Mr Michael Wild v Queensland Rail Limited

[2012] FWA 3908

Note: An appeal pursuant to s.604 (C2012/4615) was lodged against this decision.

[2012] FWA 3908

FAIR WORK AUSTRALIA

DECISION

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

Mr Michael Wild
v
Queensland Rail Limited
(U2010/14189)

COMMISSIONER CRIBB MELBOURNE, 7 JUNE 2012

Application for unfair dismissal remedy.

[1] Mr Michael Wild (the applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. It is alleged that his dismissal by Queensland Rail Limited (the respondent) (QR) was harsh, unjust or unreasonable.

[2] The application was subject to conciliation on 8 December 2010 but the matter was not settled. The hearings took place on Monday 11 April 2011, Tuesday 12 April 2011, Wednesday 8 June 2011 and Thursday 9 June 2011. Written closing submissions on behalf of Mr Wild were filed on 30 June 2011 with Queensland Rail’s written closing submissions filed on 29 July 2011. Mr Wild did not elect to provide written submissions in reply which were due to be filed on 5 August 2011.

[3] Mr Wild was represented by Mr C Watters, of Counsel and Queensland Rail by Mr J Franken, lawyer.

[4] Evidence was given by Mr Wild. For Queensland Rail, Mr B Hamlet, Traincrew Manager; Mr B Williams, Driver in Charge; Mr L Higgins, Train Management Officer and Ms R Pocock, Senior Human Resources Adviser appeared as witnesses.

THE EVIDENCE

Mr Wild

[5] At the beginning of Mr Wild’s evidence, tendered into evidence was:

● A Certificate of Commendation from the Chief Executive of Queensland Rail (QR), dated 5 April 2002, for “an exemplary act of bravery which led to the saving of a life in March 2001.” 1

● A letter from the Acting General Manager, Passenger Service Delivery dated 22 June 2002 regarding his nomination as a contender for the Passenger Service Delivery Business Awards. 2

● A Bronze Medal for bravery awarded by the Royal Human Society of Australia on 27 August 2001. 3

● A feature article in QR’s All Aboard Magazine regarding Mr Wild’s bronze medal and commendation for bravery in saving someone’s life. 4

[6] Mr Wild confirmed various paragraphs of his statement and the Code of Conduct. 5 However, he disagreed with “(a) observe all rules, procedures and approved methods of work.” He said that he would not follow a directive if it is unsafe. It was stated that he would tell somebody that it was an unsafe work practice. If it was unsafe, Mr Wild said that he would not follow it - because it was unsafe. It was his view that it was his prerogative to make that call as he was in charge of safety on trains. He said that he could make that decision based on commonsense.6

[7] After further questioning by Mr Franken on this point and appearing to give contradictory answers, 7 Mr Wild clarified what he was saying as:

“ .... that I want to make it quite clear that it is unsafe - I feel it’s unsafe. If they say it’s safe I will do it if they really want me to do it, but not happy.” 8

[8] It was also Mr Wild’s evidence that he worked in accordance with work instructions and custom and practice and that they were equally important. This meant that if he was given an instruction, he would always follow it. He said that he believed (but was not 100% sure) that he had never failed to comply with any directive. However, there could be directives that he had not followed. This was stated to include when there was a change in policy and different directives were issued. Mr Wild agreed that in such a case, custom and practice would take a back seat because the directive would be the most important. 9

[9] Mr Wild indicated that he was instructed, encouraged and expected to perform assessments of potential risks on platforms by keeping the guard’s compartment door open to enable assessment of the platform. He said that this was not necessarily only when the train was stationary. It was explained that, when he commenced with QR, the custom and practice was that the door be open - there was no instruction as to whether the door had to be open or closed. He was “instructed and encouraged” to keep the door open when he was trained as a guard in 1976. 10

[10] With respect to Traincrew Notice 03/2009, dated 16 January 2009, it was Mr Wild’s evidence that he was aware of it and that he had probably never got a copy of it. He could not recall when he became aware of it. 11

Meeting on 17 August 2009

[11] It was confirmed by Mr Wild that he was invited to, and did attend, a meeting on 17 August 2010 regarding an allegation that the guard’s cab door was open as the train arrived at Bowen Hills station on 12 August 2010. He agreed that Mr Ring (Rail, Train and Bus Union (RTBU)) was with him at the meeting as was also Mr Nelson and Mr Williams from QR. He recalled that he was told something like - that the meeting was about an incident on 12 August 2010 and that Mr Williams wanted to talk to him about the open and closed door policy. 12

[12] Mr Wild recounted that, on 12 August 2010, Mr Williams had said to him that he wanted to talk to him about something and had held up Notice 03/2009 (about the door policy). Mr Wild had responded that he had already seen it and had walked away. It was recalled that Mr Williams had handed him the Notice which he saw the headline of. He had immediately handed it back with the comment that he had seen it. Mr Wild did not recall saying at the meeting on 17 August 2010 that he did not recall that conversation but did not deny that he said that. 13

[13] After having been provided with a paraphrased record of interview of the meeting on 17 August 2010, Mr Wild’s version of his encounter with Mr Williams on 12 August 2010 was:

● On the platform, Mr Williams tried to talk to him about what he saw as a transgression of a directive and gave him the Notice 03/2009. 14

● He had responded that he had seen it and gave it back to Mr Williams. 15

● He had then turned away, walked to the meal room and did not look back at Mr Williams. 16

● Mr Williams had an opportunity to say to him to “hang on a minute”, that he wanted to talk to him about something but he did not so therefore he kept on walking. However, he would have turned back if Mr Williams had told him that he wanted to talk to him further. However, Mr Williams did not say anything further to him and he did not ask him (Mr Williams) if there was anything else he wanted to say to him. It was Mr Wild’s view that he had seen the Notice and therefore that was the end of the story. 17 Mr Wild confirmed that, on 15 October 2009, at the Show Cause meeting, he had said that he had walked away because he believed that the conversation had ended. It was agreed that he did not say this at either the 17 August 2010 meeting or the 17 September 2010 meeting.18

● He swore (fuck off) when he went into the meal room. 19 There was some debate between Mr Wild and Mr Franken about whether Mr Wild had said “get fucked” or “fuck off”.20

● He had not sworn at Mr Williams. He was metres away from Mr Williams when he swore. 21 In answering questions, he had distinguished between being asked if he had sworn at Mr Williams and being asked if he had sworn.22

● The swearing was not directed at anybody (Mr Williams). It was not intended to be heard by anybody - he was just talking to himself. It was not in front of Mr Williams. 23

● Mr Williams may have heard him swear. 24

● The conversation between himself and Mr Williams lasted perhaps 5 seconds, maybe 10 seconds. 25

● The discussion between himself and Mr Williams occurred between 5 to 8 paces (steps) from the meal room door. 26 At the beginning of the next hearing day, Mr Franklin asked Mr Wild further questions about where the discussion had occurred. Mr Wild agreed that where he and Mr Williams had their conversation, was closer than 5 to 8 paces away from the meal room door.27 During re-examination, after the videotape was replayed, it was Mr Wild’s best guess that he probably took five steps to get to the meal room door.28

[14] After the video was played during the hearing, it was common ground that the conversation between himself and Mr Williams was most probably a 5 second discussion. 29 However, during later cross examination, Mr Wild assessed that the duration of his discussion with Mr Williams was maybe 3 or 4 seconds.30

[15] During the meeting on 17 August 2010, Mr Wild requested to be shown the video footage because he did not think that he had screwed the Notice up and thrown it back at Mr Williams. He therefore wanted to see the footage. 31 QR agreed to show it to Mr Wild at the next meeting as it was not available at that time.32 It was Mr Wild's evidence that he could not exactly remember what was said during the meeting on 17 August 2010.33

[16] It was stated by Mr Wild that he was not disputing that he and Mr Williams had had a conversation but he did not think that it took place on 12 August 2010. He thought that he was on a different train that day but he did not consider the actual date to be relevant. 34 He confirmed that he had not raised the issue of the date in any of the meetings he had with QR. This was because he believed that the critical issue was whether he had stood in the doorway of the train and not the date on which it had happened.35 In his statement, Mr Wild indicated that he told Mr Williams and Mr Nelson that he had not seen Mr Williams on 12 August 2010.36 Mr Wild said that he had raised the issue of the date in an off the record discussion with Mr Nelson. However, it would have been disruptive if he had said that it was not that date during the formal meeting. As well, the date on which it happened was irrelevant as far as he was concerned.37 Mr Wild said that he was being pinned for standing in the doorway of the train and that it did not make a difference whether which day it was.38

[17] On the second day of hearing, Mr Wild stated that, on 12 August 2010, he thought that he was doing the job that QR said that he was doing. Rather, the issue was with respect to 4 August 2010. He did not dispute that it was him in the video but he thought it may actually be 13 August 2010 rather than 4 August 2010. 39

[18] It was indicated by Mr Wild that he had probably been told that it was unacceptable that the doors were open on 4 August 2010 and 12 August 2010 and that they should be closed. 40 He confirmed that, during this meeting, he gave a commitment that, from that day, he would follow the process and that the doors would remain closed until the train stopped at the platform.41 He added “but old habits die hard”.42

[19] It was recalled that, when the Notice came out, he read “where practical” to mean that common sense would prevail and that he would open and close the door as necessary. This did not mean that the doors stayed open all the time - he opened it as he had always done for 30 years. 43 It was recalled that he had probably mentioned to Mr Nelson, prior to the actual recording starting, his interpretation of “where practical” but he was unable to be precise. He believed that he had probably raised it before the actual interview started.44

[20] Mr Wild agreed that he was also told not to be abusive to a supervisor and not to walk away when a supervisor speaks to him. Mr Wild confirmed that his response was that he did not have to speak to anybody that he didn't want to speak to. He said that if he did not want to speak to Mr Williams on that day, he would walk away and that that was what he did. However, it was Mr Wild’s evidence that he had walked away from Mr Williams because the conversation had finished. If he hadn't wanted to speak to him, he would not have gone up to Mr Williams, who was standing on the platform, in the first place. 45

[21] During the hearing, Mr Wild did not dispute that he was standing in the doorway with the door open arriving at the platform. 46 It was agreed that, at the meeting on 17 August 2010, he had said “I'm not saying I did do it, and I'm not saying I didn't do it”.47 The reason for the discrepancy between not disputing that the door was open during the hearing and what he said on 17 August 2010 was that he had not made up his mind at that stage. Mr Wild said that he had made up his mind after seeing the video footage.48

[22] In terms of the 03/2009 Traincrew Notice, dated 9 January 2009, it was Mr Wild’s evidence he probably complied with it on 9 January 2009. He then said that he was off duty from 9 January to 16 January 2009. With respect to Traincrew Notice 03/2009 being issued as a result of assaults of guards, Mr Wild stated that he himself had been assaulted in April 2008 when he was checking the passengers of a terminating train. He said that it was not an incident which arose out of whether or not the guard door was open or shut. 49

[23] Mr Wild was of the opinion that there was a conspiracy going on and that somebody in QR was building a case against him in a slow meticulous effort. He explained that it started with the crossing of the tracks at Petrie. Just before he was reprimanded for crossing the tracks at Petrie, he took a gun off a person at Bray Park station. He said that QR had swept it under the carpet because they did not want bad publicity like that. It then moved onto the assault against him by Mr Stafford. Further examples were given of him having raised what he considered to be important stuff on numerous occasions that had been swept under the carpet. 50 Mr Wild stated that he had yelled loudly and hard but he had to make his complaint people who were nailing him.51

Meeting on 17 September 2010

[24] It was confirmed by Mr Wild that there was a meeting on 17 September 2010 with Ms Pocock which discussed the incident on 12 August 2010. 52 Mr Wild said that the meeting was further intimidation and harassment of him by QR which had been going on over the past two years in regard to the Ray Stafford incident. He said that it was one of many things that had happened to him over the last two years and that QR was building a case against him. He stated that, for some reason, he had upset somebody and they were using this to get even.53 He said that QR was using things like him standing in the door of a train and calling it a safety breach.54 It was Mr Wild’s view that using the CCTV video footage was intimidation.55

[25] Irrespective of the actual dates, it was not disputed by Mr Wild that, on three occasions (4 August 2010, 12 August 2010, 26 September 2010), he was on the train with the door open. 56 During the meeting on 17 September 2010, Mr Wild indicated that he had had no problem identifying himself on the video. He said he had not indicated that he did not have a reason for why he was in the doorway.57

[26] It was stated that on average, 50% of the guards would be standing in the doorway as the train arrives or when the train leaves, because it is common practice and a safety issue to see what happens to the people on the platforms. 58 To his knowledge, not many of the 50% of guards have gone through the disciplinary process or been pulled up for this. He agreed that keeping the guard’s door open was probably a breach of the policy. It was stated that, if it was a critical safety issue, QR should check every train to see that employees were complying with the rules and procedures. Mr Wild agreed that Queensland Rail has the right to expect their employees to perform their duties as prescribed and directed by QR.59

[27] Mr Wild explained that the reason that the door was open on both 4 August 2010 and 12 August 2010 was because of his duty of care to the passengers - so he could view the passengers on the platform or assist passengers detraining and entraining. 60 He believed that he had a personal duty to make sure that people did not get hurt. This was said to be despite directive 03/2009. He stated that it was very difficult to justify his position because, on the one hand you have a personal duty of care and on the other, the Railway’s instruction. He confirmed that he was told that, at the meetings on 17 August 2010 and 17 September 2010 if he performed his work in accordance with his employer's instructions, he could never be in trouble because of his duty of care. Mr Wild said that he did not believe what he was told.61

26 September 2010

[28] That “old habits die hard” was the explanation for why the door was open again on 26 September 2010. He said that, for 30 years, he had been opening and closing the doors in a certain way and that it is very hard to change an old habit. He said that because old habits die hard, he did not always comply with directions. For 30 years, he had done what he believed was right in keeping the door open whenever he wanted to. He said that he had not disregarded the Notice on that day but that it had slipped his mind - through force of habit. 62 It was stated that it could take a lifetime to change a habit. Mr Wild acknowledged that QR did not believe in his commitments and that he understood why.63

Meeting on 12 October 2010

[29] Mr Wild agreed that, at this meeting, he was handed a letter to Show Cause why he should not be terminated for the incidents on 4 August 2010 and 12 August 2010, by 15 October 2010. The Show Cause did not include the incident on 26 September 2010 and a written response was sought to these allegations. A written response had been provided on his behalf which did not address the allegations of 26 September 2010. This was said to be because, when QR was policing this policy, they seemed to only find him and not the large number of other people who have the door open. 64 Mr Wild confirmed that, at this meeting, QR told him that they had lost trust and confidence in him and in his ability to comply with safety requirements into the future. He said that this was because of the door being open and he understood why they had said that to him.65

[30] With respect to Mr Wild’s written response to the Show Cause letter, he could not recall what the general disagreement was about or that he had had a disagreement with Mr Williams. He stated that he objected to being interrupted in his meal break with paperwork. The way he had chosen to show his objection was said to have been turning his back on Mr Williams and walking off. He said that he had told Mr Williams that he had seen it and had then walked away. It was Mr Wild's evidence that Mr Williams was showing him a form that he had already said and that he didn't want to talk to the man. 66 Mr Wild agreed that he had every opportunity to put forward anything that he wanted to in response to the Show Cause letter.67

Traincrew Notice number 03/2009

[31] It was confirmed by Mr Wild that he was of the understanding that the work practice of having the guard’s door open was accepted custom and practice. He believed that the Notice confirmed his understanding because it says “where practical” the door should remain closed. Mr Wild said that, on 4 August 2010, 12 August 2010 and 26 September 2010, it was impractical to have the door closed because he was checking the passengers on the platform (duty of care). It was his view that the Notice gives the guard a choice about whether the door should be open or closed - that was his understanding of what the Notice said. 68

[32] It was Mr Wild’s evidence that he genuinely believed that it was safer to have the door open. He said that, if the door is closed, he has no effective way to assess the risk to train passengers and train crew and nor is it possible to signal the train driver. 69 Mr Wild indicated that, despite going through the whole disciplinary process which culminated in his being terminated, he could still justify keeping the door open because he has a personal commitment to people.70 He stated that he was not saying that QR, you are wrong and I am right “but I honestly believe that it is possible to increase the safety aspect to – the safety commitment to people to be more aware of the surroundings by being able to see more by having the door open”.71 Mr Wild did not believe that he had done anything wrong.72

Final warnings

[33] Mr Wild confirmed that, when QR had to decide what disciplinary action to take, it had looked at his record. He agreed that a final warning was issued on 16 March 2010 following a disciplinary interview with him on 8 March 2010. The interview discussed unsafe work behaviour or unsafe work practices, namely:

● 12 November 2009, unsafe behaviour on a train arriving at Manly whereby he leant out the train (with the door open).

● 24 November 2009, unsafe behaviour in exiting train by jumping to the ground from the cab.

● 24 November 2009, unsafe behaviour in walking through the western stabling yard with his safety vest worn incorrectly (it was undone at the front). 73

[34] With respect to the issue of not wearing his vest appropriately, it was Mr Wild’s evidence that 10 to 20% of employees wear their vest undone and that it was custom and practice to do so. He confirmed that, of the two employees in a photograph taken at Petrie Station, the person with their vest open was the Station Master. 74

[35] It was accepted that the final warning was issued with respect to breaches of the Code and safety requirements of QR. 75 He understood that the letter stated that, if there were any further breaches, his employment may be terminated. Mr Wild said that he had fallen into a habit of doing what he believed was right over a period of 30 years and seemed to be unable to get out of that, at this stage. He accepted that there had been persistent breaches of the Notice 03/2009 - on 4 August 2010, 12 August 2010 and 26 September 2010. It was also accepted that he breached the commitment he gave to management at the meeting of 17 August 2010.76

[36] Mr Wild disagreed with the proposition that QR could not rely on him to follow any directives. He said that he can follow the correct procedures and that the reason that he had not in the past was probably because of force of habit. He recalled that he had said that it can take a lifetime to overcome past habits. 77 It was Mr Wild’s view that QR did not try hard enough to change his habits, namely, by placing a Tutor Guard with him.78

RESPONDENT

Mr Hamlet

[37] Mr Hamlet provided a written witness statement 79 and also gave oral evidence. Mr Hamlet's position is Traincrew Manager.80

[38] It was Mr Hamlet’s evidence that Mr Wild was in breach, on three occasions, of the Traincrew Notice 03/2009 which was attached to his affidavit. It was put to Mr Hamlet by Mr Watters that this particular Notice (dated 9 January 2009) was not the current Notice as at August/ September 2010. It was stated by Mr Hamlet that he was aware that there were two Notices with the same number. Mr Hamlet confirmed that the 9 January 2009 Notice states that the door shall be closed at all times until the train comes to a stop. 81

[39] With respect to the Traincrew Notice 03/2009, dated 16 January 2009, it was Mr Hamlet’s observation that it was issued by a different train crew manager to the 9 January 2009 Notice (an acting Traincrew Manager). He said that the second Notice postdates the first one but he did not see on the Notice where it says that it superseded the 9 January 2009 Notice. 82 It was his view that the intent of the Notices was the same and he disagreed that they were completely different. He said that the second Notice gave some clarity about when the train starts to move, about speed.83 Mr Hamlet explained that the second Notice was issued in response to a high number of opportunistic assaults of guards in late 2008.84 It was stated that the door should remain shut at all times - which was the first Notice.85 He indicated that he was not the author of these Traincrew Notices as he did not commence with QR until May 2009. Mr Hamlet confirmed that, although in his statement he said that there were two versions of the Notice, he had only included the first Notice.86

[40] Mr Hamlet confirmed that the second Traincrew Notice, dated 16 January 2009, stated that, where practical, the door should remain closed until the train comes to a complete stop at the platform. 87 He said that “where practical” means that, if the door can be shut it should be shut and remain shut. He did not believe that “where practical” means where a guard needs to conduct a certain observance of signals and/or passengers at station surrounds.88 With respect to “observance of signals and/or passengers at station surrounds”, his assumption was if the guard had to observe any signals on arrival at a station. However, he was not sure of any procedure that would require the guard to do this. Mr Hamlet was not quite sure what was being referred to as “station surrounds”. He assumed that it referred to passengers on the station platform but said that he was not the author of the Notice.89 There were also said to be procedures across all of the organisation to ensure passenger safety.90

[41] It was stated that he was not aware what the guard could do to improve the safety of passengers on a train arriving at the platform. Mr Hamlet did not know that Mr Wild had disarmed an offender at a railway station platform or that, because he had the guard door open, was able to observe a female passenger on the platform with a knife and was able to disarm her. Further, he was not aware that Mr Wild had hit the emergency button or brake to prevent the train moving after a small child had fallen through the crack between the train and the platform almost as the train was about to depart. Finally, Mr Hamlet indicated that he was not aware that Mr Wild, having given right of way to the driver, saw a small child run back to pat Thomas the Tank Engine goodbye and had fallen through the platform onto the tracks, was then able to stop the train from moving. 91 It was agreed by Mr Hamlet that, in each of these examples, there was some discretion exercised by the guard. He concurred that the first Notice, dated 9 January 2009, did not provide for any discretion for the guard.92

[42] Mr Hamlet stated that the safety of all staff was QR’s number one priority, including guards. 93 It was indicated that there were procedures for this including processes for dealing with people who do not follow the procedures and procedures for handling alleged assaults on a guard by a QR employee.94 Mr Hamlet confirmed that he was aware of an alleged assault against Mr Wild. He recalled that he received a call from the shift supervisor stating that a guard (Mr Wild) had alleged that he had been assaulted by a supervisor (Mr Stafford). He then went down to meet the train at Bowen Hills and, along the way, came across a workplace representative of Mr Wild and asked him to accompany him. He informed the workplace representative about the alleged incident. As Mr Wild left the train, he (Mr Hamlet) tried to introduce himself as the Traincrew Manager. Mr Wild refused to shake his hand. He had a quick conversation with the workplace representative before returning to the office. It was his understanding that Mr Wild had a discussion with his workplace representative and told him that he (Mr Wild) would be lodging a complaint with the police - which did happen. He believed that the outcome of that was that there was no evidence to support the alleged assault. There was no police nor QR action taken.95

[43] In terms of the risk to guards of being injured while in the guard’s cabin on a train, Mr Hamlet was unaware as to whether that varied depending on the time of day, location or day of the week. He stated that, keeping the guard’s door closed, had decreased assaults against guards by 50% since the January 2009 Notices were issued. 96 He believed that the level of compliance with Traincrew Notice 03/2009 was good.97 Surprise was expressed to the proposal that 8 out of 9 guards, at a particular point in time, were not complying with the Traincrew Notice.98

[44] It was confirmed by Mr Hamlet that he issued Traincrew Notice 88/2010 on 6 October 2010 and that the intent of this Notice was closest to the first of the 03/2009 Notices. He said that the fundamental difference between the Traincrew Notice of 9 January 2009 and that of 16 January 2009 was that the latter required the employee to sign and understand it. With respect to the Traincrew Notice of 88/2010, it was stated that it was a combination of both of the 03/2009 Notices. In terms of arrival at the platform, it was agreed that it contained the 9 January 2009 position - the guard door is to remain closed. With respect to departing the station, Mr Hamlet indicated that “walking pace”, gave some clarity on speed. 99 It was Mr Hamlet's evidence that the 03/2009 Notices were reissued in the form of Notice 88/2010 because people were not following the procedure. He said that Mr Wild's case would have been part of the consideration.100

[45] With respect to the information gathering process regarding the alleged breaches by Mr Wild, Mr Hamlet stated that there was no authorisation needed. He confirmed that he was the officer who recommended to Mr Wright that Mr Wild be dismissed and also that he signed the recommendation that Mr Wild Show Cause . This was because he was not confident, from Mr Wild’s response, that he would carry out his duties in a safe and compliant manner. 101 It was agreed that he had read the record of interview of 17 August 2010 prior to making his recommendation.102 Mr Hamlet concurred that it appeared that, from his behaviour, Mr Wild was having some difficulty in complying with the closed guard’s door policy. He indicated that he had been informed that Mr Wild gave a commitment to follow procedure on numerous occasions including on 17 August 2010 and 17 September 2010.103 It was stated also that he had been made aware that there had been other safety breaches by Mr Wild.104 His view was that, even if he had known that Mr Wild was the recipient of the Royal Humane Society award for bravery, a QR Commendation and a nominee for a customer service excellent award, it would not have affected his decision-making.105

[46] Mr Hamlet indicated that he had been advised that, through investigation and substantiation, it appeared that Mr Wild was not embracing QR’s safety philosophy in terms of a Zero Harm organisation. This advice had come through the report from Ms Pocock and verbal and written advice from Mr Williams together with Mr Wild’s TPMS history. 106 It was stated that he had read Mr Wild’s history before making the decision that he should Show Cause and then to terminate him.107 Mr Hamlet explained that what was considered in making the recommendation was the information that was considered and similar incidents from Mr Wild’s TPMS history.108 It was stated that the incidents on 4 August and 12 August 2010 (including his interaction with Mr Williams) and Mr Wild’s past history were taken into account in the recommendation. He said that the incident on 26 September 2010 was not taken into account.109 With respect to the position of the guard’s door on departure of the train on 4 August 2010, 12 August 2010 and 26 September 2010, it was stated that it was open. Mr Hamlet said that the door needs to be shut after the train departs before it reaches walking speed. However, he was not surprised by seeing the cab door open when the train departs because that's how it should be.110

[47] It was explained that Mr Wild’s past history included the incident of crossing the main track around March 2009, his vest not being done up and his detraining inappropriately (2010). 111 With respect to the issue of wearing vests, it was confirmed by Mr Hamlet that the wearing of the vest by the guard whilst in the cabin of the train is not required. However, it was stated that if a vest is worn (even if not required), it must be worn correctly (closed).112 Mr Hamlet indicated that, during the three incidents when Mr Wild had the guard’s door open, prior to the complete stop of the train at the platform, this was contrary to Traincrew Notice 03/2009.

29 July 2010 incident

[48] In terms of an incident that occurred on 29 July 2010 when Mr Wild did not make an on-board announcement and did not acknowledge the General Manager, it was Mr Hamlet’s evidence that he was with the General Manager at the time. He recalled that he and the General Manager walked past Mr Wild and the General Manager acknowledged Mr Wild and said “good day, Michael”. It was stated that Mr Wild had ignored the General Manager, just as he had done to him (Mr Hamlet) when he met him at Bowen Hillsstation. With respect to not making any on-board announcements, Mr Hamlet said that there was no enquiry as to why no announcements were made but that it was proven that Mr Wild did not make any announcements. He was unaware that the microphone on that service was broken. It was said that that incident did not influence his decision to terminate Mr Wild. 113

12 August 2010 incident

[49] With regard to the incident on 12 August 2010, it was Mr Hamlet's understanding that the complaint was that Mr Wild failed to engage in conversation with his supervisor and made some inappropriate comments. Mr Hamlet stated that he could not recall the specifics of this incident despite having made a recommendation against Mr Wild which included this conduct. It was indicated that he was not part of the information gathering or the disciplinary interview with Mr Wild. 114 Mr Hamlet confirmed that he had been provided with a detailed brief by Ms Pocock but had not seen the CCTV footage.115 It was agreed that the CCTV footage appeared to show that there was an approach by Mr Williams and Mr Wild walked to him. Mr Williams handed Mr Wild something, he took it off him and appeared to look at it. Mr Wild handed it back to Mr Williams and walks off to the meal room.116 It was Mr Hamlet’s view that “eff off” was not uncommon terminology in the workplace. He said that he had never been personally offended by it.117

Mr Williams

[50] Mr Williams provided a written witness statement 118 and also gave oral evidence.

[51] Mr Williams is a Driver in Charge which is a first line supervisory position. 119 His responsibilities, with respect to all train crew, included observing or detecting breaches or safety concerns and then dealing with such matters.120 He stated that, although he had not performed the duties of the guard himself, he had worked with guards for many (25) years.121

[52] It was Mr Williams’ evidence that he and Mr Wild were standing 1 and a half metres to 2 metres maximum from the door of the meal room. 122

[53] With respect to the incident on 4 August 2010, Mr Williams stated that he had personally observed Mr Wild with the guard’s door as the train approached the Bowen Hills station. He explained that he was on his way home and about to get onto the train. It was agreed that he had thought that Mr Wild was doing the wrong thing but that he would deal with that later. He said that, however, he had made a call from the train indicating as to what he had observed and that it needed to be dealt with later. 123 On 12 August 2010, it was explained by Mr Williams that he had observed the same conduct by Mr Wild (the door was open) as the train approached the platform.124 It was Mr Williams’ view that, based on the limited time that he was on the Bowen Hills platform, it was rare for the guard door to be open as a train approached. He explained that he did not work there, and that, if there was an incident, he would be on the Bowen hills platform but not for an extended period of time.125

[54] Mr Williams explained that, prior to 4 August 2010 he had not had any direct dealings with Mr Wild including in his role as supervisor. He said that he had seen him in the workplace and had greeted him but Mr Wild had ignored him and other people as well. Mr Williams recounted that he knew Mr Wild previously as they both had been there a long time. This was said to have been when Mr Williams was a driver. 126

[55] With respect to Traincrew Notice 03/2009, Mr Williamson agreed that it required that the door needed to be closed at all times until the train comes to a complete stop at the railway station platform. After right of way has been given, the door needs to be closed at or before the train departs from the station - once the train reaches walking speed. 127 It was his view that, if Mr Wild was leaving the station with the door open, that would constitute a breach of the Traincrew Notice.128

[56] In terms of which Notice Mr Williams showed to Mr Wild on 12 August 2010, it was agreed that the Notice was the first Traincrew Notice 03/2009 dated 9 January 2009. He did not know whether this Notice had been superseded but stated that an amended Notice was issued a week later, on 16 January 2009. 129 Mr Williams confirmed that the details about the walking speed of the train were not included in the Notice that he showed Mr Wild on 12 August 2010.130

[57] Following watching the CCTV footage for 4 August 2010, it was Mr Williams’ evidence that the quality of the footage was not very good but that it appeared as if the guard door remained open with the guard watching the platform as the train was accelerating away from the platform at walking speed. If this is correct, Mr Williams agreed that it would be a breach of the policy. 131 With respect to the incident on 12 August 2010, Mr Williams agreed that the guard door was clearly open with the guard standing at the end of the guard door with part of his limb protruding as the train got up to walking speed and departed the station. He also concurred that this was a breach of the policy.132

[58] On 26 September 2010, it was confirmed that he and Mr Higgins observed a train arrive with the guard cabin door open with Mr Wild as the guard. Mr Williams indicated that, to his knowledge, Mr Wild had not been interviewed about that incident. After viewing the CCTV footage, Mr Williams confirmed his surprise that, as the train left the railway station, the new guard had also left the door open on departure at walking speed. 133 He indicated that he would be surprised if, two months ago, 9 out of 10 trains on a particular suburban line, over a period of an hour showed guards with the door open arriving and leaving at the station platform. This was said to be that, as far as he was aware, there was strict compliance with Traincrew Notice 03/2009 because safety is the number one priority for QR. It was Mr Williams’ belief that guards know that and are committed to it.134

[59] In terms of Traincrew Notice 88/2010, dated 6 October 2010, it was Mr Williams’ view that it was a clarification. He agreed that the title and “Safety is your number one priority” of 88/2010 Notice were the same as the amended 03/2009 (16 January 2009) and that the latter did not appear on the original Notice, 03/2009, dated 9 January 2009. 135 Mr Williams also agreed that 88/2010 and the two 03/2009 Notices all contained “In response to a number of recent incidents”.136 He concurred that, in January 2009 and again, in October 2010, guards were told in a written Notice that they had to close the door of the guard cabin for their own safety because of assaults on guards. It was commented that it was possible that there could be further recent incidents of assaults on guards despite strict compliance with Traincrew Notice 03/2009.137

[60] Mr Williams confirmed that, during the interview with Mr Wild on 17 August 2010, Mr Nelson had said that, if Mr Wild shuts the door of the guard cabin having given right of way, he meets QR’s requirements. If anything occurred in respect of the safety of passengers, that was not his responsibility. As long as he followed the procedures set down in the safety critical Notice, if it did go to court, he could say that he was following the instructions of his manager. It was agreed that during the interview, Mr Wild had not asked about whether he could be sued. 138 Mr Williams confirmed that Mr Wild had said, in a defiant manner, that it was due to his concern for passengers, that he left the door open - having a view of the platform and, in effect, being worried about someone falling on or off or into the train.139 A number of different scenarios were put to Mr Williams. He agreed that the safety of others was not assured if the guard cabin door was closed in those circumstances.140

[61] With respect to QR’s “The Observance of Signals” manual, Mr Williams agreed that there is a requirement that guards and passenger service must maintain vigilance until the train has cleared the platform. He stated that it did not refer to having the cab door open and that the cabs are fitted with mirrors. It was his view that, as the train is leaving, the guard can look in the mirror and see the rear of the train. 141

[62] In terms of the conversation between himself and Mr Wild on 12 August 2010, it was confirmed that, when Mr Wild alighted from the train, Mr Williams had approached him with a copy of Traincrew Notice 03/2009. Words to the effect of “Can I see you for a minute?” are said by Mr Williams. Mr Wild came over to him and he handed him the Traincrew Notice and said words to the effect of - I want to show you this about the guard door being closed at all times and was he aware of it? He handed Mr Wild the notes and Mr Wild said “I've seen it” and he flicked it back to him. It was stated that Mr Wild had turned and walked away towards the meal room. Mr Wild then turned as he was in the door and said “fuck off” whilst looking at him. 142

[63] It was agreed by Mr Williams that the CCTV footage does not show Mr Wild looking back at him. It was Mr Williams’ view that the footage is incorrect and it does not cover it because of the angle of the CCTV camera. 143 However, Mr Williams said “But he looks at me. I know what I saw”.144 It was Mr Williams’ evidence that, as Mr Wild entered the doorway, he turned around and looked at him and said “Eff off”, and then walked into the meal room.145 He said to Mr Watters that he saw Mr Wild looking at him - “Just as I'm looking at you”.146

[64] Mr Williams recalled that, after Mr Wild went inside, he did not want to follow him into the meal room because it was a meal room for the other crew. He said that he turned and walked back towards his office and left the platform. It was indicated that he did not see that the departing train’s guard door was open. 147

[65] It was stated by Mr Williams that he was not aware of any previous union activity or involvement by Mr Wild. 148 He was aware that he was recalcitrant in that he was difficult to get along with and a difficult person to manage. It was said that Mr Wild did not want to engage in conversation with people particularly supervisors. He gave examples of this from his own personal experience and that of other supervisors and indicated that Mr Wild totally disregarded any sort of supervisor.149

[66] In terms of the incident at the Brisbane domestic airport station, Mr Williams explained that Mr Hamlet had told him that Mr Wild had refused to acknowledge himself and the general manager. He said that there was no protocol regarding acknowledging the general manager but that it was common decency. It was stated that Mr Wild did not possibly know who they were except that he believed that he would have known Mr Hamlet because he had been with QR a long time. 150

[67] With respect to Mr Wild’s safety breach at Petrie when he walked across the track without wearing the correct safety equipment, it was stated by Mr Williams that he was not directly involved but was aware of it as there were others having the same problem at the same time. 151

[68] In terms of the alleged assault by Mr Stafford, Mr Williams indicated that he did not know the exact details but believed the police were involved and that they deemed it to be unfounded. He said that it did not proceed any further. It was stated that he was not aware of any action being taken by QR. 152

[69] Mr Williams confirmed that, immediately after the incident with Mr Wild on 12 August 2010, he sent an e-mail to Mr Shields and Mr Hamlet. 153 He confirmed that the contemporaneous e-mail did not say that Mr Wild had flicked the Notice back to him. He said that it was a little flick and that it was semantics.154 With respect to the discrepancy between his evidence in court and his contemporaneous e-mail regarding whether Mr Williams had asked Mr Wild, after he had handed back the Notice and was walking towards the meal room, as to whether he was aware of the Notice, Mr Williams said that he had not considered that the conversation had finished. It was confirmed that he had not said to Mr Wild words to the effect of - I haven't finished or come back here, I am your supervisor, I want to discuss an important safety matter.155 Mr Williams indicated that he believed he may have said “I haven't finished” but he did not put this in the e-mail as, at the time, he could not remember. He said that that was why Mr Wild had turned around. It was confirmed that he had not said anything about this aspect to Mr Wild during the interview.156

[70] It was agreed that he took personal offence, as a supervisor, at being told to “eff off” by Mr Wild and having those words directed at him. 157

[71] In terms of the distances on the platform, on the basis of his little mud map, 158 Mr Williams said that the distance from where Mr Wild alighted from the guard’s cabin door to the meal room door is about 10.5 metres. It was agreed that Mr Wild did not walk directly or in a straight line from the train to the meal room door with the distance travelled by him approximately 11 or 12 metres.159 He said that the distance between where he and Mr Wild had their conversation and the meal room door was less than 3.5 metres. He stated that they were closer to the meal room door than that, even though the CCTV footage suggested it was slightly closer to the toilet door. Mr Williams indicated and that it was approximately 2 metres from the meal room door and about three or four steps.160

[72] Mr Williams agreed that, at both disciplinary interviews, Mr Wild, on being asked to give a commitment about his future conduct, said that he would try hard but that old habits die hard. He confirmed that Mr Wild had gone on to say that he would try very hard. 161 Mr Williams understood from Mr Wild’s response that he had made a commitment that he would try to abide by the instructions as per the Traincrew Notice.162 He agreed that, after 34 years as a guard, it was not an easy transition from what was custom and practice to closing the guard’s cabin door. It was explained that drivers and guards are run through by tutor guards or tutor drivers, approximately every 18 months, to ensure that they are fully conversant with all procedures policies. It was stated that on 27 January 2010, Mr Wild was fully aware of the process and procedure as he had been observed by a tutor driver having done that.163 He said that, from his perspective, Mr Wild should have been fully aware of the amended Traincrew Notice 03/2009. As Mr Wild had been previously put on with a tutor guard for training for two days, there was no consideration given to doing that again.164

[73] It was stated by Mr Williams that the Traincrew Notice that he had shown Mr Wild on 12 August 2012 and that he had questioned and interviewed Mr Wild about was the Traincrew Notice 03/2009 dated 9 January 2009. 165 It was confirmed that this Notice clearly requires that, when arriving at a station, the guard’s door is to remain closed until the train comes to a complete stop. Mr Williams confirmed that the Notice said that, when departing station, after getting right of way, the guard is to close the door as soon as the train starts to move. He agreed that there were no ifs, buts or maybe’s and that it was a prescriptive instruction to the guard.166

[74] Mr Williams confirmed that Traincrew Notice 03/2009, dated 9 January 2009, had been amended by Traincrew Notice 03/2009 dated 16 January 2009. He agreed that the first difference between the first closed 3/2009 Notice and the amended Notice (16 January 2009) was that the amended Notice said that “where practical” the guard’s door should remain closed when arriving at a station. 167 The second difference was confirmed to be that the second Notice says that the guard's door “should” remain closed rather than “is to” remain closed.168 It was Mr Williams’ view that the two Notices were not very different and that the examples given in the second Notice were additions/enhancements.169 He did not believe that the second Notice’s “where practical” provided for a discretion for the guard. He understood that to mean that, where practical, if a door can be closed it should be closed. With respect to departing from a station platform, Mr Williams indicated that the second Notice clarifies more closely the speed of the train.170

[75] It was indicated by Mr Williams that he was aware of the enhanced Traincrew Notice (16 January 2009) initially, when it was first issued and secondly after he saw Mr Wild on 4 August 2010. He explained that all the Traincrew Notices are stored in a repository and that the Notice, dated 9 January 2010, was the Notice that he got from the repository and which he gave to Mr Wild. He said that he became aware of the amended Notice dated 16 January 29 sometime after he had spoken to Mr Wild on 12 August 2009. He did not think “Oops, I put the wrong Traincrew Notice to Mr Wild” and had subsequently re-interviewed him about it because that was the one that he had withdrawn at the time from the repository. 171 Mr Williams admitted that the amended Notice 03/2009 had slipped under his guard prior to 12 August 2010 but that it was not his intent.172

[76] It was indicated that the second Notice does state that there might be some circumstances in which the door could remain open but it did not mention anything about a guard’s discretion. 173 Mr Williams did not believe that, on 4 August 2010, 12 August 2010 and 26 September 2010, Mr Wild was acting in compliance with Traincrew Notice 03/2009 dated 16 January 2009. This was said to be because Mr Wild still had the door open and it was nothing to do with his discretion. He indicated that there was nothing wrong with the door as far as he was aware and stated that it could have been closed so it should have been closed.174

[77] Mr Williams explained that he was not aware of Mr Wild’s good conduct, including being a recipient of the Royal Humane Society award for bravery, a Certificate of Commendation and nomination for a QR customer service excellence award. He indicated that in one way, it painted Mr Wild in a different light. 175

[78] With respect to language in the workplace, Mr Williams indicated that, in the past, he had heard someone tell somebody else to “get fucked”. However, he said that more recently, that sort of language had diminished with the code of conduct and modern HR practices. 176

[79] It was Mr Williams’ evidence that another driver at Petrie had complained about Mr Wild’s conduct and had alleged that he had been assaulted by him - hit with a newspaper on the back of the head. He recalled that he was advised of this after August 2010 and that it had occurred quite a while ago. Because it had been so long ago and the person concerned did not wish to follow it up, there was nothing he could do about it. 177

[80] Mr Williams indicated that he had no ill harm against Mr Wild but said that, if he was returned to the workplace, morale in the depot would suffer. However, it was stated that that would not really affect him. 178

Mr Higgins

[81] Mr Higgins prepared a written statement 179 and gave oral evidence.

[82] Mr Higgins is a Train Management Improvement Officer. 180

[83] It was Mr Higgins’ evidence that he has known Mr Wild for many years as both are long-time employees. 181 He said that he and Mr Wild did not know each other on a personal basis.182

[84] With respect to what occurred on 26 September 2010, Mr Higgins could not recall exactly the conversation between Mr Williams and himself. He recounted that he was approached by Mr Williams and asked if he could be a witness to a train and Mr Wild's name was mentioned. He thought that Mr Williams had mentioned Mr Wild’s past conduct in leaving the door open because he would have given him a reason for why he wanted him to be there as a witness. 183 He did not recall Mr Williams telling him that he had recently and previously interviewed Mr Wild about leaving the guard door open on approach/departure from a station nor that Mr Wild had told him to “fuck off”. The reason for this was that it was a different incident which had nothing to do with him.184

[85] It was recalled that he and Mr Williams took up an observation position on the overhead bridge near the Bowen Hills station. He said that it was around 11.50am/12 noon (before lunch). 185 Mr Higgins stated that, as the train came into the platform prior to stopping, he noticed that the guard’s door was open and Mr Wild was standing in the open guard doorway with his bag over his shoulder and he remained there until the train stopped. He then detrained.186 He confirmed that there then appeared to be a change of shift/guard. It was stated that he could not say that the new guard left the cabin door open and that it remained open while the train departed the station because he did not see the whole train depart the station. Mr Higgins said that the Notice requires that, when the train departs, the door stays open for a certain time until the guard determines walking pace and then they close the door.187

[86] It was Mr Higgins’ view that it was a safety breach as there are Notices in regard to the guard’s door remaining closed until the train stops, before it arrives at a station. He explained that this was brought about because of safety issues for the guards. 188 Mr Higgins also believed that Mr Wild was in breach of the Traincrew Notice 03/2009 dated 16 January 2009 because he had the door open when it should have been closed until the train came to a stop.189

[87] Mr Higgins agreed that Traincrew Notice 03/2009, dated 9 January 2009, requires that, on departing the station, after giving right of way, the guard is to close the door as soon as the train starts to move. He concurred that that did not happen on 26 September 210. He said that the Notice dated 9 January 2009 did not exist on 26 September 2010 but rather it was the 16 January 2009 Notice. The latter Notice provided that, once the train has reached walking speed, the guard is to close the cab door. Mr Higgins agreed that, in giving the speed, it was different from the first Notice of 9 January 2009. However, he said that the first part was slightly different but that the intent was still there. 190

[88] Confirmation was given by Mr Higgins that the Traincrew Notice 03/2009, that was attached to his affidavit, was dated 9 January 2009. He said that he had printed it off the train Notice system database. 191 It was stated that he was familiar with this Traincrew Notice. He agreed that the Notice says that when arriving at the station, the guard’s door is to remain closed until the train comes to a complete stop. He agreed that this was not what happened on 26 September 2010 and that Mr Wild was operating in breach of this Notice.192

[89] Mr Higgins gave evidence that he did not believe that leaving the guard door open was commonplace. He indicated that he spent a fair amount of time around station platforms. It was his view that nearly every train that he saw complied with the procedure of closing the door. He believed that there were high levels of compliance. 193 He agreed that Traincrew Notice 88/2010 was the result of a review and an updating. He thought that such a review would have occurred between 9 January 2009 and 16 January 2009 as there was a change in the wording.194

[90] It was indicated by Mr Higgins that he became familiar with the Traincrew Notice 03/2009, dated 16 January 2009, when it came out. He agreed that, as at 26 September 2010, it was the current operating Notice which superseded the previous Notice of 03/2009 dated 9 January 2009. 195 He agreed with a couple of differences between the two Notices highlighted by Mr Watters and confirmed that he perceived that the new process set out in the 9 January 2009 Notice was enhanced on 16 January 2009. It was confirmed that these Notices were developed as a safety strategy for guards as a result of guards being assaulted.196

[91] With respect to the requirements for arriving at a station, Mr Higgins believed that the second Notice of 16 January 2010 gave more of an explanation but indicated that, to him, it was very much the same as the previous Notice of 9 January 2009. He confirmed that the two Notices were slightly different but said that the intent was still there. 197 He did not agree that the second Notice provided for a different operating environment from the first Notice which was a prescriptive direction.198

[92] Mr Higgins indicated that he was not familiar with Mr Wild's employment history or work performance at QR. He stated that if he had needed to have looked at the system he would have done that but he said that he had not had a reason to have a look. 199 He recalled that there was talk of an incident at Petrie but stated that he did not listen to talk. Further he indicated that people talking in the workplace was not somebody's history. It was said that he did not hear anything about an incident at the domestic airport train station.200 Mr Higgins stated that he was not aware that Mr Wild is the recipient of a Royal Humane Society award for bravery nor a QR Commendation.201

Ms Pocock

[93] Ms Pocock provided a written statement 202 and also gave oral evidence.

[94] Ms Pocock is a Senior Resources Adviser of Operations Human Resources. 203

[95] With respect to the amendment to her affidavit, Ms Pocock explained that the “others” she was referring to were other staff members, for example, train drivers. She said that Mr Wild was not putting the travelling public at risk. 204

[96] It was confirmed by Ms Pocock that, in the preparation of her reports, she had gathered Mr Wild’s history. She said that she was not aware of any positives about his employment history. Evidence was given that she was unaware of his bravery award, QR’s Commendation, the All Aboard article or the QR letter complimenting Mr Wild in relation to service excellence. 205 Ms Pocock indicated that these were not brought to the decision maker’s attention as they were not in Mr Wild’s personnel file. Also, she said that there was some prior history including disciplines that was not included in her report. It was stated that the incident at the domestic air terminal train station was not provided to the decision maker. Ms Pocock explained that it was provided to workplace relations but not to any of management who were involved in the matter. Only relevant actions for their consideration were provided to the decision maker.206 These did not include the TPMS report.207

[97] Ms Pocock explained that, even though Traincrew send her the whole TPMS report for an employee, she would only review the relevant or most recent matters. She said that she tended to get most of the information from an employee’s personnel file. 208 In addition, it was stated that she would also ask management if there was any other relevant history. She confirmed that, during the September 2011 meeting with Mr Wild, he had raised the issue of having been assaulted by Mr Stafford. Ms Pocock said that she did not know what he had been talking about. It was confirmed that she had not read the TPMS report and had not been made aware that this issue was in there.209

[98] She also agreed that she had not been made aware of Mr Wild’s other good history. 210 She said that, if she had had this knowledge, she did not believe that it would have made any difference to her ultimate opinion.211 It was confirmed that Mr Hamlet had no knowledge of Mr Wild’s good history either and that Mr Hamlet had recommended the termination of Mr Wild’s employment to Mr Wright who was the decision maker. Ms Pocock indicated that Mr Wright was not provided with this good history.212 She explained that the relevant employment history that was taken into account were the two final warnings.213

[99] It was confirmed by Ms Pocock that there were two Traincrew Notices 03/2009. She stated that she became aware of that just before the paperwork for the Show Cause letter and brief was finalised- on 30 September 2010. It was said that this was after Mr Wild’s second disciplinary interview but prior to his being issued with the Show Cause. She indicated that Mr Williams was not aware of this either. 214 It was confirmed that the Show Cause proceeded on the basis of the second Notice.215 Ms Pocock agreed that Mr Wild was never interviewed at any stage about the second Traincrew Notice dated 16 January 2009 and that that Notice was never put to him.216 It was said that she had been advised that the Notice that Mr Williams showed Mr Wild on 12 August 2010 was the first Traincrew Notice dated 9 January 2009.217 She agreed that Mr Williams and others proceeded on the basis that Mr Wild's conduct was in breach of the first Notice and that the Show Cause letter concerned Mr Wild’s conduct with respect to the second Notice. Ms Pocock indicated that, as far as she was aware, the second Traincrew Notice 03/2009, dated 16 January 2009, was the current and correct Notice at that time.218

[100] It was Ms Pocock’s view that the second Notice dated 16 January 2009 was different to the first Notice dated 9 January 2009. She agreed that the first Notice was quite prescriptive in that there were no ifs, buts or maybe’s that the door shall remain closed. It was confirmed that the second Notice, with respect to arrival at the platform, says “where practicable” and that the first Notice did not contain any reference to “observance of signals and/or passengers at station surrounds”. She indicated that the second Notice was not as strict as the first in that it allows for circumstances where the guard needs to open the door for a particular reason ie. where it is not practical to keep it closed. 219

[101] Ms Pocock agreed that Mr Wild was interviewed on two occasions in relation to the Traincrew Notice 03/2009 dated 9 January 2009. She was not present at the first interview on 17 August 2010. 220 She confirmed from the summary of interview that, at the first interview, there was no mention of the second Traincrew Notice 03/2009.221 In terms of the second interview, it was Ms Pocock's recollection that Mr Wild did not agree with the first Traincrew Notice in that he did not agree that he should keep the door closed.222

[102] With respect to the determination in her report that Mr Wild instilled little faith in an intention to abide by and comply with the safety requirements, Ms Pocock explained that this was on the basis that Mr Wild was not remorseful. It was stated that he continued to debate and argue the instructions and to say that old habits die hard. She confirmed that, at the interview stage, Mr Wild was being questioned about a Traincrew Notice that specified that the train had to come to a complete stop. 223

[103] It was stated by Ms Pocock that Mr Williams had reviewed her findings and that the briefings were sent to industrial relations for review, then to the general manager of HR who briefed the Chief HR Officer. The briefings were then sent to Mr Hamlet, Mr Shields and subsequently Mr Wright. She confirmed that no changes had been made to any of the documentation as a result of this process. 224

[104] In terms of the Show Cause response from Mr Wild, it was Ms Pocock's view that Mr Wild did not provide a specific reason as to why he had to open the door on those occasions. It was recalled that he had provided a general disagreement with having to close the door and that he felt that the door should be open in case people fell in or out of the train. It was stated that he did not indicate that, on those dates, there was a particular issue he was addressing or that it was not practicable for the door to be closed. Ms Pocock elaborated that Mr Wild had not given any evidence to suggest that he was observing a particular signal or a passenger issue. 225

[105] Ms Pocock explained that she had only seen the CCTV footage of 4 August 2010 and 12 August 2010 once and then with Mr Wild and Mr Ring during the meeting on 17 September 2010. She said that they must have watched all of the camera views with Mr Wild. 226

[106] Having been shown the CCTV footage, it was Ms Pocock's view that it did not show that it may have been practical to have the guard’s door open "to view signals and/or passengers in the station surrounds at the time". She said that she did not agree that, just because a passenger is on the platform, that that means that it is not practicable to have the door closed. It was her understanding that, due to assaults on guards and a number of safety issues, QR wanted the doors to be closed until the train comes to a stop. Ms Pocock explained that she assumed from the second Notice that there might be instances where the door might need to be open e.g. a matter at the station, a particular issue with a signal or a reason that the door needs to be open. However, the Notice says that in most cases, the door is closed unless there is a reason it needs to be open. It was her view that, passengers being on a platform was not a reason for the door to be open. Otherwise, that would be the standard practice. 227 Ms Pocock confirmed that the footage showed that the guard cab door remained open on the departure of the three trains on the three occasions that Mr Wild came into the station with the guard cab door open.228

[107] It was confirmed by Ms Pocock that she had not seen the CCTV footage of 26 September 2010 and stated that that incident was not considered. 229 She agreed that the Show Cause letter, dated 8 October 2010, stated that it was specifically regarding the allegations of 4 and 12 August 2010 and that no findings were made in respect of 26 September 2010. However, Mr Wild was provided with an opportunity to respond to the allegations regarding 26 September 2010.230

CLOSING SUBMISSIONS

APPLICANT

[108] On behalf of the applicant, Mr Watters submitted that, in all of the facts and circumstances of this case, the termination of Mr Wild’s employment was harsh, unjust and unreasonable. 231

Valid reason

[109] It was argued that:

• A valid reason must be “sound, defensible or well founded” rather than “capricious, fanciful, spiteful or prejudiced”.



• An objective analysis of all of the facts of the case, including the entire factual matrix, must be undertaken by Fair Work Australia.



• It has to be shown that the conduct by the employee is sufficiently serious by the standards of fairness and justice so that the employer should not longer be bound by the contract of employment.



• It is therefore a high threshold that the employer must reach to lawfully summarily dismiss an employee for misconduct. An employer is only entitled to summarily dismiss in exceptional circumstances.



• Where the reason for the dismissal is serious misconduct, Fair Work Australia must be satisfied that the alleged conduct took place. A reasonably held belief as to the conduct does not amount to a valid reason for dismissal.



• Where the dismissal arises from serious misconduct, the evidential onus of proof shifts from the applicant to the respondent.



• The standard of proof is “on the balance of probabilities” but the evidence relied upon by the respondent for proving serious misconduct must be strong. 232

Whether the person was notified of that reason/opportunity to respond

[110] The applicant contended that notification of the reason for dismissal must be made prior to the employee being dismissed. It was said that it is necessary for the employer to give the employee an opportunity to respond before it makes the decision to terminate the employment. 233 In giving the opportunity to respond, the employer cannot just go through the motions.234

The evidence of the witnesses

Applicant

[111] Mr Watters submitted that:

• Mr Wild gave evidence in an honest and forthright manner and did not falter or retreat from his case. 235



• He was a difficult witness which appeared to be in keeping with his character and personality. 236 He is no saint and demonstrates an anti-management attitude.237



• It was Mr Wild’s evidence that he was dismissed, not because of serious safety breaches, but due to his recalcitrant behaviour and attitude towards QR management, particularly after he filed a formal complaint against Mr Stafford, a senior engine driver. 238



• There was evidence of Mr Wild’s recalcitrance towards QR managers which supports his contention that he was being targeted because he was recalcitrant. However, Mr Wild was not dismissed for being difficult but for “serious safety breaches”. Managers are expected to manage both cooperative and difficult staff. 239



• Mr Wild was perfectly entitled to exercise his discretion to have the guard cabin door closed “where practicable”. 240

[112] With respect to the cross examination of Mr Wild as to why he did not raise the defence of the guard’s “discretion” to have the guard’s cabin door open upon arrival/departure from platforms, it was stated that, during the investigation, interviews and information gathering process, Mr Wild was only ever shown or questioned about the first Traincrew Notice 03/2009 dated 9 January 2009. This was said to demonstrate bad faith on the part of QR as it shows that not even Mr Williams, the applicant’s supervisor, knew what the correct requirement was. It was stated that Mr Williams did not show Mr Wild the amended Traincrew Notice 03/2009, dated 16 January 2009, on 12 August 2010. 241

[113] Further, it was contended that, when Ms Pocock realised the mistake, there was no effort to re-interview the applicant, no opportunity was provided to correct the record and there was no recognition of the mistake that had been made. In effect, Mr Wild was not interviewed nor investigated for an alleged breach of the current Traincrew Notice 03/2009. Rather, he was interviewed and investigated for an alleged breach of a superseded Traincrew Notice dated 9 January 2009 which requires strict compliance and is a very different Notice to the subsequent 03/2009 Notice. 242 The wording of the revised Traincrew Notice 03/2009 was simply provided in the Show Cause letter.243

[114] Mr Wild’s evidence that “old habits die hard” was highlighted and was said to be reflective of a long serving employee crying out for help and assistance eg. through the Tutor Guard program. 244

Mr Hamlet

[115] Mr Watters contended that, while Mr Hamlet's evidence was considered and careful, it was almost irreconcilable with the facts of the case, particularly the documentary evidence. 245 Mr Hamlet's evidence, during examination in chief and cross examination, that he thought that the two Traincrew Notices 03/2009 meant basically the same thing was said to be unbelievable.246

[116] It was stated that Mr Hamlet's assertion that there had been good compliance with Traincrew Notice 03/2009 was even more incredible given his evidence that he had to re-issue this instruction in the form of a new Traincrew Notice 88/2010. 247 Further, QR’s CCTV footage clearly demonstrated 100% failure to comply with the “closed guard door” policy - something which Mr Hamlet refused to accept.248

[117] Further, it was submitted that Mr Hamlet had been surprised at, and had readily stated that, nobody had informed him of Mr Wild’s previous good conduct record. However, he had then indicated that such matters would not have affected his recommendation to the decision maker. 249

[118] Finally, Mr Watters argued that, critical to this case is Mr Hamlet's evidence that he did not take the events of 26 September 2010 into account when making his recommendations to the decision maker. This was said to be because, if this was so, why was the decision maker made aware of the 26 September 2010 alleged breach and why, if it was disregarded, was the applicant called upon to respond to it? It was stated that Mr Hamlet's evidence was that the safety breaches of 4 and 12 August 2010, together with the insubordination to Mr Williams and the past safety breaches, were the factors that were taken into account by him. It was asserted by the applicant that, as QR did not call the decision maker, Mr Wright, we do not know what factors he took into account in making his decision. 250

Mr Williams

[119] It was argued by the applicant that Mr Williams had struggled to understand the basic differences between the two Traincrew Notices. 251 Further, it was stated that Mr Williams had faltered when challenged about the alleged obscene language used by Mr Wild. Mr Watters submitted that Mr Williams’ claims regarding distances, proximity and the sequence of events was at odds with the CCTV footage. This was said to be particularly so with regard to Mr Williams’ version which says that Mr Wild stopped at the meal room door, turned, looked at him and used obscene language towards him.252

[120] Mr Watters contended that none of this was reflected in the CCTV vision which was said to support the applicant's version that he walked off to the meal room and exclaimed out loud the obscene language, not directed at, or looking towards, Mr Williams. 253 Further, there was said to have been inconsistency between Mr Williams’ contention that Mr Wild “flicked” the Notice back at him and, under cross-examination, acceptance that it was handed back to him.254

[121] Mr Williams’ evidence was said to demonstrate bad faith and a clear dislike of Mr Wild. It was, however, acknowledged that Mr Williams had said that, if Mr Wild was returned to work, it would make no difference to him. 255

Mr Higgins

[122] On behalf of the applicant, it was unreservedly submitted that Mr Higgins was the most unimpressive witness throughout the hearing. He stated that he had not discussed his evidence with the previous witness, Mr Williams, but was said to have gone on to give the same, and in places identical, evidence including the identical words as Mr Williams. 256 Further, Mr Higgins would not accept that the CCTV footage showed other than “good compliance” with Traincrew Notice 03/2009.257

[123] In addition, it was contended that Mr Higgins suffered a sudden memory loss and could not recall specific instances or occasions of working with Mr Wild. 258

[124] Finally, it was submitted that Mr Higgins’ evidence smacked of “toeing the company line” and of having been “proofed”, if not coached, by Mr Williams. Mr Watters contended that Mr Higgins’ evidence should be disregarded in light of Mr Wild’s concession that he had the guard cabin door open on approach to the Bowen Hills station. 259

Ms Pocock

[125] Mr Watters argued that Ms Pocock was a refreshing witness and that she was intelligent, alert, honest and forthright in her answers. It was said that she had readily conceded where errors had been made and further, had conceded the critical points which favour Mr Wild's case. An example of this was that it was Ms Pocock who informed the hearing that the mistake with the two Traincrew Notices 03/2009 did not become evident until she was about to complete the Show Cause letter. 260

[126] Further, it was contended that Ms Pocock had accepted that the second Notice (dated 16 January 2009) does provide for some flexibility and/or a discretion by the guard. 261

Application of the law to the facts

[127] It was submitted that, when regard is had to the facts, Fair Work Australia would be satisfied that Mr Wild's dismissal was harsh, unjust and unreasonable. 262 The Tribunal was referred to Woolworths Ltd (T/A Safeway) v Cameron Brown.263

Valid reason

[128] Mr Watters argued that there was insufficient evidence of the nature set out in Briginshaw v Briginshaw and Neat Holdings v Karajan Holdings Pty Ltd, before the respondent at the time of Mr Wild’s dismissal, such that any finding that Mr Wild engaged in such serious misconduct, could be substantiated. It was stated that the findings made against Mr Wild for alleged serious safety breaches amount to serious misconduct which has heavy consequences for Mr Wild’s future employment prospects. It was stated that there was no evidence before QR that Mr Wild, on 4 and 12 August 2010, or at any other time, acted with such impropriety and engaged in misconduct so serious, that his actions warranted his dismissal. 264

[129] It was submitted that the only findings possible are:

• QR was wrong in finding a serious safety breach against Mr Wild and wrongly issued a final warning Notice on 17 April 2009 regarding Mr Wild crossing the mainline tracks.



• The true, accurate, current and binding directions regarding the closure of the train guard’s cabin door, at all relevant times, was Traincrew Notice 03/2009 dated 16 January 2009. This replaced and/or superseded Traincrew Notice 03/2009 dated 9 January 2009. Traincrew Notice 03/2009, dated 16 January 2009, provides for the discretion of the guard in determining the appropriate juncture to open the guard’s door on approach/departure from a platform.



• Mr Wild, whilst performing guard duties on 4 and 12 August 2010 and on all other occasions, considered the safety, security and welfare of passengers as paramount. First and foremost, Mr Wild’s conduct is to take whatever action he deems necessary, and in his discretion as the guard of the train, to ensure passengers and crew are protected. In the event that this requires the guard cabin door to be open before the train comes to a complete stop, such conduct it is authorised by Traincrew Notice 03/2009 dated 16 January 2009.



• The practice of guards observing the train and platform on approach/departure from a station has been custom and practice for over 50 years.



• The practice continues today with the CCTV footage showing all 3 guards who replaced Mr Wild being in breach of the Traincrew Notice 03/2009.



• QR was required to issue Traincrew Notice 88/2010 on 6 October 2010 because the practice was continuing.



• QR has failed to provide any training or support, including the reasoning for the change in custom and practice, to Mr Wild to assist with his compliance with the Traincrew Notice.



• QR, having recognised that Mr Wild was struggling with adopting the new practice, failed to offer Mr Wild participation in the “Tutor Guard” program.



• The evidence of Mr Wild is that he did not use the words “fuck off” directly at or to Mr Williams. A plausible and understandable reason for his use of such language was provided by Mr Wild. The use of such language is unacceptable but, its use in the circumstances of this case, cannot be relied upon to justify the termination of Mr Wild's employment. 265

Notification of the reason for dismissal

[130] It is conceded that Notice was given to Mr Wild in respect of his alleged misconduct on 4 and 12 August 2010. However, Mr Wild was given Notice on 16 August 2010 to attend an interview on 17 August 2010 - 24 hour’s Notice - which denied the applicant the opportunity to collect further evidence in his defence eg. video tape evidence that guards are continuing to observe the custom and practice and not the Traincrew Notice. 266

[131] With respect to the allegations regarding 26 September 2010, it was argued that these were not properly put to Mr Wild and that there was no Notice, interview or opportunity to be heard. They should therefore not have been put before the decision maker when he was deliberating on the case as he was most probably unduly influenced by these further allegations. 267

[132] Mr Waters submitted that the evidence is clear that, prior to the Show Cause letter, Mr Wild was only ever asked to respond to the outdated Traincrew Notice 03/2009 dated 9 January 2009. It was stated that the failure to ask the applicant to respond to the current Traincrew Notice was a denial of natural justice. This could not be remedied by simply including the correct Traincrew Notice in the Show Cause letter. 268

Opportunity to respond

[133] The applicant concedes that he has had an opportunity to respond. However, there are exceptions to this concession - that Mr Wild was given insufficient preparation time prior to the interview, the allegations concerning 26 September 2010 were not properly put and may have unduly influenced the decision maker, and the current Traincrew Notice was never put to him. 269

Findings

[208] I have considered carefully the four instances when it is alleged that Mr Wild refused to follow a lawful instruction. I am not satisfied that any of these constitute refusal to follow a lawful instruction. With respect to the first example, it is indicated in the termination letter that Mr Wild agreed but that he felt that he had a duty of care to passengers. That would seem to be an agreement rather than a refusal but that Mr Wild still had reservations.

[209] The second instance is described in the letter as Mr Wild being willing to make the commitment that the cabin door would remain closed. He had then made the comment that “old habits die hard”. Again, I have not been convinced that this constitutes a refusal to follow a lawful instruction.

[210] In terms of Mr Wild stating that he did not have to speak to anybody he did not wish to, this would appear to be, prima facie, a refusal to follow a lawful instruction. However, Mr Wild’s comment was made during the first disciplinary meeting. It did not occur in fact, at any point in time, after it was said. Therefore, as he subsequently did not refuse to speak to his supervisor when he was being spoken to, it is not possible to find that, beyond making those comments in the context of that meeting, Mr Wild had done more than say that he did not have to speak to anyone that he did not want to.

[211] The last instance regarding the recording is in a similar vein to the previous example. For the same reasons set out in the paragraph above, it is not possible to find that, definitively, Mr Wild was refusing to obtain prior permission to record a meeting or that he put into effect, his words that he could record anything he liked.

[212] Finally, with respect to these instances, they may have been more accurately described by Ms Pocock in her first brief, in early October 2010, as:

“During the information gathering process, Mr Wild has demonstrated an unwillingness to comply with lawful and reasonable work instructions issued by his supervisors, if he does not agree with the instruction”. 382

[213] However, it should be made clear that the evidence shows agreement being expressed by Mr Wild to comply, albeit, followed by a “but”. Mr Wild’s responses may be better described, therefore, as qualification of a commitment rather than a refusal.

Previous final warnings

[214] The letter of termination stated that Mr Wild’s behaviour over the recent past did not support Queensland Rail’s commitment to safety and Zero Harm philosophy. Specific reference was made to the final warning letters of 17 April 2009 and 16 March 2010 respectively. 383 Both of these final warnings were included in Ms Pocock’s brief to Mr Wright in early October 2012 as part of Mr Wild’s disciplinary record. His record was said to be one of “persistent, inappropriate and unsafe behaviour”.384

[215] With respect to the final warning issued on 16 March 2010 Mr Wild confirmed that it concerned his unsafe behaviour of: leaning out of the train, in an unsafe way, on arriving at Manly (12 November 2009); and, on 24 November 2010, exiting the train by jumping from the cab to the ground and walking through the stabling yard with his safety vest worn incorrectly (undone). Mr Wild accepted that this behaviour was in breach of the Code of Conduct and QR’s safety requirements. 385

[216] The other final warning taken account of (17 April 2009) concerned Mr Wild crossing mainline tracks instead of using the designated overhead bridge and path. 386

Findings

[217] With respect to determining whether there was a valid reason for Mr Wild’s dismissal, the Tribunal is inclined to only take into account the final warning dated 16 March 2010. The other warning concerned an incident on 20 March 2009 which was about 17 months prior to the incidents in August 2010. 387

Conspiracy

[218] Finally, there is one further issue that needs to be dealt with. Throughout his time in the witness box, Mr Wild maintained that his dismissal was the result of a conspiracy by QR. It was his view that, over the previous two years, there had been a deliberate building of a case against him which started when he was disciplined for crossing the tracks at Petrie in 2009. He said that, just prior to being reprimanded for this, he had taken a gun off a person at Bray Park station. However, QR had swept it under the carpet as they did not want bad publicity like that. Mr Wild also gave other examples. 388 He stated that there was then the assault of him by Mr Stafford who was “...a member of - my words, I’m sorry - the ‘dark side’ - who has used this group of people to - using their power to get rid of me....”.389

[219] For the respondent’s part, these allegations were denied. It was submitted that Mr Wild’s dismissal was the result of his unsafe and unacceptable behaviour, with respect to QR’s safety policies and philosophy and his unacceptable behaviour towards his supervisor, in contravention of the Code of Conduct and Values and Behaviours.

Findings

[220] I have carefully considered all of the material before me but I have not been persuaded that there was a conspiracy within QR to get rid of Mr Wild. Despite Mr Wild’s conviction that this was the case, there is no evidence of this before me.

Summary

[221] In determining whether there was a valid reason for Mr Wild’s dismissal, I find that:

• On 4 and 12 August 2010, Mr Wild had the cabin door open as the train approached the platform at the Bowen Hills station. I do not find that the reasons given by Mr Wild for having the guard cabin door open are reasons which are consistent with the second Traincrew Notice. In essence, Mr Wild justified keeping the door open because of his personal commitment to people -to their safety - his duty of care to passengers. It was his view that having the door open when arriving at the platform meant that, as he could see more, he could be more aware of the surroundings (the issue about which Traincrew Notice will be dealt with later in this decision). Mr Wild was unable, in either of the two meetings on 17 August 2010 and 17 September 2010 or in his response to the Show Cause letter, to provide a specific practical reason for why the door was open on 4 and 12 August 2010. The duty of care to passengers explanation provided by Mr Wild, which he also gave during the hearing, transcends the issue of which Traincrew Notice he was being questioned about. This is because he provided a philosophical position for having the door open.



• On 12 August 2010, Mr Wild walked away from his supervisor before the conversation had ended. This is inappropriate and unacceptable behaviour (insubordination) by an employee towards their supervisor.



• On 12 August 2010, Mr Wild said “fuck off” as he was at the door of the meal room. When he swore, he knew that it was likely that his supervisor (Mr Williams) would hear him and he assumed that Mr Williams would think that the swearing was directed at him. This is also inappropriate and unacceptable behaviour by an employee towards their supervisor.



• A previous final warning was issued to Mr Wild on 16 March 2010 regarding unsafe behaviour.



• During the meetings on 17 August 2010 and 17 September 2010, commitments were given by Mr Wild which were then qualified in some way as he did not agree with the change to the 30 year old custom and practice. eg. “old habits die hard”.

[222] Taking all of these findings into account, I find that there was a valid reason for Mr Wild’s dismissal. When taken all together, these findings constitute a valid reason for the termination of Mr Wild’s employment.

[223] In reaching this conclusion, account has been taken of Mr Wild’s strongly held view that, particularly since he made the complaint against Mr Stafford, there has been a conspiracy in QR to set him up for dismissal.

Notification – s.387(b)

[224] It was conceded by the applicant that notification was given in respect to his alleged misconduct on 4 and 12 August 2010. However, Mr Watters submitted that only 24 hours notice was provided of the interview on 17 August 2010. This had resulted in Mr Wild being denied the opportunity to collect and collate further evidence in his defence. 390

[225] Further, it was submitted that the allegations regarding the incident on 26 September 2010 were not properly put to Mr Wild, nor did he have an opportunity to be heard. Mr Watters contended that these allegations should not have been put before the decision maker at the point in time when he was deliberating on the case and he stated that Mr Wright was most probably unduly influenced by them. 391

[226] It was argued that, during the information gathering process (interviews of 17 August 2010 and 17 September 2010), Mr Wild was only ever asked to respond to the first Traincrew Notice dated 9 January 2009. Mr Wild was not provided with the correct Traincrew Notice 03/2009 until it was attached to the Show Cause letter of 8 October 2010. Mr Watters submitted that QR’s failure in this regard was a denial of natural justice and one that could not be remedied by simply including it with the Show Cause letter. 392

[227] For the respondent’s part, it was contended that Mr Wild was notified of the reasons why he was dismissed in the form of the termination letter dated 4 November 2010. 393

Findings

[228] The letter of termination to Mr Wild, dated 4 November 2010, set out, in a comprehensive manner, the reasons for his dismissal. This document had been preceded by a Show Cause letter, dated 8 October 2010, which outlined the outcome of the information gathering process. The Show Cause letter set out the allegations and the findings that QR had made. It requested a written response to the allegations and reasons why Mr Wild should not be dismissed. Therefore, I am satisfied that Mr Wild was notified before, and at the time of, his dismissal of the reasons for his dismissal.

Opportunity to respond – s.387(c)

[229] The applicant conceded that he had had an opportunity to respond, save for the denial of natural justice and the other breaches of process contended by Mr Watters in paragraphs 224 - 226 above. 394

[230] It was submitted by the respondent that Mr Wild was given an opportunity to respond on 12 August 2010, 18 August 2010, 16 September 2010 and 8 October 2010. 395

Findings

[231] The evidence of Ms Pocock indicates, supported by other of the respondent’s witnesses, that Mr Williams had shown Mr Wild the incorrect Traincrew Notice 03/2009, on 12 August 2010. The Notice given to Mr Wild had been superceded by the second Traincrew Notice dated 16 January 2009. As at 12 August 2010, the Notice which Mr Williams showed Mr Wild was not therefore the current and applicable Notice. Mr Wild was then interviewed and questioned twice about the first Traincrew Notice. His responses, therefore, were in response to a Notice which directed that the guard’s cab door must be CLOSED, on arriving at the station, until the train comes to a complete stop. When Ms Pocock was preparing her first brief to Mr Wright in early October 2010, she realised that there were two Traincrew Notices 03/2009 and that Mr Wild had been interviewed about the superceded one.

[232] It is clear from the documentation that the second Traincrew Notice was attached to the Show Cause letter of 8 October 2010. However, the fact that, during the information gathering process, Mr Wild had been questioned and asked to respond to the incorrect Notice, was not revealed by QR. Neither was Mr Wild given the opportunity to be re-interviewed about his alleged non compliance with the correct Notice. In addition, Mr Wild’s responses to the first Traincrew Notice were not disregarded during consideration of whether or not to dismiss him. This would appear to be unfair when the second Traincrew Notice does provide for “an element of discretion” when the Notice he was asked to respond to provided zero discretion.

[233] Further, the Show Cause letter stated that it was alleged that Mr Wild had again contravened the Traincrew Notice 03/2009 on 26 September 2010. Although the Show Cause letter said that it only concerned the incidents on 4 and 12 August 2010, it did raise the 26 September 2010 incident. The fact that the September 2010 incident was raised at this time could well lead to a perception that, as a result, it had unduly influenced Mr Wright when he was considering whether or not to dismiss Mr Wild. The raising of this incident at that point in time, was, in my view, inappropriate and unfair.

[234] Therefore, I accept Mr Watters’ submission that these process failures could be seen to represent a denial of natural justice. It is difficult to understand how the error regarding the Traincrew Notice occurred within operational management of QR. It is also not easily understood as to why, once the error had been discovered, it was not declared to the applicant and the process re-started.

[235] Accordingly, even though factually, Mr Wild attended interviews on 17 August 2010 and 17 September 2010 and he was asked to respond to the Traincrew Notice, he was not given an opportunity to respond to the correct Traincrew Notice No. 03/2009. The Show Cause letter did give Mr Wild an opportunity to respond to the correct Notice. However, the findings set out in the letter were founded on Mr Wild’s responses to the incorrect Notice. Therefore, whilst Mr Wild technically, was given an opportunity to respond to the correct Notice by the Show Cause letter, the basis for the Show Cause letter was not grounded in proper process and therefore lacked internal integrity.

[236] Taking all of this into account, I am not satisfied that Mr Wild was given a credible opportunity to respond to the allegations/reasons for his dismissal. I have not been persuaded that the process followed by QR accorded Mr Wild procedural fairness.

Support person – s.387(d)

[237] On the basis of the material before me, I find that Mr Wild was supported, firstly, by a union delegate and, secondly, by a solicitor.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[238] This section is not relevant in this case as Mr Wild was not dismissed for unsatisfactory performance.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[239] The applicant’s dismissal involved QR’s Human Resources area and was handled according to QR’s policies and procedures.

Any other matters – s.387(h)

[240] Mr Watters submitted that other relevant matters were:

• Mr Wild is 54 years of age and has limited qualifications.



• He has had 38 years of service.



• He will find it extremely difficult to obtain meaningful employment in another field.



• He is the holder of a Royal Humane Society Award for bravery and QR Commendation for his courage and community spirit.



• Mr Wild firmly believes that he was targeted by QR because of his recalcitrant attitude towards management after QR failed to act on his complaint of assault against Mr Stafford. 396

[241] For the respondent, Mr Franken contended that the Tribunal should also take account of:

• Mr Wild still believes that he was justified in keeping the guard door open.



• Mr Wild still holds the view that he has done nothing wrong. 397

[242] Account will be taken of all these matters.

Conclusions

[243] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on balance, that Mr Wild’s dismissal was harsh.

[244] On the one hand, there was a valid reason for Mr Wild’s dismissal as the result of the incidents on 4 and 12 August, together with the previous final warning. Also, his recent employment history would seem to be inconsistent with him being prepared to undertake his employment in an unqualified manner, in accordance with QR’s policies and directives. On the other hand, I have taken into account Mr Wild’s length of service (38 years) and his previous good conduct (a Royal Humane Society Award for bravery and QR Commendation for his courage and community spirit). Further, recent history appears to reflect a lack of management rigour and a failure to address the issues regarding Mr Wild’s attitude effectively. In addition, as set out above, the application of QR’s disciplinary process, on this occasion, was flawed. Therefore, balancing all of these factors, I find that the termination of Mr Wild’s employment was harsh.

[245] It therefore follows that, pursuant to s.385 of the Act, Mr Wild has been unfairly dismissed.

REMEDY

[246] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[247] With respect to the requirements of s.390, I am satisfied that the applicant was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that the applicant has been unfairly dismissed (s.390(1)(b)). Further, Mr Wild has made an application under s.394 of the Act (s.390(2)).

[248] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met. The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). Mr Wild seeks reinstatement as the only just remedy. On his behalf, Mr Watters argued that this was a case where reinstatement was justified. 398

[249] For its part, QR submitted that reinstatement of the applicant was wholly inappropriate as it has no confidence in his ability to comply with specific directions. This was said to be particularly so, given Mr Wild’s evidence, that he did not believe that he had done anything wrong. 399

[250] Despite Mr Wild’s desire to be reinstated, it is my view that reinstatement would not be appropriate in this case, in all of the circumstances. In reaching this conclusion, I am mindful of the findings that have been made regarding Mr Wild’s attitude and approach. On the other hand, I have also taken into account Mr Watters’ submissions that reinstatement is the only just remedy in this case.

Compensation

[251] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[252] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[253] I will deal with each of the criteria in turn.

s.392(2)(a) - viability of employer’s enterprise

[254] There was no material before me that any order made would affect the viability of the respondent. Therefore, I am satisfied that the order I intend to make will not impact in this regard.

s.392(2)(b) - length of applicant’s service

[255] The length of Mr Wild’s service with Queensland Rail is 38 years. Given the length of Mr Wild’s service, this criteria must be taken into account.

s.392(2)(c) - remuneration would have been likely to receive

[256] It was submitted on behalf of Mr Wild that he would have, at least, received another five years’ remuneration with the respondent. 400

[257] Specific submissions about this criteria were not made by QR. The respondent was of the general view that no remedy should be ordered and that, if an amount in lieu of compensation was to be ordered, the amount should be minimal. 401

[258] In the circumstances, I find that it is likely that Mr Wild would have continued with QR, in the absence of dismissal, for a period of at least 12 months.

s.392(2)(d) - (g) and s.392(3)

[259] It is not possible, at this point in time, to deal with the remaining criteria in s.392(2) nor s.392(3). This is due to there being no evidence nor documentation before the Tribunal that sets out Mr Wild’s weekly wage at the time of his dismissal; any efforts to mitigate his loss; the amount earned, if any, between his dismissal and the date of this decision or likely to be earned between the date of the decision and the receipt of compensation. In addition, there are no submissions concerning s.392(2)(g) nor s.392(3).

[260] Both parties are therefore requested to forward to the Tribunal and to each other, within 14 days of this decision, the missing information (with supporting documentation) set out in the paragraph above relating to the requirements of s.392(2)(d) to (f) inclusive. It is understood that the information regarding the efforts made to mitigate loss and remuneration earned will come primarily from the applicant. Brief submissions concerning s.392(2)(g) and s.392(3) may also be included.

[261] Once the material has been received, the Order 402 for compensation will be finalised by the Tribunal within a week.

COMMISSIONER

Appearances:

C Watters, of Counsel for the Applicant

J Franken, Solicitor for the Respondent

Hearing details:

2010.
Brisbane:
April 11, 12;
June 8, 9.

Final written submissions:

For the Applicant. 30 June 2011.
For the Respondent. 29 July 2011.

 1   Transcript PN 122 - 124

 2   Ibid PN 137 - 146

 3   Ibid PN 147 - 154

 4   Ibid PN 160 - 164

 5   Ibid PN 175 - 195

 6   Ibid PN 197 - 207

 7   Ibid PN 208 - 215

 8   Ibid PN 216

 9   Ibid PN 230 - 244

 10   Ibid PN 245 - 253

 11   Ibid PN 257 - 268

 12   Ibid PN 270 - 291 and 533

 13   Ibid PN 298 - 308

 14   Ibid PN 360 - 364 and 429 - 430

 15   Ibid PN 366, 369 - 370, 431 - 432 and 804 - 805

 16   Ibid PN 371 - 373, 421, 567 and 808

 17   Ibid PN 591 - 603

 18   Ibid PN 604 - 605

 19   Ibid PN 374 - 377, 570 and 574

 20   Ibid PN 829, 846 - 854, 864 - 866 and 1550 - 1551

 21   Ibid PN 379 - 380, 566 and 569 - 570, 574, 849 and 866

 22   Ibid PN 574 - 576 and 794 - 796)

 23   Ibid PN 381 - 383, 404, 802 - 803, 821 - 824 and 1552 - 1554

 24   Ibid PN 809 - 810

 25   Ibid PN 405 and 1039

 26   Ibid PN 653 - 677

 27   Ibid PN 1015 - 1036

 28   Ibid PN 1677 - 1680

 29   Ibid PN 428

 30   Ibid PN 584 - 586

 31   Ibid PN 480 - 487 and 514 - 515

 32   Ibid PN 480

 33   Ibid PN 725 - 732)

 34   Ibid PN 518 - 520, 524 - 532 and 799 - 801)

 35   Ibid PN 538

 36   Ibid PN 788 and Exhibit A1 at paragraph 15

 37   Ibid PN 543 - 556

 38   Ibid PN 564 - 565

 39   Ibid PN 1080 - 1099 and 1561

 40   Ibid PN 1146 - 1150

 41   Ibid PN 765 - 766, 1151 - 1155 and 1190 - 1191

 42   Ibid PN 767 - 768

 43   Ibid PN 1161 - 1163 and 1192 - 1193

 44   Ibid PN 1208 - 1230

 45   Ibid PN 769 - 787

 46   Ibid PN 495, 516 and 522

 47   Ibid PN 616

 48   Ibid PN 612 - 646

 49   Ibid PN 1681 - 1695

 50   Ibid PN 554 - 563, 718 and 814 - 817

 51   Ibid PN 720 - 721 and 1379 - 1382

 52   Ibid PN 534

 53   Ibid PN 444 - 453, 478 - 479 and 1344 - 1377

 54   Ibid PN 444 - 454 and 478 - 479

 55   Ibid PN 454

 56   Ibid PN 873 - 891 and 1559 - 1660

 57   Ibid PN 872 - 898

 58   Ibid PN 464

 59   Ibid PN 464 - 473

 60   Ibid PN 1060 - 1064 and 1717 - 1731

 61   Ibid PN 1042 - 1079

 62   Ibid PN 1156 - 1163 and 1236 - 1245

 63   Ibid PN 1251 - 1256

 64   Ibid PN 1259 - 1280

 65   Ibid PN 1288 - 1290

 66   Ibid PN 678 - 709, 782 - 784 and 806 - 807

 67   Ibid PN 1291 - 1292

 68   Ibid PN 1111 - 1144

 69   Ibid PN 1295 - 1298

 70   Ibid PN 1300 - 1306

 71   Ibid PN 1307

 72   Ibid PN 1310 - 1314

 73   Ibid PN 1315 - 1320

 74   Ibid PN 1526 - 1544 and Exhibit A6

 75   Ibid PN 1322

 76   Ibid PN 1323 - 1329

 77   Ibid PN 1330 - 1334

 78   Ibid PN 1335 - 1336

 79   Exhibit R4

 80   Ibid at paragraph 1

 81   Ibid at paragraph 7 and Transcript PN 1819 - 1830, 1844

 82   Transcript PN 1833 - 1836

 83   Ibid PN 1837 - 1839 and 1862

 84   Ibid PN 1840 - 1842 and Exhibit R4 at paragraph 5

 85   Ibid PN 1863 - 1864

 86   Ibid PN 1879 – 1876

 87   Ibid PN 1844 - 1845

 88   Ibid PN 1846 - 1848 and 1852

 89   Ibid PN 1853 - 1856 and 1903 - 1906

 90   Ibid PN 1902

 91   Ibid PN 1907 - 1918

 92   Ibid PN 1920

 93   Ibid PN 1877 - 1879 and 1900 - 1901

 94   Ibid PN 1877 - 1886

 95   Ibid PN 1887 – 1899

 96   Ibid PN 1928 and 1964 - 1974

 97   Ibid PN 1923 - 1931 and 1977 - 1980

 98   Ibid PN 1933 – 1955

 99   Ibid PN 1959 - 1963

 100   Ibid PN 1981 - 1983

 101   Ibid PN 1989 - 2002 and Exhibit R4 at paragraph 18

 102   Ibid PN 2003 - 2015

 103   Ibid PN 2016 - 2024 and Exhibit R4 at paragraph 14

 104   Ibid PN 2016 - 2038

 105   Ibid PN 2039 - 2042 and 2111

 106   Ibid PN 2043 - 2052 and Exhibit R4 at paragraphs 10 and 15 and Attachment BH5

 107   Ibid PN 2054 - 2057

 108   Ibid PN 2095

 109   Ibid PN 2207 - 2215 and 2219 - 2223

 110   Ibid PN 2194 - 2206

 111   Ibid PN 2215 - 2218

 112   Ibid PN 2192 - 2193

 113   Ibid PN 2058 - 2083

 114   Ibid PN 2112 - 2129

 115   Ibid PN 2131 - 2137 and 2158 - 2161

 116   Ibid PN 2162 - 2163

 117   Ibid PN 2170 - 2174

 118   Exhibit R5

 119   Ibid at paragraph 1 and Transcript PN 2358 - 2359

 120   Ibid PN 2370

 121   Ibid PN 2357 and 2368

 122   Ibid PN 2318 and Exhibit R6

 123   Ibid PN 2371 - 2379, 2656 - 2658, 2881 - 2884 and Exhibit R5 at paragraphs 6 and 8

 124   Ibid PN 2380 - 2381

 125   Ibid PN 2416 - 2418

 126   Ibid PN 2383 - 2410

 127   Ibid PN 2430 - 2432 and 2451 - 2453

 128   Ibid PN 2430 - 2432

 129   Ibid PN 2459 - 2464

 130   Ibid PN 2454 and 2458

 131   Ibid PN 2486 - 2489

 132   Ibid PN 2490 - 2492 and Exhibit R5 at paragraph 10

 133   Ibid PN 2497 - 2513

 134   Ibid PN 2525 - 2528

 135   Ibid PN 2532 - 2545

 136   Ibid PN 2546 - 2548

 137   Ibid PN 2550 - 2552

 138   Ibid PN 2559 - 2564

 139   Ibid PN 2565 - 2566

 140   Ibid PN 2567 - 2572

 141   Ibid PN 2573 - 2575 and 2587 - 2591

 142   Ibid PN 2592 - 2598, 2659 - 2660, 2885 - 2888 and Exhibit R5 at paragraph 11

 143   Ibid PN 2599, 2605 - 2606, 2866 and 2891 - 2893

 144   Ibid PN 2600

 145   Ibid PN 2602

 146   Ibid PN 2654

 147   Ibid PN 2607 - 2608

 148   Ibid PN 2610 - 2612

 149   Ibid PN 2613 - 2615, 2655 and 2872

 150   Ibid PN 2616 - 2636

 151   Ibid PN 2640 - 2646

 152   Ibid PN 2647 - 2654

 153   Exhibit R5 at attachment BW3

 154   Transcript PN 2659 - 2669

 155   Ibid PN 2670 - 2675

 156   Ibid PN 2676 - 2680

 157   Ibid PN 2681 - 2686 and 2864 - 2865 and Exhibit R5 at paragraph 12

 158   Exhibit R6

 159   Transcript PN 2692 - 2696

 160   Ibid PN 2697 - 2719

 161   Ibid PN 2720 - 2722 and 2835 and Exhibit R5 at paragraph 17

 162   Ibid PN 2722

 163   Ibid PN 2836 - 2841 and 2852

 164   Ibid PN 2848 - 2850 and 2852 - 2855

 165   Ibid PN 2727 - 2729 and 2738

 166   Ibid PN 2730 - 2733 and 2737

 167   Ibid PN 2739 - 2741

 168   Ibid PN 2741 - 2743

 169   Ibid PN 2745 - 2747 and 2758 - 2759

 170   Ibid PN 2748 - 2762

 171   Ibid PN 2765 - 2776

 172   Ibid PN 2843 - 2847

 173   Ibid PN 2778 and 2786

 174   Ibid PN 2783 - 2788 and 2791

 175   Ibid PN 2797 - 2825

 176   Ibid PN 2856 - 2863

 177   Ibid PN 2867 - 2871

 178   Ibid PN 2873 - 2875 and Exhibit R5 at paragraph 33

 179   Exhibit R7

 180  Ibid at paragraph 1

 181   Transcript PN 2928 - 2933 and 2942

 182   Ibid PN 2946 - 2947

 183   Ibid PN 2949 - 2953 and 3109 - 3110 and Exhibit R7 at paragraph 5

 184   Ibid PN 2954 - 2956

 185   Ibid PN 2957 - 2962 and 3130 - 3131 and Exhibit R7 at paragraph 8

 186   Ibid PN 2963 - 2964 and 3132 and Ibid

 187   Transcript PN 3133 - 3140

 188   Ibid PN 2965 - 2967 and 3085 - 3089

 189   Ibid PN 3090 - 3094

 190   Ibid PN 3141 - 3152

 191   Ibid PN 2972 - 2973, 3996 - 3004 and 3053

 192   Ibid PN 3054 - 3057

 193   Ibid PN 3153 - 3160 and 3169

 194   Ibid PN 3174 - 3177

 195   Ibid PN 3059 - 3066

 196   Ibid PN 3067 - 3075

 197   Ibid PN 3076 - 3080

 198   Ibid PN 3081 - 3083

 199   Ibid PN 3095 - 3103 and 3111

 200   Ibid PN 3104 - 3108

 201   Ibid PN 3112 - 3120

 202   Exhibit R8

 203   Ibid at paragraph 1

 204   Ibid at paragraph 26 and Transcript PN 3231 - 3234

 205   Transcript PN 3235 - 3262 and 3294 - 3295

 206   Ibid PN 3262 - 3268

 207   Ibid PN 3269 - 3271

 208   Ibid PN 3288 and Exhibit R8 at paragraph 13

 209   Ibid PN 3289 - 3293

 210   Ibid PN 3294 - 3295 and 3411

 211   Ibid PN 3571

 212   Ibid PN 3296 - 3302

 213   Ibid PN 3408 - 3410 and Exhibit R8 at paragraph 24

 214   Ibid PN 3303 - 3313, 3354 and 3524 - 3530

 215   Ibid PN 3355 - 3358

 216   Ibid PN 3359 - 3360

 217   Ibid PN 3366

 218   Ibid PN 3377 - 3380

 219   Ibid PN 3315 - 3329, 3352 - 3353 and 3405 - 3407

 220   Ibid PN 3314 and 3339

 221   Ibid PN 3342 - 3345

 222   Ibid PN 3348 - 3350

 223   Ibid PN 3396 - 3399 and Exhibit R8 at paragraph 22

 224   Ibid PN 3417 - 3424 and Ibid at paragraph 27

 225   Ibid PN 3425 - 3432 and 3573 - 3575

 226   Ibid PN 3441 and 3535 - 3539

 227   Ibid PN 3490 - 3494

 228   Ibid PN 3509

 229   Ibid PN 3443 - 3444

 230   Ibid PN 3510 - 3523

 231   Applicant’s written submissions dated 30 June 2011 at paragraph 17

 232   Ibid at paragraphs 29 - 43

 233   Ibid at paragraph 44 - 46

 234   Ibid at paragraph 48

 235   Ibid at paragraph 49

 236   Ibid

 237   Ibid at paragraph 54

 238   Ibid at paragraph 50

 239   Ibid at paragraph 51 and 54

 240   Ibid at paragraph 54

 241   Ibid at paragraph 52

 242   Ibid at paragraphs 52 and 54

 243   Ibid at paragraph 52

 244   Ibid at paragraph 53

 245   Ibid at paragraph 55

 246   Ibid

 247   Ibid at paragraph 56

 248   Ibid

 249   Ibid at paragraph 57

 250   Ibid at paragraph 58

 251   Ibid at paragraph 59

 252   Ibid at paragraph 60

 253   Ibid

 254   Ibid at paragraph 61

 255   Ibid at paragraph 63

 256   Ibid at paragraph 64

 257   Ibid at paragraph 65

 258   Ibid at paragraph 66

 259   Ibid at paragraph 67

 260   Ibid at paragraph 68

 261   Ibid at paragraph 69

 262   Ibid at paragraph 72

 263   PR963023, 26 September 2005; ibid at paragraph 73

 264   Applicant’s written submissions dated 30 June 2011 at paragraphs 74 - 75

 265   Ibid at paragraph 76

 266   Ibid at paragraph 79

 267   Ibid at paragraph 80

 268   Ibid at paragraph 81

 269   Ibid at paragraph 82

 270   Ibid at paragraph 84

 271   Ibid at paragraph 85

 272   Ibid at paragraph 87 and 100

 273   Ibid at paragraphs 89 - 90

 274 (1997) 72 IR 186

 275 (1998) 84 IR 1

 276   Applicant’s written submissions dated 30 June 2011 at paragraphs 91 - 92

 277   Ibid at paragraph 93

 278   Ibid at paragraphs 95 - 96

 279   Ibid at paragraphs 97 - 98

 280   Outline of submissions on behalf of the respondent on evidence dated 29 July 2011 at paragraph 2

 281   Ibid at paragraph 2.1

 282   Ibid at paragraphs 2.2 - 2.4 and 2.7

 283   Ibid at paragraph 2.5

 284   Ibid at paragraph 2.6

 285   Ibid at paragraph 2.8

 286   Ibid at paragraphs 2.9 and 2.10

 287   Ibid at paragraphs 2.11 - 2.12

 288   Ibid at paragraph 2.13

 289   ibid at paragraph 2.14

 290   Ibid at paragraph 2.15

 291   Ibid at paragraph 2.16

 292   Ibid at paragraph 2.17

 293   Ibid at paragraphs 2.18 - 2.20

 294   Ibid at paragraph 2.21

 295   Ibid at paragraph 3

 296   Ibid at paragraph 3.1.1

 297   Ibid at paragraph 3.1.2, 3.2 and 3.3

 298   Ibid at paragraph 3.3.2

 299   Ibid at paragraph 3.4

 300   Ibid at paragraph 4

 301   Ibid at paragraph 6.7

 302   Ibid at paragraph 4

 303   Ibid

 304   Ibid at paragraph 6.9

 305   Ibid at paragraph 5.3

 306   Ibid at paragraphs 5.3, 6.1, 6.5 and 6.9

 307   Ibid at paragraph 5.3

 308   Ibid

 309   Ibid at paragraphs 6.2.1 and 6.3

 310   Ibid at paragraph 6.2.1

 311   Ibid at paragraph 6.2.1

 312   Ibid at paragraph 6.2.2, 6.6 and 6.9

 313   Ibid at paragraph 6.9

 314   Ibid

 315   Ibid

 316   Ibid

 317   Respondent's submissions in response to the applicant's application dated to March 2010 at paragraph 8

 318   Ibid at paragraph 7(l)

 319   Outline of submissions on behalf of the respondent on evidence, dated 29 July 2011, at paragraph 7 (a)

 320   Ibid

 321   Ibid at paragraph 7 (b)

 322   Respondent's submissions in response to the applicant's application dated to March 2010 at paragraph 47

 323   Outline of submissions on behalf of the respondent on evidence, dated 29 July 2011, at paragraph 7 (c)

 324   Ibid at paragraph 7 (d)

 325  Ibid at paragraph 7 (e)

 326   Ibid at paragraph 7 (f)

 327   Ibid at paragraph 7.2 (d)

 328   QR Passenger Pty Ltd Traincrew Union Collective Workplace Agreement 2009 (Exhibit R8 at paragraph 40 and Attachment 22)

 329   Exhibit R8 at Attachment 21

 330   Ibid

 331   Ibid at Attachment 19

 332   Ibid at Attachment 21

 333   Ibid

 334   Ibid

 335   Ibid

 336   Ibid

 337   Ibid

 338  Ibid

 339   Ibid

 340   Ibid

 341   Transcript PN538, 887 - 891 and 1057

 342   Exhibit 8 at Attachment 6 at 07.49

 343   Transcript PN 637 - 638

 344   Ibid PN 642

 345   Ibid PN 644 - 646

 346   Exhibit 8 at Attachment 6 at 07.41

 347   Ibid at 04.50

 348   Ibid at 10.52

 349   Ibid at 12.15 - 12.23

 350   Exhibit R8 at Attachment 10

 351   Ibid at page 14 and Transcript PN 893 - 898

 352   Ibid at page 2 and ibid PN 1023 and 1078

 353   Ibid at page 2 and ibid PN 1079

 354   Ibid at page 2

 355   Ibid at page 2 and Transcript PN 899 - 904

 356   Transcript PN 1052 - 1065

 357   Ibid PN 1111 - 1144

 358   Ibid PN 3352 - 3353

 359   Exhibit R8 at Attachment 21

 360   Exhibit A1 at Attachment MJW9

 361   Ibid at Attachment MJW1

 362   Transcript PN 298 - 306, 362 - 366, 369 - 371, 429 - 432, 696 - 697 and 703 - 705

 363   Ibid PN 695 - 708

 364   Ibid PN 707 - 709

 365   Ibid PN 604 - 605 and Exhibit R8 at Attachment 10 at page 2

 366   Exhibit R8 at Attachment 8 at 8.48 - 8.58

 367   Ibid at 13.30

 368   Ibid at 13.50

 369   Transcript PN 2592 - 2958, 2659 - 2660, 2885 - 2888 and Exhibit R5 at paragraph 11

 370   Ibid PN 2595 and 2599

 371   Exhibit R8 at Attachment 10 at page 3

 372   Transcript PN 373 - 379

 373   Ibid PN 802 - 804 and 821 - 822

 374   Ibid PN 373 - 377, 379 - 381, 386 - 388, 404, 809 - 810 and 821 - 822

 375   Exhibit R8 at Attachment 6 at 08.18 and 09.06

 376   Ibid at Attachment 10 at page 3 and Transcript PN 794 - 797

 377   Ibid PN 2596 - 2597 and 2602 - 2603

 378   Ibid PN 2599 - 2600

 379   Ibid PN 2604

 380   Ibid PN 2602, 2605 - 2606

 381   Exhibit R8 at Attachment 10 at page 4

 382   Ibid at Attachment 14 at page 2

 383   Ibid at page 5

 384   Ibid at page 2

 385   Ibid at Attachment 11 and Transcript PN 1316 - 1322

 386   Ibid at Attachment 14 at page 2

 387   Ibid at Attachment 11

 388   Transcript PN 5514 - 5563

 389   Ibid PN 718

 390   Applicant’s written submissions, date 30 June 2011 at paragraph 79

 391   Ibid at paragraph 81

 392   Ibid

 393   Outline of submissions on behalf of the Respondent on evidence, dated 29 July 2011, at paragraph 7 (b)

 394   Applicant’s written submissions, date 30 June 2011 at paragraph 82

 395   Outline of submissions on behalf of the Respondent on evidence, dated 29 July 2011, at paragraph 7 (c)

 396   Applicant’s written submissions, date 30 June 2011 at paragraph 84

 397   Outline of submissions on behalf of the Respondent on evidence, dated 29 July 2011, at paragraph 7 (f)

 398   Applicant’s written submissions, date 30 June 2011 at paragraph 84

 399   Outline of submissions on behalf of the Respondent on evidence, dated 29 July 2011, at paragraph 7 (f)

 400   Applicant’s written submissions, date 30 June 2011 at paragraph 96

 401   Outline of submissions on behalf of the Respondent on evidence, dated 29 July 2011, at paragraph 7.2 (a) - (d)

 402   PR524831

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