Mr Mark Langdale v KDR Victoria Pty Ltd T/A Yarra Trams

[2015] FWC 4613

[2015] FWC 4613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mark Langdale
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2014/11436)

COMMISSIONER ROE MELBOURNE, 10 JULY 2015

Termination of employment.

[1] Mr Langdale was employed by Yarra Trams, or the predecessor organisations which operated Melbourne’s tram service, from 23 September 1987 until 16 July 2014, a period of almost 27 years. For most of this period Mr Langdale worked as a tram driver. Mr Langdale was dismissed summarily for serious misconduct namely “deliberately driving slow to delay the tram service”. This conduct is known in the tram service as “dragging the road”.

[2] In October 2003 Mr Langdale was transferred from driving duties for a period of 9 months and received a final warning with respect to late running. This action was preceded by a warning in respect to the matter in September 2001. There was no evidence of any other concerns about Mr Langdale’s conduct or performance during the long period of his employment.

[3] I conclude from Mr Langdale’s employee records and from the absence of any evidence of late running or deliberate late running during the period from when Mr Langdale returned to driving duties in 2004 to the first complaint of late running in August 2013 that there was no problem with Mr Langdale’s performance in those years. However, it is reasonable to assume that the action taken against Mr Langdale in 2003 was a significant event in his career and that he was therefore well aware of the seriousness with which the employer regarded “dragging the road”.

[4] Mr Langdale operated from the Brunswick tram depot throughout his career. The trams from that depot mainly operate the Route 19 service in Sydney Road and Elizabeth Street and the Route 1/8 services in Moreland Road, Lygon Street, Swanston Street, St Kida Road, Toorak Road and various streets in South Melbourne.

[5] Ms Attard, Mr Langdale’s team manager in the twelve months prior to his termination, received complaints and made some observations of Mr Langdale’s performance in the period from August 2013 until June 2014. Ms Attard prepared a report which she completed on 10 July 2014 and which formed the basis of the decision to dismiss Mr Langdale following the meeting on 16 July 2014. Ms Attard mainly relied upon a number of complaints which had been received and consideration of performance data which related to those particular complaints. Ms Attard also had the benefit of some direct observations she made of Mr Langdale’s performance. Ms Attard gave evidence that there was a proposal to meet with Mr Langdale to discuss allegations against him in early April 2014 however Mr Langdale was on sick leave from 3 April 2014 until 10 May 2014. Ms Attard did not arrange to discuss the allegations with Mr Langdale upon his return and refers to several incidents which post-dated the return in her report.

[6] Ms Attard alerted Mr Langdale to the fact that there were concerns about his on time performance on 13 January and 25 February 2014. Ms Attard says that she raised the issue on two other occasions but she does not recall the dates or the details. Mr Langdale denies these other conversations occurred. There is some conflict in the evidence of Ms Attard and Mr Langdale about the extent of the discussions on 13 January and 25 February. It is not suggested that any particular allegation of dragging the road was put to Mr Langdale. I am not satisfied that Mr Langdale received a warning about these matters during this period. I am not satisfied that Ms Attard accused Mr Langdale of deliberately dragging the road but she did tell Mr Langdale that there were complaints from other drivers. Mr Langdale was made aware that his on time performance was below average for the depot and that Ms Attard was concerned that it was not satisfactory. Mr Langdale was also made aware that deliberately dragging the road was regarded very seriously and could lead to termination.

[7] Ms Attard reached a conclusion in her report that Mr Langdale was deliberately dragging the road. Mr Berti, the manager of lines at the Brunswick Depot, agreed with this conclusion after reading the report and discussing it with Ms Attard. On 14 July 2014 Mr Langdale was suspended from duty with pay and advised that the reason was “pending an investigation of alleged wilful misconduct - delaying services”. No other detail of the allegations was provided to Mr Langdale prior to the termination meeting which occurred on 16 July 2014. Mr Langdale was represented by his union at the meeting.

[8] At the 16 July 2014 meeting the report was read to Mr Langdale. He requested but was refused the opportunity to read it himself and to read the accompanying evidence and tram running time data and other statements. He was refused the opportunity to consider the report and was required to respond to the allegations immediately. The report referred to 21 particular documents and to 18 particular dates from 7 August 2013 until 24 June 2014. After the 20 page report was read to Mr Langdale he was given the opportunity to respond to the allegations during the meeting. There was then a break in the meeting during which Ms Attard and Mr Berti considered the responses and then returned to advise that Mr Langdale was dismissed.

[9] Mr Langdale is seeking reinstatement and payment of compensation for lost earnings. I am satisfied of the following matters which establish that Mr Langdale is protected from unfair dismissal. They are not contested.

1. Mr Langdale had been employed for a continuous period of more than 6 months at the time of the termination.

2. Yarra Trams is a national system employer.

3. Mr Langdale was dismissed at the initiative of the employer for reasons of serious misconduct.

4. The dismissal was not for reasons of redundancy.

5. The Application for unfair dismissal remedy was made within 21 days of the dismissal.

6. Yarra Trams is a large employer (Section 387(f)) and is not a small business employer for the purposes of the Fair Work Act 2009.

[10] Mr Langdale was notified of the reason for his termination at the meeting on 16 July 2014 (Section 387(b)). Mr Langdale was given an opportunity to respond to the alleged misconduct at the meeting on 16 July 2014. There is some contest about whether or not it was an adequate or reasonable opportunity given the volume and detail of the material and the inability to read the material and have time to consider a response to it (Section 387(c)). There was no refusal to allow union representation at the meeting to discuss the dismissal and Mr Langdale was represented by his union (Section 387(d)). The termination was related to conduct not performance and Section 387(e) is therefore not relevant to this case. Yarra Trams is a large employer with access to dedicated human resource management expertise. I am satisfied that these matters were not likely to have had any impact on the procedures followed in effecting the dismissal (Section 387(f) and (g)).

[11] The issues to be determined in this case are therefore:

a. If Mr Langdale did deliberately drag the road would this be a valid reason for termination for serious misconduct?

b. What is the probative value of the evidence concerning Mr Langdale deliberately dragging the road?

c. Does an examination of each of the alleged incidents substantiate the allegation that Mr Langdale deliberately dragged the road?

d. Does consideration of the alleged incidents taken as a whole justify a finding that Mr Langdale deliberately dragged the road?

e. If there was no valid reason for termination for serious misconduct, did the conduct or performance of Mr Langdale otherwise provide a valid reason for termination?

f. Did Mr Langdale have an adequate and reasonable opportunity to respond to the allegations at the termination meeting on 16 July 2014? (Section 387(c) and (h)).

g. Did Yarra Trams act consistently with its own discipline policy and the relevant enterprise agreement in the investigation and discipline of Mr Langdale? (Section 387(h)).

h. Was the termination unfair?

i. If the termination was unfair is reinstatement an appropriate remedy?

j. If the termination was unfair and reinstatement is not the appropriate remedy is compensation appropriate and if so what compensation?

a. If Mr Langdale did deliberately drag the road would this be a valid reason for termination for serious misconduct?

[12] Mr Langdale is accused of deliberately delaying the service. It is therefore essential to consider the actions of Mr Langdale in the context of the various causes of delays to the service. Evidence about these matters was given by all of the witnesses. Various reports and documents were also provided. My conclusions are based upon evaluation of these materials.

[13] The contractual arrangements between Yarra Trams and the State Government require Yarra Trams to meet performance targets in respect to % of scheduled services run and % of scheduled services run on time. On time running is defined as less than one minute early and less than 5 minutes late. Penalties apply to Yarra Tram if it fails to meet the performance targets. The penalties for failure to meet the service delivery target are more severe than the penalties for failing to meet on time running targets.

[14] Yarra Trams operates one of the world’s largest and most complex tram networks. Unlike the situation in many other countries, trams in Melbourne share the road space with cars, trucks, bicycles and pedestrians over approximately 80% of the network. The Swanston Street tram corridor is one of the world’s busiest tram corridors. Yarra Trams operates the service using a variety of rolling stock with different loading and unloading characteristics. Loading and unloading is sometimes delayed as passengers seek to validate their Myki ticket pass on the machines near the door entrance. Patronage on trams has been increasing in recent years and this has led to some situations where passenger loads exceed the desired standards. Trams are heavy vehicles which require considerable distances for safe braking particularly when the safety of standing passengers or poor traction in certain weather conditions are considered. Derailments and tram upon tram collisions are regarded as particularly serious and hence proper care and procedure when crossing points and maintaining a safe distance between trams are regarded as important.

[15] Yarra Trams and its drivers face considerable challenges in seeking to meet targets for on time running and delivery of scheduled services. These include:

● Delays to trams caused by other road users. Although the locations and times of congestion are generally known, the extent of the delays is variable. When vehicles block the tram tracks at intersections such as Swanston and Flinders Street this can produce compounding delays to the network.
● Delays to trams on one route due to delays on other routes. This particularly occurs in busy corridors such as Swanston Street.
● Delays due to heavy passenger loading. When trams are crowded passengers take longer to board and alight and sometimes block the doors from closing. To some extent this is predictable and accommodated in timetables but there is considerable variation.
● Delays due to traffic accidents, demonstrations, or other incidents external to the network.
● Delays due to tram breakdown or defective trams particularly doors.
● Delays due to misalignment of timetable and required journey times as the environment changes over time. 1

[16] The trams operating from the Brunswick Depot face some of the busiest streets and tram routes in the network. Timetables allow for a limited amount of layover time at the terminus. If the tram is only a couple of minutes late arriving at the terminus then it will generally be able to leave the terminus on time. Trams cannot pass each other. Delays have a tendency to compound. A delayed tram will tend to have to load and unload more passengers which will lead to further delay. In order to rectify the problem of service delays and reduce the incidence of tram drivers finishing late for meal breaks and at the end of their shift, Yarra Trams will sometimes short shunt a tram. The tram will be directed not to go all the way to the terminus but to off load passengers to the tram behind and shunt at a point short of the terminus. As this means that Yarra Trams does not deliver a scheduled service, it is something which Yarra Trams seeks to minimise.
[17] Delayed running is not generally in the interests of a tram driver. It often means harder work. It is more work for a tram driver when they have to stop more often, have to deal with disgruntled passengers, have to get passengers to move into the tram, have to open and close doors when the tram is congested, and have to brake and accelerate when carrying a heavy load. Late running may also mean that the driver is late for a meal break and/or late finishing a shift.

[18] Driver behaviour can contribute to delays. If a tram driver leaves a timing point early or drives too fast or fails to wait for intending passengers or accelerates sharply when passengers are finding their seat, this will mean that tram will load and unload fewer passengers and will therefore be able to progress faster. The following tram will have to load and unload more than the predicted number of passengers and the delays to that tram will tend to compound. In peak periods when there is only five or six minutes between timetabled trams, a tram leaving only one minute early can be significant. Alternatively, if a tram driver arrives to pick up a tram at a changeover point late, or drives unnecessarily slowly or waits for intending passengers when there is another tram on the same route behind, or fails to anticipate lights or fails to go when a special tram “t” light comes up this will delay the tram. It will mean that the tram will load and unload more passengers and the delays to this service may compound. Following trams on the same route, and/or, on other routes may also be delayed.

[19] This driver behaviour could occur for the following reasons:

● A new driver may lack the necessary skill and experience. The evidence of Mr Brady, a former tram instructor, was that this was not an issue after three to six months.
● A driver may perform poorly due to stress, inattentiveness, distraction, mistake or lack of diligence. If this was repeated it may lead to disciplinary action for poor performance.
● Deliberate action to delay the service.

[20] The motivation for deliberately leaving early, missing passengers or driving fast is obvious. The driver is likely to have a reduced and easier workload and is more likely to be able to finish work on time for meal breaks and at the end of their shift. It is much more difficult to understand the motivation for deliberately dragging the road given that late running will generally result in more work and more stressful work. The only motivation which was suggested by Yarra Trams was that if a driver drags the road they may be seeking to be short shunted. If the driver is short shunted then they are likely to be back on time and then able to be on time for their meal break and/or finish of their shift. However, during the period when the driver is running late it is likely that their work will be considerably more stressful due to more frequent stopping and having to deal with overcrowding and frustrated passengers. Also no driver who is running late is guaranteed to get a short shunt given that Yarra Trams have a strong motivation to run the scheduled service.

[21] Yarra Trams has access to a great deal of data concerning on time running performance. There is direct communication between drivers and the fleet operations centre. Delays, potential delays, incidents and vehicle faults can be reported and addressed. Data is also collected using transponders on the trams at specified timing points. This data can be used to track the on time performance of a tram on a particular run and the related performance of leading and following trams. It also enables the performance of drivers on the same runs to be compared. The data can also identify if a driver stopped at a particular monitored stop, the time spent in the general vicinity of the stop, and if the doors were opened at that stop. It is also possible to extract data on tram speed and breakdowns but that data was not produced in evidence.

[22] Some of the data which was relevant to Mr Langdale’s performance was made available in the proceedings.

[23] I am satisfied that deliberately dragging the road could constitute serious misconduct. I reach this conclusion having regard to Regulation 1.07, meaning of serious misconduct, in the Fair Work Regulations 2009. Deliberately dragging the road and delaying the service has a serious impact on the delivery of the tram service and as a result it is action which causes serious and imminent risk to the reputation and profitability of Yarra Trams. Yarra Trams also submitted that deliberately driving slow to delay the tram service was in breach of a number of the polices and rules of Yarra Trams. It is not necessary to consider this in any detail as I am satisfied that the conduct would, unless there are exceptional extenuating circumstances, be serious misconduct and Mr Langdale was aware that deliberately dragging the road was regarded as serious misconduct.

[24] If I am satisfied that Mr Langdale deliberately dragged the road this would constitute serious misconduct and constitute a valid reason for termination for serious misconduct unless there are particular exceptional circumstances which justified or explained the action.

b. What is the probative value of the evidence concerning Mr Langdale deliberately dragging the road?

[25] There are three unusual features of the evidence in this case:

● Yarra Trams rely on a large number of alleged incidents of deliberate delay to the tram service spread over a ten month period but the detail of these incidents was not put to Mr Langdale until the termination meeting and was not available to him in writing until after he prepared his statement for these proceedings.
● Yarra Trams did not call as a witness the particular drivers or managers who made statements about Mr Langdale’s conduct as a driver at the time of each of the alleged incidents. In the main Yarra Trams did not reveal the identity of the complainants.
● The one witness who did directly observe Mr Langdale’s conduct on two occasions and who also compiled the report on Mr Langdale’s conduct did not conclude her evidence in this case and substantial parts of her evidence were not able to be subject to cross examination or re-examination.

[26] The evidence concerns the details of what happened on particular tram trips all of which took place between five and fifteen months prior to the hearing of the matter. Given that a tram driver repeatedly travels on the same routes each day it is difficult to expect a driver to remember the details of the traffic and loading conditions on each particular trip and this becomes more difficult as time goes by. The particular allegations were not put to Mr Langdale until the meeting which led to the termination on 16 July 2014 which was many months after most of the incidents occurred. Mr Langdale did not have the opportunity to read the allegations as the report was read out to him. The first time he saw a written version of the allegations was in the lead up to the Fair Work Commission hearing of the matter in November 2014. He did not have the benefit of a written version of the allegations when preparing his statement for the proceedings.

[27] Yarra Trams decided not to call as a witness the particular drivers or managers who made statements about Mr Langdale’s conduct on particular trips. Instead Yarra Trams relied upon running time data and upon the evidence of Ms Attard. Ms Attard gave evidence of what drivers and managers had told her and in some cases there were written reports but the authors of those reports were not made available for cross examination. The identity of the authors was also generally not revealed. Mr Langdale submits that the statements which are not available for cross examination should be given no weight and that I should find that the failure to call these witnesses should give rise to a finding that the evidence of these witnesses would not have assisted Yarra Trams.

[28] Ms Attard gave evidence of some conversations she had with Mr Langdale and she also gave evidence of two direct observations of Mr Langdale’s conduct, one of which was a positive report on 13 January 2014 and the other was a negative report on 25 March 2014.

[29] Yarra Trams made an application that it be able to close its evidentiary case prior to Ms Attard finishing giving her evidence in the case. Ms Attard gave evidence and was cross examined on 11 November and 26 November 2014. Ms Attard suffered a panic attack towards the end of the day on 26 November 2014 and was unable to continue to give evidence. When the matter resumed on 28 November 2014, Ms Attard had a medical certificate that she was unable to give evidence. This situation continued for the balance of 2014, although Ms Attard had returned to her normal work duties. When the matter resumed on 15 January 2015 Ms Attard was still unavailable to give evidence. Directions were issued for the engagement of an independent clinical psychologist or psychiatrist for the purpose of obtaining a report relating to Ms Attard’s fitness to give evidence. It was difficult to obtain an appointment and the independent medical report was finally received on 23 April 2015. I considered submissions from the parties and on 5 May 2015 I granted Yarra Trams’ application that it be able to close its evidentiary case. As a result significant parts of Ms Attard’s evidence were not subject to cross examination and there was also no opportunity for re-examination.

[30] Given the importance of Ms Attard’s evidence it is important to include the detail of my decision in respect to this matter:

“I am going to make a decision about the procedural issue here.  In doing so, for the reasons I explained, I am not going to make a decision about the issue of the statement of Mr Altieri because it would not affect my decision.  The respondent is not requiring the Fair Work Commission to determine that Ms Attard is unable to give further evidence although it does say that Dr Strauss' report effectively means that this is the case.  Rather, the respondent wishes to close its case and not subject Ms Attard to further cross-examination or re-examination.

The applicant submits that the medical report is flawed because it is based on flawed assumptions, incorrect information about what happened in cross-examination, and also because Dr Strauss' conclusions about Ms Attard's condition should not preclude her from giving evidence in the normal course.  I have some sympathy with some of these points, however, I respect Dr Strauss' opinion about Ms Attard's capacity.  I find that the report is quite unclear about the likelihood of Ms Attard being able to give further evidence and particularly about the delay which may be required.
I am not prepared to determine that Ms Attard is unable to give further evidence.  The respondent submits that it has decided that not requiring Ms Attard to give further evidence is the safest course from the point of view of her health and safety.  Should Ms Attard be required to give further evidence I am concerned that this could lead to further delays in circumstances where the employer will not require her to do so as part of her employment duties, and where Ms Attard may dispute her capacity to do so.

I am particularly concerned the object of the legislation that FWC establish procedures for dealing with unfair dismissal which "are quick, flexible and informal" may not be met, and that of course is section 381(b)(i).  I am also concerned that further delays may mean that in the event the applicant is successful in satisfying me that the termination of employment is unfair, that the primary remedy of reinstatement may be more difficult to implement.  This must be balanced against considerations of procedural fairness and natural justice.

I am satisfied that both sides suffer some prejudice in not being able to have further cross-examination and re-examination of Ms Attard, and I think the nature of that disadvantage is fairly obvious.  I am not satisfied that there is a particular disadvantage to either side.  That is, I am not satisfied that either side is particularly disadvantaged when compared to the other side.  In those circumstances I will allow the respondent to close its case and hence not require further attendance from Ms Attard.

I note that the respondent(sic) wished to further cross-examine Ms Attard.  The parties will therefore make submissions about what weight, if any, I should give to aspects of Ms Attard's evidence; those parts which have been the subject of cross-examination and those parts which have not, and in respect to any associated documentary evidence.  The parties should provide closing submissions in accordance with the timetabled directions.” 2

[31] When Ms Attard gave evidence her answers were often not responsive to the questions asked. Ms Attard gave evidence that she used the tram progress data which is electronically recorded, known as the Kestrel data, to confirm the allegations made against Mr Langdale. 3 Ms Attard said that the data supported all aspects of the allegations made by the drivers against Mr Langdale. However, under cross examination Ms Attard had difficultly following and interpreting the Kestrel documents. Ms Attard continued to maintain that the evidence supported her contention that Mr Langdale was responsible for delays and that there was no other possible explanation even where the data did not support this position.

[32] After observing Ms Attard in the witness box I am not satisfied that she had sufficient understanding of the Kestrel and other data to be able to reach accurate conclusions about whether or not there was an explanation for Mr Langdale’s late running. Furthermore, Ms Attard clearly did not understand statistics and probability. She did not understand that if one day in a week was very late it would affect the overall punctuality figure for that driver for the whole week. I am satisfied that where Ms Attard gives evidence that she investigated a matter and found that other trams were not running late or that there were no other incidents or known reasons for late running that evidence should not be accepted unless the actual data has been provided.

[33] I do not accept Ms Attard’s assertions, unless demonstrated by comprehensive data, that there were no incidents or defects reported and that Mr Langdale’s tram was the only one running late (apart from those delayed by Mr Langdale) in each of the reported incidents. The data shows that in a number of cases this assertion is wrong. For reasons discussed earlier I was not satisfied that Ms Attard had a good grasp of the data. The supporting data that was provided as annexures to the investigation report was in all cases inadequate. It did not include data from other route trams on the same line. It did not include the reports of incidents on the day. In many cases it did not include data for relevant trams on the same route. In a number of the cases Ms Attard’s assertions were not able to be tested in cross examination.

[34] In some cases the data is hard to understand. For example Table 74 on 24 June 2014 is shown as scheduled at Victoria Street at 18.29 and shown as time of arrival at Victoria Street at 18.27 but the deviation is shown as zero. 4

[35] I consider that it is important to know when the trams in front of Mr Langdale depart from the terminus. An early or a late departure makes a very big difference to loading and to delays particularly in busy periods. Where there is a timing point in the Kestrel data immediately after the terminus such as at Collins Street and Elizabeth Street adjacent to the city terminus for the Route 19 tram the data for this point will suffice. However, where there is a distance to the next timing point in the data it is important to have the terminus departure time. Mr Cushion is the Manager Network Performance and who has responsibility for managing the Kestrel reporting tool which is vital to Yarra Trams operational performance accountability under its contract with Public Transport Victoria. He gave evidence that at the commencement of a trip, such as from the North Coburg terminus, the “TOA” (Time of Arrival at the timing point) is effectively the time of departure. 5 The system records the time of arrival for the previous trip and then records again when the tram is ready to depart the terminus.6 An examination of the Kestrel data shows the arrival time at the terminus on one line of the report and then a different time on a different line of the report and often on a different page for the “toa” for the departure. In these circumstances Mr Cushion’s evidence that one is the arrival time and the other is the departure time makes sense. However, there are some circumstances where the data for the arrival trip was not in evidence and there are some circumstances where an examination of the next timing point on the trip suggests that it is unlikely that the “toa” at the terminus is the departure time, rather it is the “ready to depart time”. For this reason I am cautious about concluding that the “toa” at the terminus is the departure time in all cases. Mr Cushion made it clear that data for the actual terminus arrival time and the actual terminus departure time is available and is utilised by Yarra Trams. It could be generated if a different report was requested. In many cases I am satisfied it was not possible for Ms Attard to draw valid conclusions about Mr Langdale’s behaviour when she did not have data about the time of departure from the terminus of the trams in front of Mr Langdale.

[36] I am satisfied that it is impossible to conclude that Mr Langdale was deliberately delaying the service without having access to information about the running time experience of the immediately preceding trams on the same route. In cases where there are trams from more than one route sharing the same track for part of the route the experience of the preceding trams on those routes is also needed. If a tram in front leaves the terminus or a timing point early then this can cause significant delays to a following tram. If a tram in front is delayed, even if it is not on the same route, this can cause significant delays to a following tram. If a tram two trams in front is delayed this may be relevant even if the tram one in front is not delayed as it may provide an indication of problematic traffic or other conditions.

[37] Where the evidence relating to an incident shows that Mr Langdale was running late but where there is no evidence as to the reasons why he may not have been running to schedule it does not necessarily follow that Mr Langdale was deliberately delaying the service.

[38] Mr Langdale requested that Yarra Trams be ordered to produce the data which records the running times of trams immediately preceding Mr Langdale’s tram on the dates when the alleged conduct occurred. Mr Langdale’s counsel objected at the outset of the proceedings to the failure of Yarra Trams to produce all the documents ordered to be produced in this category. 7 The only documents produced in this category were the ones which Ms Attard said were attached to her investigation report. Ms Attard gave evidence in cross examination that she looked at other data that was not in the folder before the Commission between hearing dates whilst under cross examination. I am not satisfied that all the running time data for the immediately preceding trams on the relevant days were produced. In some cases the data for the tram in front was not available and in other cases the data only related to one route when trams on other routes on the same track were relevant.8

[39] Mr Langdale submits that I should infer from the failure to provide these documents that they would not have been helpful to Yarra Trams case.

[40] If it is obvious to a driver that the tram in front is delayed they may rationally wait at a stop or at a set of lights even though passengers are not boarding or alighting. I also accept the evidence of Mr Langdale that on occasion a passenger will indicate to the driver that they wish to board or alight a tram but then when the tram stops they change their mind. Sometimes this occurs for mischievous reasons but sometimes a passenger may be unsure of their location or destination. I also accept the evidence of Mr Langdale that it is common for trams to be delayed due to passengers not moving into the tram and clearing the doors or due to rubbish obstructing the doors which can be difficult to clear. There are a number of other situations where a tram may be stationary without apparent reason; for example, drivers are not allowed to talk to passengers or to fleet operations centre whilst moving. These situations would not always be apparent to the driver of a following tram. That driver could incorrectly conclude that the tram in front has stopped or remained stationary for no apparent reason when these situations occur. If there is a tram on the same route immediately behind, the tram driver in front does not need to stop for an intending passenger when running late unless they are stopped by lights or an alighting passenger. However, if the section of line has trams from more than one route on it, the tram in front cannot always easily tell what route the tram behind is on.
[41] I am satisfied that given the many and varied possible causes of delay it would be dangerous to rely upon assumptions and observations made about the cause of delay in the statements of drivers and managers when those statements were not available for cross examination. This is particularly the case when the alleged incidents were not put to Mr Langdale in a timely manner or in a form where it was realistic for him to be able to recall the alleged incident and respond to it.

[42] I accept that where an innocent explanation is plausible for a particular type of behaviour but where that behaviour is repeated many times that innocent explanation becomes less plausible. In such situations an inference concerning the motivation for the behaviour might reasonably be drawn. For this reason it is necessary to look at the evidence concerning the alleged incidents as a whole as well as individually. However, the quality of the evidence is still a relevant consideration.

[43] I am not satisfied that there is any compelling reason why Yarra Trams could not have provided direct evidence in this case including:

● Calling the relevant managers to give evidence to support their statements.
● Calling the relevant employees who made complaints to give evidence.
● Providing comprehensive running time and maintenance and operations centre data for the days which correspond to the allegations.

[44] It is not necessary to conclude that the evidence would not have assisted Yarra Trams’ case. However, I have decided to give less weight to the anonymous statements. Mr Langdale’s direct evidence should be preferred where it conflicts with the statements which are not available for cross examination. It is also necessary to conclude that where further data may have provided a satisfactory explanation for delay a finding adverse to Mr Langdale cannot be made.

[45] There are two aspects of the evidence of the termination meeting which are important to the case and in particular whether or not Mr Langdale made admissions during the termination meeting.

[46] Firstly, the notes of the meeting were notes which were typed by Ms Attard at some time after the meeting. Ms Attard shredded the notes she took during the meeting. 9 Mr Bertie who was the other manager at the termination meeting gave evidence that the typed notes were a summary of what was said and that in some parts different words were used.10 Mr Brady who was present at the meeting as Mr Langdale’s representative recalled that Ms Attard had said that she would type up the notes the morning after the termination meeting.11 Ms Attard was not able to be cross examined concerning her evidence about what happened at the termination meeting. I am satisfied that in these circumstances I should be cautious in relying on the content of the typed notes of the meeting where they are inconsistent with the direct evidence of Mr Langdale and Mr Brady.

[47] Secondly, the notes of the meeting and the evidence of Mr Bertie and Ms Attard suggest that Mr Langdale admitted that “some of it was my fault” and “95% of the reports are true.” Mr Langdale and Mr Brady deny that these phrases were used. Mr Langdale and Mr Brady gave evidence that Mr Langdale had in fact said words to the effect that 95% of the data was correct. Mr Bertie in cross examination stated that Mr Langdale had said: …”95% of the allegations or data was correct”. 12

[48] I found Mr Brady to be a convincing witness. I accept that Mr Bertie understood Mr Langdale to have made a broader admission. I understand Ms Attard’s notes reflect such a broader admission. I have given due consideration to those notes and the evidence of Mr Bertie concerning the meeting. However, for reasons discussed earlier I am not satisfied that the notes reflect accurately the words used particularly where there is conflict with Mr Brady and Mr Langdale’s evidence. The issue of late running and poor on time performance is easily conflated with the issue of deliberately delaying the service. The factual basis for many of the allegations could be seen as directed at either of these matters. Mr Bertie and Ms Attard were presenting information about a confusing, I would say bewildering, range of incidents where they said the data showed that Mr Langdale’s on time performance was poor and where they said there was no satisfactory explanation. Mr Langdale was not in a position to be able to refute this material particularly given its age, the level of detail, the inability to see the material, and given that the data and its collection was totally within the power of Yarra Trams. In these circumstances it is understandable that an admission to the accuracy of the allegations of unexplained poor on time performance could be understood as an acceptance of the truth of the allegations of deliberate late running.

[49] I am satisfied that Mr Langdale conceded that most of the running time data which Yarra Trams relied upon was probably correct. I am not satisfied that Mr Langdale made any admission that he had deliberately delayed the tram service during the termination meeting.

c. Consideration of the actions of Mr Langdale which Yarra Trams say constitute deliberate dragging the road.

7 August 2013

[50] It is alleged that Mr Langdale was running 30 minutes late. The fleet operations report said that drivers behind had called because the tram was not moving. Mr Langdale is reported to have told fleet operations that someone was standing on the step and he had to leave his cabin to investigate. The data shows that Mr Langdale was later that week than the depot average for that run and was particularly late on that day. Given the diverse reasons for delay and the huge variety in running conditions from day to day there is no basis to doubt Mr Langdale’s reported explanation. The matter was first raised with Mr Langdale 11 months after it occurred. Ms Attard did not regard the incident as important at the time it occurred. Ms Attard gave evidence that she made no finding that Mr Langdale was deliberately running late on that day. 13 The Kestrel data for that day only relates to Mr Langdale’s tram so there is no basis to reach any conclusions about the cause of delay from that data. I accept that the Kestrel data does show unexplained delays in shunting the tram. However, the data shows that Mr Langdale finished his shift 14 minutes late. It is difficult to see the advantage obtained by Mr Langdale due to late running.

13 August 2013

[51] Ms Attard received a complaint from a driver that Mr Langdale was boasting that he “never sees a terminus and gets short shunted”. The driver said that she and others observed Mr Langdale deliberately delaying the service. The driver refused to put in a report or complaint. The document in evidence is Ms Attard’s notes or recollection after the event; it is not a statement from a driver. Mr Langdale denied the allegation. There is ample evidence that Mr Langdale generally does take the tram to the terminus and he does not always get short shunted. I do not find the statement plausible. I am not prepared to rely on the statement given it contains no specific dates or details. The driver is not available for cross examination and there is no reasonable explanation as to why the driver was not made available for cross examination.

5 January 2014

[52] Fleet operations report that Mr Langdale was running 15 minutes late and asked Mr Langdale if everything was OK. Mr Langdale said he was late because of inadequate running time but fleet operations reported that it was the only tram running late at the time. There were six other drivers who had equivalent or worse punctuality records than Mr Langdale in that week. 14 Ms Attard made no finding that Mr Langdale had been deliberately running late on that day.15 The Kestrel data provided does not include data for the trams in front of Mr Langdale on other routes which use the same line. The Kestrel data does show that Mr Langdale’s tram lost time on the 2.15pm trip from North Coburg to Elizabeth Street. The tram in front may have left early but was then on time for the whole trip into the city. Mr Langdale then left Elizabeth Street 6 minutes late. The tram in front was running on time and consequently there was a 15 minute gap, instead of the scheduled 8 minute gap, between the route 19 tram in front and Mr Langdale’s tram leaving the city. It is reasonable to infer that as a result Mr Langdale may have faced heavy passenger loading which may explain the increased delay. Mr Langdale arrived at the depot 15 minutes late. I am not satisfied that there is a basis for concluding that this delay was due to deliberate action by Mr Langdale to delay the service.

13 and 14 January 2014

[53] Ms Attard travelled with Mr Langdale for a “task observation” on 13 January 2014 and observed that he generally maintained punctuality. However, on the two following days he was late and Ms Attard says that there was no reason for the lateness. As with all of the incidents Ms Attard says she confirmed that there were no reported incidents or defects and that the tram services in front were able to maintain schedule and that those behind were able to regain schedule once Mr Langdale was out of the way. However, the Kestrel document for 14 January 2014 shows clearly that the tram in front of Mr Langdale was delayed for a similar amount of time as Mr Langdale’s tram and lost similar amounts of time as Mr Landgale in the same sections of the route. Ms Attard conceded that the delay to the Table 29 tram in front of Mr Langdale’s tram could not have been caused by Mr Langdale and that her statement that “tram services were delayed only when they ended up behind Mr Langdale on the relevant day” was incorrect. 16 It is obvious that the reasons for delay were not properly investigated by Yarra Trams. Yarra Trams in its final submission argued that Table 29 tram may have been 7 minutes late heading to Toorak but maintained schedule heading back to Moreland. In fact Table 29 is 12 minutes late by the time it reaches Toorak at 8.54am and Mr Langdale is also 12 minutes late when he reaches Toorak at 9.02am. On the next trip Table 29 does gradually recover the time whilst Mr Langdale loses more time to become 17 minutes late. However, for the parts of the route where Mr Langdale loses more time there are many other tram services involved (St Kilda Road and Lygon Street) and no data is provided for those other routes. Two route 8 trams were delayed behind Mr Langdale on that trip.

[54] I am not satisfied that there is a proper basis to conclude the delay was due to deliberate action of Mr Langdale to delay the service.

10 February 2014

[55] Ms Attard’s allegations for this day relate to two fleet operations logs and a verbal complaint by a driver. The first allegation was that Mr Langdale left North Coburg at 7.50am and arrived at the city 20 minutes late. Mr Langdale said that the delay was caused by heavy loading along the route. However, Ms Attard concluded that it was due to deliberate action to delay to the service as the tram in front was not late and a driver verbally reported that traffic was not heavy.

[56] The Kestrel document for 10 February 2014 shows that the tram in front of Mr Langdale arrived at 7.38am and probably departed at 7.42am which is three minutes prior to the scheduled departure time of 7.45am. Given that there is scheduled to be about 4 minutes between trams at that time of the morning an extra three minute gap is of considerable significance. Ms Attard says in her report that the tram in front was “running more or less to schedule” but even after probably leaving early that tram was 5 minutes late reaching the city terminus and the tram in front of that one was 6 minutes late. This is inconsistent with Ms Attard’s evidence that there were no delays and no possible explanation for Mr Langdale’s performance other than dragging the road. Kestrel data for trams from other routes which share the Elizabeth Street corridor was not provided. In these circumstances the verbal complaint of another driver reported by Ms Attard has little probative value. There is a reasonable explanation for Mr Langdale’s tram being significantly delayed. I accept that there is a big difference between 5 or 6 minutes late and 20 minutes late. I accept that there is reason to question Mr Langdale’s performance but no proper basis to conclude that he deliberately delayed the service.

[57] The second allegation relates to a delay to Mr Langdale’s tram due to a faulty door. The maintenance log report stated that no fault was found with the tram but a plastic bottle was removed from the doorway. What is quite clear from the report is that a supervisor in a car, “Yarra 3”, was dispatched to deal with the delay to the tram. Mr Langdale gave evidence that he followed the appropriate fault finding procedure to deal with the door fault. The supervisor would have followed the same procedure when he or she arrived at the tram. Ms Attard agreed that the supervisor would have examined the door and gone through the fault finding procedure and that there is no evidence that the supervisor was able to locate or solve the problem. 17 The fleet operations log records that the door was isolated. This suggests that the problem was not able to be resolved. If the supervisor was unable to find and remove the plastic bottle then there is no reason to assume that the problem with the door was not a plastic bottle which was unable to be found and removed.

11 February 2014

[58] A report from an anonymous driver alleged that Mr Langdale was deliberately dragging the road. The report alleges that Mr Langdale was travelling under the speed limit, missing green lights, stopping between stops without reason, and stopping to collect passengers even though the other driver was directly behind and no one got off the tram. Ms Attard says that the Kestrel data confirms the accuracy of the complaint. When Mr Langdale left the city terminus at 8.42am it was a long time since the last number 19 tram had left the terminus. Mr Langdale did lose more time on the way to Coburg and the complaining driver was directly following. Mr Langdale denied deliberately dragging the road and says that he was driving at a safe speed, that he may have been delayed between stops by cars on the tram tracks or because he was speaking to fleet operations. Mr Langdale stated that if he is short shunted he needs to check that there are no passengers left on the tram before doing so. Mr Langdale says that after he was short shunted the traffic was still heavy and he was following a tram from Bell Street and that he lost two or three minutes because of that. This is confirmed by the Kestrel data. The Kestrel data also shows that two trams in front of Mr Langdale also lost five to six minutes between North Coburg and Brunswick.

[59] The driver who made the complaint said that despite Mr Langdale being short shunted at Coburg and the complaining driver having to go to North Coburg, he still caught up to Mr Langdale again on the trip to the city. Ms Attard said that there is no way this could have happened if traffic was a cause of delay. The Kestrel data shows that Mr Langdale left Coburg at 9.31 whilst the complaining driver left North Coburg at 9.38. The complaining driver says that Mr Langdale was in the shunt when he arrived at the terminus. The data shows that at no stage did the complaining driver catch up to Mr Langdale and Mr Langdale did not go to the terminus but was short shunted at Lonsdale Street 5 minutes prior to the complaining driver reaching that point. The complaining driver also stated that he was following Mr Langdale on the first trip from Brunswick Road to the Flinders Street terminus. The Kestrel data shows that the complaining driver was only one minute behind Mr Langdale in Royal Parade but five minutes behind Mr Langdale at the Haymarket and two minutes behind him at Victoria Market. This suggests that there were some other sources of delay for the complaining driver.

[60] I accept that Mr Langdale was running late on this day and was short shunted on three occasions. The data shows that on most trips that day Mr Langdale experienced greater delays than the trams in front of him on the same route but data is not available for trams on other routes that share the same line. The evidence does raise some question marks about Mr Langdale’s performance but there is no reliable evidence of deliberate delay to the service.

13 February 2014

[61] Ms Attard gave evidence that on 13 February 2014 there was an unannounced observation of Mr Langdale’s driving by a team manager from another depot. The team manager did not give evidence in the proceedings. I am satisfied that no reasonable explanation has been given as to why the team manager was not called as a witness. Ms Attard summarises the team manager’s report in her report and the actual report is not in evidence. Given that the team manager was not called as a witness and the actual document was not in evidence I am not satisfied that the report was made at the time of the alleged observation.

[62] The team manager reports:

● Mr Langdale was late coming out of the depot to pick up the tram. The tram arrived at the depot three minutes late. Mr Langdale delayed the tram service by three minutes.
● Mr Langdale drove at approximately 25km per hour in a 40km zone in Sydney Road and he also missed a number of green lights which the team manager believed could have been crossed safely.
● At one stop he stopped and opened the doors for approximately 12 seconds but there was no passenger seeking to board or alight.
● Mr Langdale was short shunted at Latrobe Street and then managed to maintain schedule on the return to be relieved at the depot.

[63] Mr Langdale was understandably unable to remember the particular circumstances when they were first raised with him at the 16 July 2014 meeting. Mr Langdale suggested that he would have been waiting to pick up the tram and when it did not arrive on time he may have gone into the depot to report that the tram had not arrived. Mr Langdale suggested that it is rare to be able to drive at 40km per hour on Sydney Road. Both Ms Attard and Mr Bertie agreed with this assessment. I am satisfied that the traffic and pedestrian conditions on Sydney Road are such that safe operation may require trams to drive at slow speeds. Mr Langdale said that because the tram was six minutes late it is likely that there would have been heavy loading whereas on the return trip when he was on time it is likely that loading would be light. Mr Langdale argues that Yarra Trams is able to produce documents which show the speed of trams at regular intervals. No such documents were produced to demonstrate the actual speed of the tram on this occasion. On the relevant day there were six other drivers with similar or worse on time performance than Mr Langdale.

[64] An examination of the Kestrel data shows that the tram in front of Mr Langdale was also running late so Mr Langdale’s late departure is not likely to be the cause of heavy loading. Allowing for the three minute wait at the depot it took Mr Langdale from 9.44 to 9.55am to travel down Sydney Road from Brunswick depot to Royal Parade Parkville. The tram in front took from 9.39am to 9.49am. The one in front of that took from 9.27 to 9.38am. I am satisfied that Mr Langdale took a similar amount of time to other trams to navigate Sydney Road and I therefore reject the allegation that he was driving too slow or missing lights and delaying the service.

[65] In the section from Parkville to the Haymarket Mr Langdale lost a further two or three minutes. The trams in front did not lose or gain further time in this section of the route. 18 Given that a single traffic light cycle is between one and two minutes and the extra delay to Mr Langdale’s tram was only two or three minutes there is no basis to conclude that Mr Langdale deliberately missed “numerous green traffic lights”. There is no basis to conclude from this data that Mr Langdale was deliberately delaying the tram service.

25 February 2014 personal effectiveness review

[66] All drivers undertake a personal effectiveness review with their team manager. The report from Ms Attard’s review of Mr Langdale 19 was in evidence together with some notes that Ms Attard made.20 In the notes Ms Attard says that there was a discussion about late running. Ms Attard alleges that she told Mr Langdale that there had been complaints about late running and dragging the road and he said words to the effect that they can’t touch me and they all had it in for me. Given the very significant concerns I have with Ms Attard’s evidence, and Mr Langdale’s evidence denying many of the details recorded in the notes I have more confidence in the accuracy of the official record of the personal effectiveness review than I do with her notes. The official record does include a target for improved punctuality and a commitment to review this on 25 May 2014. That review did not occur. Ms Attard accepted that the personal effectiveness review is not part of any disciplinary process.21

[67] The personal effectiveness review record indicates that Mr Langdale’s performance is excellent in the areas of safety and customer satisfaction. In respect to operational performance Ms Attard comments in the review that:

“Punctuality is wellbelow depot average and does not meet the required standards of where you need to be. Through task observations you were able to keep to time and within safety measures. I am finding it difficult to comprehend why you are sitting so far behind the depot average…. This needs to be improved and we need to clarify why this is happening and what we can do to improve it.”

“Mark is doing really well in certain areas, expressed that I am pleased and to keep it up, he has made a commitment to improve.” 22

[68] In the personal effectiveness review Mr Langdale’s comments in this respect are recorded as follows:

“Late running out of my control, will try and improve. Poor running times between 6pm-8pm, middles and lates, Flinders/Swanston gridlock. Advised on consequences if found deliberate and no improvement, he referred to past customer service.”

“How can I improve? Will try and improve in opr, was told to wait for passengers crossing the road. Day medical appointments will try and change shifts.” 23

[69] I am not satisfied from the report that Mr Langdale was warned that he was dragging the road. I am satisfied that Mr Langdale was told that his on time performance was poor and needed to improve. I am satisfied that Mr Langdale was told that if he was found to be deliberately dragging the road there would be disciplinary consequences. Ms Attard made no finding during the performance review that Mr Langdale was dragging the road.

9 March 2014

[70] On Sunday 9 March 2014 Ms Attard says that there was a verbal complaint from another driver. Ms Attard says that Mr Langdale was the reason for the delay on that day but she made no finding that Mr Langdale was deliberately running late on that day. 24

[71] The Kestrel data for this day shows that Mr Langdale was not seriously late on most of the trip departing from East Coburg at 3.09pm. He was three minutes late at Lonsdale and Swanston Street. However by the time he reached Flinders and Swanston Street, which is less than a kilometer further on, Mr Langdale was 13 minutes late. Data is only provided for the Number 1 route but there are a very large number of routes which use Swanston Street. Although the Number 1 route tram following Mr Langdale never caught up to Mr Langdale (it was between 7 and 9 minutes behind in the city) it also lost 9 minutes between these two points. Ms Attard denied that the delay could have been caused by another tram. 25 This evidence is not credible.

[72] Mr Langdale arrived at the South Melbourne beach terminus 14 minutes late. He then continued to be late on the remaining trips. Given that the Route 1 tram in front of Mr Langdale was not late and that on Sunday there are 12 minutes timetabled between trams on Sunday on this route, it is quite likely that Mr Langdale would have experienced heavy passenger loading which may have increased the delays. The next Route 1 tram service caught up to Mr Langdale’s tram and was following it for two of the trips from the city to Coburg. It is reasonable to question why Mr Langdale spent six minutes at the South Melbourne terminus when running late but it is possible that he may have had to go to the toilet. There are reasons to question why Mr Langdale was unable to recover time despite being short shunted twice but there is no proper basis to find that Mr Langdale was deliberately delaying the service.

12 March 2014

[73] Fleet operations reported that Mr Langdale was running up to 17 minutes late on one trip from the city to North Coburg. Mr Langdale had been running seven minutes late on the previous trip and there were two trams on the same route directly behind him when he reached the Flinders/Elizabeth Street terminus. Ms Attard made no finding that Mr Langdale had been deliberately running late. 26 Mr Langdale says that he recalls the day because he was made a block car which is an unusual occurrence. Mr Langdale gave evidence that on this trip when the tram arrived at Latrobe and Elizabeth Streets the stop was completely full of people and there was no customer service person at the stop as there usually is at that time and as a consequence it took two or three sets of lights for everyone to board the tram.27

[74] The Kestrel data suggests that the tram in front of Mr Langdale on the trip to the city may have left North Coburg early. 28 The Kestrel data shows that Mr Langdale lost significant time between Collins Street and the Haymarket and this in consistent with Mr Langdale’s evidence that he lost time due to overcrowding of the stop at Latrobe Street. Ms Attard agreed that customer service officers may have been moved from their usual location due to the grand prix.29 The data shows that on the trip out of the city at 8.42am the Route 19 tram which followed Mr Langdale was obviously delayed by Mr Langdale’s tram. However, the Route 19 tram behind that tram was five minutes behind and it was also significantly delayed being 10 minutes late at Brunswick. There is no obvious reason for the delay to that tram. No Kestrel data was provided for routes other than Route 19. Other routes share the line in the city and may have contributed to delay or may also have been delayed.

[75] There are reasons to question why Mr Langdale was so late on this day but there is no proper basis to find that he was deliberately delaying the service.

13 March 2014 (morning)

[76] Fleet operations reported that Mr Langdale was 13 minutes late on the up and then 16 minutes late on the down and this delayed two following services. Ms Attard said that Mr Langdale was the only one running late and that he delayed other trams.

[77] Ms Attard in cross examination conceded that Mr Langdale was delivered the tram seven minutes late and that this was clearly not his fault. 30 The Kestrel data shows that as a consequence Mr Langdale left the North Coburg terminus 5 minutes late. A number of trams in front of Mr Langdale had been delayed by up to seven minutes by the time that they reached the city. The tram immediately in front of Mr Langdale was running one minute early at Coburg and as a result there was a nine minute gap before Mr Langdale’s tram arrived at that point at 7.48 am. I am satisfied that this would have meant that Mr Langdale faced significant delays due to heavy passenger loading. A number of other trams faced significant delays later in the morning which could not have had anything to do with Mr Langdale. Trams 2042, 2101 and 2118 all lost between 13 and 20 minutes on the trip to the city leaving North Coburg around 9.30am. Tram 2056 arrived at North Coburg ten minutes late after leaving the city at 9.49am. On the out trip around the time of Mr Langdale’s delayed departure at 8.31am the trams in front also experienced significant delays and lost around 7 minutes between the city and Parkville. Mr Langdale left nine minutes late and lost a further 11 minutes by the time he reached Parkville.

[78] Ms Attard conceded that delays for Mr Langdale could have snowballed due to the gap between his Route 19 service and the one in front of him and she also accepted that there could have been traffic delays. 31

[79] There is no basis to conclude that Mr Langdale was deliberately delaying the service.

13 March (afternoon)

[80] There are two anonymous complaints from drivers about Mr Langdale from the afternoon of 13 March 2014. 32 Mr Langdale does recall this day. I speculate this might be because he was aware of complaints being made given that at least some of them were raised with him by fleet operations on the day. I am satisfied from the detailed nature of the evidence provided by Mr Langdale and by the confident manner in which it was delivered that Mr Langdale did have a clear memory of the events on the afternoon of 13 March 2014. I accept Mr Langdale’s explanations of the events in the absence of any opportunity to cross examine those who raised the complaints. I am satisfied that Mr Langdale is in a much better position to know what was going on in his mind and in his tram than a driver in a following tram. Mr Langdale’s responses to the particulars of the complaints are quite detailed.33

[81] The complainant says that Mr Langdale was driving very slowly in Lygon Street. The complainant says that he caught up with Mr Langdale at Brunswick Road and then observed Mr Langdale drive very slowly down Lygon Street stopping at every tram stop even though at most stops no passengers boarded or alighted. The Kestrel data shows that the complainants tram was running one minute early from the terminus until Brunswick Road. The complainant was three minutes late leaving Elgin and Lygon Street. Mr Langdale took 11 minutes to travel down Lygon Street to Elgin Street. The preceding tram took 9 minutes. A number of other trams around that time took 8 or 9 minutes. 34 The Kestrel data does not suggest Mr Langdale was deliberately delaying the service particularly when he started off running five minutes late and the number 1 route tram in front of him was one minute early which may have resulted in extra loading. It is accepted that Mr Langdale’s tram was delivered to him eight minutes late and there is no suggestion that he was responsible for this delay in any way.

[82] Mr Langdale says that there was a Route 8 tram a few stops in front of him which limited his speed. He also says that there was a passenger on board who was uncertain of the stop they wanted and pulled the cord twice but did not alight the tram. Mr Langdale says that at Lygon and Elgin Street he did miss the T light twice. He says that the first time it was because the light had already been up when he closed the doors and he judged that because the light is very short he would not be able to safely complete the journey through the intersection. He then waited for a female passenger who was across the road. Mr Langdale says that he was not aware that the tram behind him was a Route 1 tram and he thought that it might be a Route 8 tram and that the passenger may have been seeking the Route 1 tram.

[83] The complainant says that Mr Langdale missed two sets of lights at the next stop. Mr Langdale says that there was a passenger standing in the step well and the doors were not closing. He thought that it might have been a defective door and went to investigate and then asked the passenger to move.

[84] The next stop is the University and the second complainant says that Mr Langdale stopped in the middle of the stop because instead of waiting for the two trams in front to depart he opened his doors behind the second departing tram. The second complainant says that as a result the following tram was half in and half out of the stop and was blocking the pedestrian crossing and that this continued for longer than necessary as Mr Langdale remained stationary after all passengers had boarded and alighted. Mr Langdale says that he was talking to fleet operations about what had happened earlier at Lygon and Swanston Streets and this is why he was stationary after passengers had boarded. Mr Langdale correctly pointed out that the following tram should not have entered the stop if there was not proper clearance.

[85] The second complainant says that Mr Langdale missed lights at Queensbury Street and then at Franklin Street, Collins Street and Flinders Street. Mr Langdale says that at Queensbury Street the stop has been removed and pedestrians sometimes stand in the small remaining island. Mr Langdale says that for safety reasons he slows down at that point. Mr Langdale says that there were two trams in front of him so he could not safely proceed at the other intersections in Swanston Street.

[86] The second complainant says that at Latrobe Street Mr Langdale was in the second position loading and unloading and as a result the following tram was obstructing the pedestrian crossing. Mr Langdale says that the following tram should not have entered the intersection.

[87] The first complainant says that Mr Langdale stopped at Bourke Street and went to the back of the tram to change the destination causing further delay. Mr Langdale says that this happened at Latrobe Street and there were a number of trams in front of him at this stage. The first complainant then says that at Flinders and Swanston Street Mr Langdale missed a cycle of lights when there was no traffic in the intersection. Mr Langdale says that there were trams stationary over the other side of the intersection and there was no space for him to move and clear the intersection.

[88] No data was provided in respect to the trams for other routes in Lygon Street and Swanston Streets. Given the absence of this data and the absence of the complainants as witnesses I am satisfied that Mr Langdale’s explanations are plausible. The Kestrel data shows that Mr Langdale was running very late when he reached the city but he did not lose more than one minute when travelling between Latrobe Street and Flinders Street. If the statements of the complainants were true then one would have expected Mr Langdale to have lost further time on Swanston Street.

[89] I am not satisfied that Mr Langdale was deliberately delaying the service on 13 March 2014.

22 May 2014

[90] An anonymous driver made a report on 3 June 2014 about a conversation they allegedly had with Mr Langdale on 22 May 2014. The report states that Mr Langdale “stated proudly that he purposely drives slowly without care or concern that he is disrupting the service, causing delays for drivers behind him and happily stating that “I never see the terminus, I just get short shunted.”” 35 I consider that it would be most unusual for a driver to say something like this to another driver. It is of course possible, but given that the complainant is not available to give evidence, I am not satisfied that it is probable given that Mr Langdale denies the conversation took place and that Mr Langdale’s diary and pay slip shows that he was not at work on 22 May 2014.36

25 March 2014

[91] This is the only negative incident where Ms Attard is a direct witness. Ms Attard and three other team managers were returning from a conference in the city and they travelled on Mr Langdale’s tram from Elizabeth Street and Collins Street to the Brunswick depot.

[92] Ms Attard summarises her findings in her report. 37 The reports of the managers which are referred to in Ms Attard’s report were included in the discovered documents but they were not part of the evidence. The managers were not called to give evidence and I am satisfied that there is no reason why they could not have been.

[93] Ms Attard states that at Collins Street all the passengers had boarded and the lights were green but Mr Langdale remained stationary. Then he went on to the next set of lights but he waited approximately six seconds before closing the doors and taking off. Ms Attard says that this was repeated at every major stop or intersection which was controlled by lights. At Franklin Street where there is no stop he slowed down to a walking pace for approximately fifteen to twenty meters before he came to a complete stop even though the lights were green. Ms Attard says that all trams were able to maintain schedule or near schedule apart from Mr Langdale and those behind him.

[94] Ms Attard was not able to be cross examined about this incident apart from her confirming that she had certainly found that Mr Langdale was deliberately late running on that date.

[95] The Kestrel report shows that at all data points on the relevant trip Mr Langdale’s tram is between one and three minutes behind the table 616 tram. The table 616 tram lost seven minutes on the outbound journey and Mr Langdale’s tram lost six minutes on that journey. 38 It is also possible that in Elizabeth Street there were trams on other routes which may have affected delays to the service and the capacity of Mr Langdale to safely enter intersections or stops.

[96] Ms Attard says that she examined all the relevant data and in the chronology which accompanied her report 39 says that all other services were able to maintain on or near schedule. However, it is clear from the Kestrel data that this is not the case and that Mr Langdale was closely following another Route 19 tram and any delays to the Route 19 service cannot be attributed to Mr Langdale.

[97] I do not exclude the possibility that the managers did observe Mr Langdale implement some less than optimal driver strategies. However, it is clear from the Kestrel Report data that the criticisms are exaggerated and not in a proper context.

3 June 2014

[98] Ms Attard says that an anonymous driver reported on 4 June 2014 that Mr Langdale had been dragging the road with nothing in front of him and no traffic and no reason to run late. No actual report has been provided as part of Yarra Trams’ evidence. Neither the driver nor Ms Attard were available to be cross examined about this incident.

[99] In the second half of his shift Mr Langdale picked up a tram that was running three minutes late. He was 1 minute late leaving North Coburg and then three minutes late leaving the city terminus. He then lost seven minutes on the trip to North Coburg and left there 7 minutes late and left the city again still 7 minutes late and finished his shift at the depot 14 minutes late. I am satisfied that there was no advantage to Mr Langdale as a result of his late running and in fact he was inconvenienced because he finished his shift late.

[100] The Kestrel report does not support Ms Attard’s statement that all other services were able to maintain on or near schedule. The second tram behind Mr Langdale was delayed to a similar extent and at similar points on the trip from the city to North Coburg around 4pm. 40 The two trams in front of Mr Langdale on the trip from North Coburg to the city around 3.30pm were delayed to a similar extent and at similar points on the trip.

[101] Mr Langdale lost six minutes on the trip leaving the city at 6.05pm even though there was another Route 19 tram which had been shunted in front of him (Tram B6). He left Collins Street two minutes behind that tram but he was six minutes behind that tram by the time he got to the terminus. There is nothing obvious to explain this poor performance and I am satisfied that this meant that there were sound reasons to question Mr Langdale’s performance on this trip. However, there are many possible innocent explanations for a four minute delay. As this was Mr Langdale’s last trip the delay caused inconvenience to Mr Langdale.

[102] I am not satisfied that there is a basis to conclude that Mr Langdale was deliberately delaying the service on 13 March 2014.

16 June 2014 and 20 June 2014

[103] An anonymous driver reported that Mr Langdale’s route 8 tram turned in front of him (a route 1 tram) at Moreland Road on the way to the city on 16 June 2014. He says that Mr Langdale picked up at every stop and was slow at departing after each stop. He said that the doors closed some ten seconds after the last passenger boarded. After six stops he was a minute late and then he was six minutes late once he had reached Southbank Boulevard south of the city.

[104] Mr Langdale gave evidence that he remembered the day and it was a rainy day. Mr Langdale said that he was taking off slowly to avoid passenger falls and that sometimes closure of the door was delayed by passengers standing in the stairwell to use the Myki ticket machine. Mr Langdale said that he was heavily loaded and he had to ask people to move from the doors. 41 No Kestrel data was provided for other trams or other routes on this day. Data is provided for Mr Langdale’s tram on 18 June 2014 but this does not appear to be relevant.

[105] The same anonymous driver reported that on 20 June 2014 he was following a route 8 tram towards the city from Moreland Road. The tram appeared to be having difficulties with a door from Melbourne University onwards. At Franklin Street the driver was opening and closing the door several times. After two minutes the complaining driver said he asked Mr Langdale if he could help and Mr Langdale was speaking to fleet operations and said “fleet knows about it, it’s alright”. There were four trams waiting behind at this point. A line officer arrived four minutes later and cleared an object from the door. By this time the complaining driver was seven minutes late.

[106] Ms Attard and the complaining driver suggest that the service was delayed because instead of fixing the problem himself, Mr Langdale waited for the line officer to arrive. I am satisfied that Mr Langdale’s evidence contradicting this is plausible and in the absence of direct evidence from the complainant or the line officer I accept that evidence. Yarra Trams and Ms Attard could have sought evidence from the line officer.

[107] Mr Langdale said that he did remember a problem with the door on this day. Mr Langdale said that it was the front door that was the problem and that he undertook the fault finding procedure. The doors were isolated so that they were no longer a problem. Mr Langdale said that he had to close the doors by hand. He was not able to continue with the doors operating normally. 42 There is no direct evidence to contradict Mr Langdale’s evidence that there was a vehicle fault which caused the delay. No Kestrel data or maintenance logs were provided for trams on this day.

24 June 2014

[108] A report was logged by fleet operations that Mr Langdale was running late. Brunswick 15 run tram was shunted over the top of Mr Langdale’s tram at the Elizabeth Street terminus. The 15 run tram was able to maintain time despite picking up passengers whilst Mr Langdale’s tram which was following was 11 minutes late at the Avenue stop. Yarra Trams submit that as an experienced driver there is no reason why Mr Langdale could not have driven to schedule on that trip.

[109] The only Kestrel data provided for the day is that for Mr Langdale’s tram 43 and what appears to be the following tram on that route (table 74). The data shows that Mr Langdale took over the tram at the depot when it was running 4 minutes late and the next tram on table 74 was close behind. Mr Langdale moved the tram within 30 seconds of arrival at the changeover point. By the time he reached Latrobe Street he was 11 minutes late and table 74 was right behind him and 7 minutes late. He was short shunted at Lonsdale Street and was then only two minutes late. He lost only two minutes in the trip to North Coburg. The tram behind on table 74 left the terminus 6 minutes late and was 11 minutes late by the time it reached North Coburg. Mr Langdale had arrived at North Coburg well before the schedule departure time but was three minutes late at the first timing point after the terminus on the way to the city and he was nine minutes late by the time he reached the city at 6.18pm. Table 74 was six minutes behind Mr Langdale at the first timing point after the terminus on the way to the city but was right behind Mr Langdale by the time they reached Haymarket. At the city terminus Table 74 was shunted over the top of Mr Langdale and was then on time or early until leaving the city and arrived at North Coburg two minutes late. Mr Langdale on the trip out of the city leaving at 6.23pm continued to lose time and was four minutes behind Table 74 at Latrobe Street and maintained that distance behind Table 74 for the rest of the trip and as a consequence Mr Langdale left North Coburg on the next trip to the city six minutes late and by the time he reached the city terminus he was 18 minutes late and this increased to 20 minutes late by the time he reached North Coburg again at 8.37pm.

[110] This data raises some serious questions about Mr Langdale’s on time running performance. It is obvious why the driver of Table 74 would be annoyed. However, the data and evidence provided is totally inadequate to reach a conclusion that Mr Langdale was responsible. There is no data provided for the trams on other routes which could have contributed to the delays. There is no data provided in respect to the trams in front of Mr Langdale on the same route. There were obviously factors which led to the delay in the tram service at the start of the shift. Other trams were delayed. Table 74 on the trip from the city at 4.51pm was 11 minutes late by the time it reached North Coburg. Mr Langdale reached that terminus 12 minutes earlier so could not possibly have been the cause of that delay. The experience of Table 74 shows that when a tram is running late it is very common for that delay to become worse due to the combination of traffic and heavy loading.

[111] No explanation was provided as to why the relevant data was not provided. The evidence of Mr Cushion suggests that the data is readily available.

d. Does consideration of the alleged incidents taken as a whole justify a finding that Mr Langdale deliberately dragged the road?

[112] Apart from the cumulative weight of the incidents reported Yarra Trams relies upon the punctuality data. In many cases Ms Attard compared punctuality data of Mr Langdale on a particular day or week with the average in the depot or for a particular table over a three month period. In my view this is of no real assistance. Trams are very different to other vehicles in traffic. They cannot pass each other and they cannot leave the tracks to divert around traffic and other obstructions. The sources of potential delay are many and they are extremely variable from minute to minute and from day to day.

[113] On the days when the incidents occurred the data shows that Mr Langdale’s tram was often running late. It necessarily follows that the punctuality data for Mr Langdale for those days will be poor and as a consequence this will worsen his data for the week. I accept that in many cases the punctuality data for those days is worse than the average punctuality data for the particular table over a longer period. However, trams will be late from time to time on every table. The question is still the same, what was the reason why Mr Langdale’s tram was late on the days in question? The punctuality data provided does not assist in answering that question.

[114] What the punctuality data does show is that overall Mr Langdale was a poor performer in respect to punctuality. However, if one compares Mr Langdale over a given time period with other drivers he was not the worst driver in respect to punctuality in the depot. Some care needs to be taken with the conclusions to be drawn on this issue. Some drivers with better performance are running early more often than Mr Langdale. As discussed earlier, running early is a cause of delay to other trams and a cause of great inconvenience to customers. Also some drivers may be able to keep to time by driving too fast, stopping too roughly, and missing passengers. However, I accept some poor punctuality is caused by inexperienced drivers who lack the necessary confidence and skill and that Mr Langdale has the necessary skill and experience.

[115] In some of the incidents raised by Mr Langdale he was short shunted due to late running. However, there are a number of incidents where he was not short shunted and as a result had longer periods of dealing with the stress of heavy loading and running late and finished his shift or shift portion late. In some cases Mr Langdale was short shunted but he still finished his shift or shift portion late. In a few cases Mr Langdale was short shunted and was able to finish his shift or shift portion on time. Looking at the evidence as a whole I am not satisfied that Mr Langdale achieved an advantage from late running through for example earlier finishes or less work.

[116] My earlier analysis of each of the particular incidents shows that the evidence does not support a finding that each of those particular incidents was caused by Mr Langdale deliberately dragging the road. In some cases there is a logical explanation for the delays whilst in others the delays to Mr Langdale’s tram are unusual and difficult to understand. In respect to those incidents where the delays are difficult to understand Yarra Trams could have provided further evidence to establish or exclude possible explanations. In this circumstance it would be unfair and unreasonable to conclude that the reason for these difficult to understand delays was Mr Langdale dragging the road.

[117] I am satisfied, looking at the punctuality data and the incidents taken as a whole, that Mr Langdale is not performing well in respect to punctuality. His level of late running is unlikely to be fully explained simply by reference to traffic delays, heavy loading, inadequacies of timetabling, vehicle breakdowns, the particular shifts chosen by Mr Langdale and the like. As an experienced driver his performance over a twelve month period should not be so far below the depot average. However, there are many possible reasons why Mr Langdale might be performing poorly other than deliberately dragging the road. It is possible that there are health reasons for poor performance. It is possible that Mr Langdale is not coping well when faced with the stressful situation of being late and dealing with heavy traffic and or loading. It is possible that Mr Langdale may be applying inadequate diligence or effort to his work when his tram is delayed.

[118] I do not exclude the possibility that Mr Langdale was dragging the road or deliberately delaying the service but I am not satisfied that this is the case on the balance of probabilities.

[119] There was therefore no valid reason for termination for serious misconduct.

e. If there was no valid reason for termination for serious misconduct, did the conduct or performance of Mr Langdale otherwise provide a valid reason for termination?

[120] I am satisfied that poor on time performance could in some circumstances be a valid reason for termination of a tram driver with notice. Late running is very important to Yarra Trams and the community. Yarra Trams face potential penalties and even termination of contract if punctuality targets are not met. Tram driver behaviour is one element which can contribute to the ability of Yarra Trams to meet punctuality targets.

[121] Given the variability of conditions and the multiple causes of delay and the need to balance on time performance with safety and customer service this is a difficult matter for Yarra Trams management. However, Yarra Trams does have the capacity to monitor and observe drivers with and without notice. It does have the capacity to appropriately train and counsel drivers. Of course it needs to deal with this issue consistently and fairly. By definition about half of the drivers will have punctuality performance which is below average. For obvious reasons given that driver behaviour is only one factor in causing delays, there is no set level of punctuality performance required by Yarra Trams.

[122] For the reasons discussed earlier I am satisfied that Mr Langdale’s on time performance was poor. Yarra Trams would be justified in taking steps to formally warn Mr Langdale in respect to this and to take steps to give Mr Langdale the opportunity to improve.

[123] Ms Attard, who was Mr Langdale’s supervisor, did advise him that his on time performance was poor and did advise him that deliberate delaying of the tram service could result in discipline. Ms Attard alerted Mr Langdale to the fact that there were concerns about his on time performance on 13 January and 25 February 2014. Ms Attard says that she raised the issue on two other occasions but she does not recall the dates or the details. Mr Langdale denies these other conversations occurred. Given the focus Ms Attard otherwise put on the investigation I consider the lack of specificity unusual and I prefer the evidence of Mr Langdale on this point. There was no formal warning, there was no direct accusation put to Mr Langdale prior to notice of the termination meeting that he was deliberately delaying the tram service and there was no warning that continued poor on time performance could lead to disciplinary consequences. I am not satisfied that a final warning which is ten years old can fairly be regarded as an appropriate warning and opportunity to improve.

[124] During the termination process there was reference to Mr Langdale’s conduct being in breach of the Yarra Trams Rules and Procedures. Yarra Trams did not put those rules into evidence and there was some doubt in Ms Attard’s mind about the particular version of the rules which was applicable. 44 In my view the reference to the Rules in Ms Attard’s investigation report is to reinforce the charge that Mr Langdale was “deliberately driving slow to delay the tram service.’ In other words Ms Attard was saying that the conduct of deliberately driving slow to delay the tram service was a breach of Rule 9 General Conduct, Rule 54 Tram Services Running to Schedule and Rule 77 Road Safety and Tram Operational Rules. The same approach is taken in the termination letter and I am satisfied that it has the same meaning. I disagree with the contention in the Yarra Trams final written submission that “implicit in allegation that Mr Langdale deliberately drove slowly to delay the tram services and the rule breaches is that Mr Langdale was a poor performer in regard to punctuality”. I am not satisfied that Mr Langdale was dismissed for poor on time running performance but rather he was dismissed for deliberately delaying the tram service.

[125] Mr Langdale accepted that he was a cautious driver. He gave uncontested evidence of his excellent record in respect to safety and customer relations. The data shows that Mr Langdale’s on time performance over a year was well below the depot average. However, on time performance can be affected by the types of shifts favoured by particular drivers and a number of other factors. Although I accept that the data shows that Mr Langdale was a poor performer in respect to on time running, the data did not show Mr Langdale was consistently the worst driver in respect to on time running performance and there was no evidence of other drivers being disciplined for poor on time running performance. The argument that on time performance constituted a valid reason for termination was not advanced during the proceedings or in the termination process; however, it was raised by Yarra Trams in final written submissions.

[126] In summary, Mr Langdale’s conduct in respect to customer service and safety was excellent but his performance in respect to on time running was poor. However, there was no recent formal warning in respect to poor performance. I accept that the final warning issued more than 10 years earlier is a relevant consideration but I am not satisfied that it provides a basis for termination without further warning unless deliberate delay to the service was established. This is particularly the case given Mr Langdale’s very long period of service and his good record in respect to safety and customer service. There was no valid reason to terminate Mr Langdale’s employment due to poor performance.

f. Did Mr Langdale have an adequate and reasonable opportunity to respond to the allegations at the termination meeting on 16 July 2014? (Section 387(c) and (h))

[127] Mr Langdale was not given any formal warning or counselling about his on time running performance or his conduct in dragging the road. I accept that the issue of on time running was raised as part of the performance effectiveness review process, which Ms Attard accepted was not a disciplinary process. 45 The outcome of the performance effectiveness review process was that Mr Langdale was given a target to improve punctuality performance and this was to be reviewed on 25 May 2014. That review did not occur prior to the termination meeting. I accept that Ms Attard and Mr Langdale also discussed the issue of late running on 13 January 2014. Ms Attard produced a note of the conversation46 which says that she raised Mr Langdale’s below average punctuality and told Mr Langdale that deliberately dragging the road could result in dismissal. However, she did not accuse Mr Langdale of deliberately dragging the road.

[128] Yarra Trams did attempt to arrange a disciplinary meeting in April 2014 but Mr Langdale was not advised of this because he was off work due to illness and the proposed meeting was postponed.

[129] Mr Langdale was advised on 14 July 2014 that he was being suspended pending a disciplinary hearing and that the allegation was wilful misconduct; namely delaying services. No other details were provided in advance of the disciplinary meeting. Mr Langdale was represented by Mr Brady from the union at the meeting.

[130] At the meeting the twenty page investigation report was read to Mr Langdale. This process took the best part of an hour. Yarra Trams at the meeting offered to also read out the text of the complaints which were referred to in the report. Yarra Trams refused to allow Mr Langdale or his representative to read the report and accompanying statements, documents and running time data. 47

[131] There is conflicting evidence as to whether or not Mr Langdale or his representative could have accessed the running time data during the meeting. The data in the attachment to Ms Attard’s report was in the room when the termination meeting took place. Mr Berti and Ms Attard say that Mr Langdale was told “if we want to refer to any of that stuff, we can always refer to it and I’ll read out for you what’s in there.” 48 Mr Brady and Mr Langdale deny that they were told that they could access the material. The annexures to the report were produced in the proceedings and they run to more than 300 pages. Most of the report is various tables which would be totally incomprehensible if read out. The tables can only be understood when actually examined in some detail. What is on one line needs to compared to what is on other lines often on different pages. In some cases it is necessary to read the data from right to left and on other occasions it is read from left to right. There are various symbols and abbreviations. I am satisfied that if the offer to read out material in the annexures was made it was a meaningless offer as it would in no way have assisted Mr Langdale to understand the allegations and respond to them.

[132] Mr Langdale says that he had difficulty processing and remembering the detail of the allegations given the length and complexity of the twenty page report as it was read out. 49

[133] The investigation by Ms Attard was over four months and it was clear from the evidence that it took her a great deal of time and effort to be able to understand and compile the relevant information. Despite this, in the proceedings Ms Attard was unable to recall particular events included in the investigation report without being able to access the documentation. 50

[134] I am satisfied that in the circumstances of this case given:

● The length of time between the events and the disciplinary meeting;
● The very large number of dates and incidents;
● The importance of fine details such as times, places, tram stops, tram routes; and
● The large variety of factors which contribute to delays;
● The failure to provide Mr Langdale with a copy of the investigation report and supporting statements and data meant that Mr Langdale did not have an adequate and reasonable opportunity to respond to the allegations at the termination meeting on 16 July 2014.

[135] I am satisfied that it should have been obvious to Mr Berti and Ms Attard that it was not reasonable to expect a person to be able to comprehend and respond to the material without access to the written material. I am satisfied that in the circumstances of this case this was a very serious denial of procedural fairness.

[136] I also consider that the failure to put the allegations to Mr Langdale until so long after the majority of incidents occurred may also have denied Mr Langdale a reasonable opportunity to respond. The particular allegations relate to the fine detail of behaviour on particular tram runs in circumstances where drivers are required to travel over the same route many times a day. As time goes by it is not reasonable to expect that a driver will remember the details of the traffic conditions, passenger loading, and tram vehicle characteristics of a particular trip on a particular run on a particular day. I accept that in respect to some allegations Mr Langdale’s illness may have contributed to the delay in putting the allegations to him. However, this was not the case in respect to all of the allegations. Given my earlier finding concerning access to the report it is not necessary to finally determine that this was a denial of a reasonable opportunity to respond. However, I am satisfied that this matter does contribute to a finding that the termination was harsh and unfair under Section 387(h), other matters.

g. Did Yarra Trams act consistently with its own discipline policy and the relevant enterprise agreement in the investigation and discipline of Mr Langdale? (Section 387(h))

[137] I accept the submission of Mr Langdale that Yarra Trams is required to comply with the terms of the Yarra Trams Disciplinary policy 51 by virtue of Clause 11 of the Yarra Trams Enterprise Agreement 2102 – Operations. The Disciplinary Policy may only be amended by agreement between Yarra Trams and the RTBU.

[138] I also accept the submission of Mr Langdale that there were a number of breaches of the Disciplinary Policy in the circumstances of this case.

[139] I am not satisfied that Clause 3.1 of the Disciplinary Policy was complied with. This provision requires that disciplinary procedures should be commenced and concluded as soon as possible following the alleged incident provided that all relevant facts, including where appropriate written witness statements, are available. The evidence in respect to a number of the allegations was available many months before they were put to Mr Langdale.

[140] I am not satisfied that Clause 3.3 of the Disciplinary Policy has been complied with. The policy requires “an investigation should be conducted promptly and all reasonable steps should be taken to obtain the relevant facts especially detailed responses and explanations of all the allegations and complaints against the employee concerned.” Some of the allegations were not investigated until many months after they occurred and reasonable steps were not taken to obtain Mr Langdale’s response as part of a prompt investigation. Related to this, Clause 7.1 provides that interviews should be conducted as soon as possible. Ms Attard and Mr Bertie conceded that the employee concerned should be interviewed about the allegation as soon as possible.

[141] I am not satisfied that Clause 7(b) of the Disciplinary Policy has been complied with. That provision requires a written employee record of interview document. The document should include the allegations and/or complaints made to the employee during such a procedure and a detailed outline of the employee’s explanation or response to each allegation. No such record was kept.

[142] I am satisfied that these provisions taken together mean that there is a requirement to interview the employee about the allegations as part of the investigation. In this case the report was prepared and Mr Langdale was required to attend the termination meeting, which should have been the opportunity to respond to the investigation report and any proposed disciplinary action, prior to any interview.

[143] I am not satisfied that Mr Langdale was provided with his rights to an internal appeal as required by Clause 4.6 of the Disciplinary Policy.

[144] Mr Langdale argues that Clause 9 of the disciplinary procedure which provides for a termination checklist to be completed has not been complied with. The order for the production of documents issued on 3 November 2014 required production of documents related to the termination checklist as required by the Yarra Trams Disciplinary Counselling Policy and Procedures. Yarra Trams said that no such document existed. However, Mr Berti gave evidence that he did complete the checklist and had not been asked to provide it. 52 Mr Langdale submits that I should infer from the failure to provide these documents that they would not have been helpful to Yarra Trams case. I accept Mr Berti’s evidence on this point.

[145] Mr Langdale argues that the dismissal was harsh because the termination took place at the meeting on 16 July 2014 and the written notice was provided on 22 July 2014 in circumstances where the Agreement requires (Clause 14.1(a)) that written notice must be given on the day of termination. I am satisfied that this breach of the Agreement did occur.

[146] I consider that the failure of Yarra Trams to comply with its own Disciplinary Policy and Enterprise Agreement stands in favour of a finding that the dismissal was both unfair and harsh.

h. Conclusion in respect to unfair dismissal?

[147] I have found that:

a. There was no valid reason for the termination.

b. Mr Langdale was notified of the reason.

c. Mr Langdale was not given an adequate or reasonable opportunity to respond to the alleged misconduct.

d. Mr Langdale was not refused the opportunity to be represented.

e. The termination was related to conduct not performance and Section 387(e) is therefore not relevant to this case.

f. Yarra Trams is a large employer with access to dedicated human resource management expertise. These matters were not likely to have had any impact on the procedures followed in effecting the dismissal (Section 387(f) and (g)).

g. Yarra Trams failed to act consistently with its own disciplinary policy and the relevant enterprise agreement in the investigation and discipline of Mr Langdale and this is a relevant consideration under Section 387(h).

h. The long delays in advising Mr Langdale of the allegations and providing him with the opportunity to respond to them was procedurally unfair and harsh (Section 387(h)).

[148] I am therefore satisfied that the dismissal was harsh, unjust and unfair. I consider that the breaches of procedural fairness in the circumstances of this case are so serious, particularly given the long service of Mr Langdale, that I would have found that the termination was unfair and harsh even if I am wrong about the matter of valid reason.

i. If the termination was unfair is reinstatement an appropriate remedy?

[149] Mr Langdale seeks reinstatement to the Brunswick Depot as a tram driver or alternatively to another tram depot within reasonable distance of his home. Mr Langdale also seeks an order for continuity of employment and an order for lost wages. Mr Langdale submitted that as a member of a defined benefit superannuation fund any remedy other than reinstatement would cause a lifelong financial detriment to him.

[150] Yarra Trams submits that reinstatement is not appropriate and is otherwise impractical because:

a. The employment relationship between the Applicant and the Respondent has broken down and there are sound and rational reasons why Yarra Trams asserts that it has lost trust and confidence in Mr Langdale’s ability to perform his duties as a driver.

b. Reinstatement would put Yarra Trams reputation at risk given Mr Langdale’s repeated disregard for its operations.

c. Reinstatement would send a message that an employee can deliberately drag the road and get away with it.

d. Mr Langdale does not wish to return to the Brunswick Depot on his own admission. 53

e. Mr Langdale incites employees because of his late running. 54

f. Mr Langdale’s conduct causes stress and anxiety to drivers who follow him.

g. Mr Langdale is a poor performer in respect to punctuality particularly given his many years of experience.

h. Further training or alternatives to dismissal would be of little effect given he is able to drive well when knowingly observed.

i. The employer should not have to bear the cost of constantly monitoring Mr Langdale.

j. There are no vacancies at Brunswick Depot. 55

[151] I do not accept that the employment relationship has broken down irretrievably. Ms Attard gave evidence that she had a good working relationship with Mr Langdale and that he was always respectful and polite. 56 There was no direct evidence to the contrary. Mr Berti also gave evidence that he had no issues with Mr Langdale other than the allegations made in the investigation report.57 It is not in contention that Mr Langdale is a long serving employee who has a good customer service record and an excellent safety record. There is nothing adverse on his record from the last ten years.

[152] There was no direct evidence which established any health and safety impacts which can be properly attributed to Mr Langdale’s behaviour.

[153] As I have found that there is not a proper basis to conclude that Mr Langdale has deliberately delayed the tram service this cannot be the basis for arguing a loss of trust and confidence.

[154] I do not accept the submission that Mr Langdale does not wish to return to the Brunswick Depot. Mr Langdale said that there was no reason why he could not return to the depot. He did however say that “it’s not a very happy environment to go back to” and expressed a preference to go back to Essendon Depot. 58

[155] I accept that Mr Langdale is a poor performer in respect to punctuality however there are a number of other drivers in that situation and they are still working at Brunswick Depot and there is no evidence that they have faced any disciplinary action. I do not accept that Mr Langdale’s performance cannot be improved. If it cannot then just like any other employee he can be subject to disciplinary action for poor performance. The suggestion that because Mr Langdale performed well when he was being observed there is no prospect that he can perform appropriately in the future except if he is monitored closely is based upon the evidence of Ms Attard concerning the 13 and 14 January 2014 incidents. As discussed earlier I did not accept Ms Attard’s conclusions in respect to the 14 January 2014 incident.

[156] I accept that there are some significant question marks about Mr Langdale’s performance in incidents which have arisen since his last performance effectiveness review. However, as planned in that review this should be the subject of appropriate follow up review.

[157] I am not satisfied that the suggestion that Mr Langdale incites employees because of his late running is a basis to not order reinstatement. Mr Langdale conceded that he had some differences with some other drivers and that he had been accused of dragging the road. It is common in large workplaces for there to be personality differences. Mr Langdale denied that he gloated that he was untouchable and there was no direct evidence to the contrary.

[158] The lack of vacancies at a particular workplace is not in itself a bar to reinstatement. Yarra Trams is a large employer and a level of turnover amongst drivers can be expected to occur including by retirement.

[159] I am satisfied that reinstatement as a tram driver is the appropriate remedy and I will order reinstatement. I also consider that an order for continuity of employment from the date of termination is appropriate particularly given my findings concerning valid reason and the long service of Mr Langdale.

[160] I will order reinstatement from today’s date. However, I am open to the possibility that it may be better for all involved for Mr Langdale to work from a different depot which is reasonably accessible to Mr Langdale’s home taking into account that he is required to work variable and at times broken shifts. Essendon depot meets that criterion. In the circumstances the determination as to whether reinstatement should be to the Brunswick depot or the Essendon depot should be left to the discretion of Yarra Trams. Reinstatement from today’s date is to the Brunswick Depot or, should Yarra Trams elect, within the next seven days, to the Essendon Depot.

[161] I have not found Mr Langdale guilty of any misconduct. I am satisfied that his on time performance has been poor but this is a matter which Yarra Trams can and should deal with as it would with any other driver. I am not satisfied that Mr Langdale’s poor on time performance has been established to be misconduct. The evidence presented by Yarra Trams was not sufficient to establish the reason for Mr Langdale’s poor on time performance.

[162] I will make an order to restore lost pay and I will make no deductions other than those required by Section 391(4) in respect to remuneration earnt. Mr Langdale did not earn any money from employment or other work during the period between the dismissal and the hearing of the matter. 59 Mr Langdale gave evidence in November that he was about to start some part time employment. The Order will therefore provide for restoration of lost pay during the period from the date of termination to the date reinstatement less any income earned from employment during that period. The Order will require Mr Langdale to provide a statutory declaration together with any pay slips or other evidence concerning his earnings from employment during the period within seven days to the Fair Work Commission and Yarra Trams. Leave will be given to either party to seek variation to the Order in the event that the details of the payment of lost pay are unable to be resolved within fourteen days.

COMMISSIONER

Appearances:

Mr N Campbell appeared for the Applicant.

Ms S Bingham appeared for the Respondent.

Hearing details:

2014

Melbourne

November 10, 11, 26 and 28

2015

Melbourne

January 15

May 1 and 5

Final written submissions:

15 June 2015

 1   See Exhibit Y6 Statement of Mr Cushion at para 16.

 2   Transcript of 5 May 201 at PN691 to PN696.

 3   See for example Exhibit Y3 Statement of Ms Attard at paras 48 to 49.

 4   Kestrel Report for 24 June 2014 Investigation Report Annexures, at Table 74.

 5   PN3759.

 6   PN3746 to PN3759.

 7   PN34.

 8   Closing submissions of the Applicant of 29 May 2015 at para 12.

 9   Exhibit Y3 Ms Attard Statement at para 64.

 10   Transcript of 15 January 2015, at PN152 to PN185.

 11   PN1732.

 12   Transcript of 15 January 2015 at PN52.

 13   PN3373.

 14   PN2393.

 15   PN3374.

 16   PN2951.

 17   PN2966 to PN2975.

 18   See page 5 of the Kestrel data for 13 February 2014 Investigation Report Annexures at Tables 58, 87 and 19.

 19   Exhibit Y2.

 20   Exhibit Y3, at Attachment TA4.

 21   PN3256 and PN3262.

 22   Exhibit Y2.

 23   Exhibit Y2.

 24   PN3379.

 25   PN3448.

 26   PN3380.

 27   PN410.

 28   Kestrel Report for 12 March 2014 Investigation Report Annexures at pages 1 and 8. Tram 2042 run 89 arrived North Coburg 7.36am and depart 7.37am.

 29   PN3843.

 30   PN3556 to PN3557.

 31   PN3603 to PN3610 and PN3595 to PN3596.

 32   Exhibit Y3, Attachment TA2.

 33   PN223 to PN288.

 34   Kestrel data for 13 March 2014 Investigation Report Annexures at page 6.

 35   Exhibit Y3, Attachment TA2.

 36   Exhibit L3 and L2.

 37   Exhibit Y3, Attachment T6 at page 16, and also see Attachment T5.

 38   Kestrel Report for 25 March 2014 Investigation Report Annexures at page 5.

 39   Exhibit Y3, Attachment TA5.

 40   See Kestrel Report for 3 June 2014 Investigation Report Annexures at page 3.

 41   PN317.

 42   PN323 to PN333.

 43   Kestrel Report for 24 June 2014 Investigation Report Annexures, Table 94.

 44   PN2820 to PN2853.

 45   PN3256 and PN3262.

 46   Exhibit Y3, Attachment TA3.

 47   Exhibit Y8 Statement of Mr Berti at para 10, and PN127.

 48   Exhibit Y8, Attachment BB1 at page 1.

 49   Exhibit L1 Statement of Langdale, at para 92.

 50   See for example PN2518 to PN2525.

 51   Exhibit L5, Attachment DB1.

 52   PN114 to PN118 of the proceedings of 15 January 2015.

 53   PN500.

 54   Exhibit Y8, Attachment BB1 at pages 4 and 5.

 55   Exhibit Y8, at paras 4 and 5.

 56   Exhibit Y3, at para 9.

 57   PN301 of final day of hearing.

 58   PN500.

 59   Exhibit L1, at para 114, and PN495 to PN499.

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