Applicant’s Outline of Submissions (10 September 2014), paras 55-56.
78 Applicant’s Outline of Submissions (10 September 2014), para 58.
79 Respondent’s Outline of Submissions (7 October 2014), para 12.
80 Respondent’s Outline of Submissions (7 October 2014), para 15-18.
81 Respondent’s Outline of Submissions (7 October 2014), para 19.
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