Peter Kidd v TransAdelaide - [2010] FWA 2580

[2010] FWA 2580

FAIR WORK AUSTRALIA

DECISION

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

Peter Kidd
v
TransAdelaide
(U2009/13957)

COMMISSIONER HAMPTON

ADELAIDE, 21 APRIL 2010

Termination of employment - Alleged assault of passenger by Tram operator - Whether serious misconduct - Whether valid reason - Whether harsh, unjust or unreasonable – Whether mitigating circumstances a relevant consideration - Applicant was provoked but did push passenger - Some misconduct occurred - Dismissal harsh and unreasonable in all of the circumstances - Remedy - Reinstatement appropriate - Application granted.

Introduction and Case Outline

[1] This is an application by Mr Peter Kidd (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role as a Tram Operator with TransAdelaide (the respondent) following an incident with passengers on a tram that took place on the evening of 20 October 2009.

[2] On that night, during the course of an exchange with some young adult male passengers who were deliberately preventing the tram doors from closing, the applicant firmly pushed one of the passengers. The applicant was then attacked both on the tram and the adjoining platform and suffered head and other injuries. Following an investigation by the respondent and a disciplinary process, the applicant was dismissed on the basis that he had initiated the physical contact with the passenger and that no satisfactory explanation for the “violent” response had been provided. Further, the respondent relied upon the alleged failure of the applicant to disclose his part in the events when completing the original incident report 1.

[3] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 2 The hearing also included inspections of an equivalent tram to examine the location of certain cameras and door closing mechanisms, and the viewing of Closed Circuit Television (CCTV) footage of the incident.

[4] The applicant, who was represented by the Australian Rail, Tram and Bus Industry Union (the ARTBIU), contended that the decision to dismiss was harsh because it did not take into account the circumstances applying at the time of the incident including the nature of the passengers’ conduct and the threat of harm to the applicant. In particular, the actions of the applicant were described as being a defensive action that was reasonable in the circumstances. Further, it was argued that the applicant’s long and good work record was not sufficiently taken into account by the respondent.

[5] The applicant also argued that the dismissal was unreasonable on a number of grounds including what was said to be an inadequate investigation and a failure by the respondent to follow its own investigation and disciplinary policy and procedure.

[6] The applicant seeks reinstatement with consequential orders.

[7] The respondent argues that the contact made with the passenger was violent and took place in the context of the applicant’s failure…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] FWA 2580
Decision Date: 21 APRIL 2010

CaseChat Overview and Summary

The applicant, Peter Kidd, appealed against his dismissal from employment with TransAdelaide, following an incident in which he assaulted a passenger. The Federal Circuit Court heard the matter and was tasked with determining whether the dismissal was justified on the grounds of serious misconduct, and if not, whether it was harsh, unjust, or unreasonable. The central issue was whether the respondent had valid grounds for dismissal, given that Kidd had been provoked but still engaged in physical altercation with the passenger.

The court examined whether the assault constituted serious misconduct, which would justify immediate termination. The court acknowledged that Kidd's actions were wrong, but also considered the context in which the assault occurred. The court recognised that Kidd had been provoked but found that this did not absolve him of responsibility for his actions. Despite this, the court concluded that the misconduct, while serious, did not reach the level of seriousness that would warrant immediate dismissal. The court also considered whether the dismissal was harsh, unjust, or unreasonable, taking into account mitigating factors such as Kidd's otherwise unblemished employment record and the circumstances leading up to the incident.

The court found that the dismissal was indeed harsh and unreasonable given the totality of circumstances. The court highlighted the importance of considering mitigating factors, which in this case, included Kidd's reaction to provocation and his otherwise good employment history. The court determined that the dismissal did not meet the threshold for being considered fair and justified under the relevant employment legislation. Consequently, the court ruled that Kidd's dismissal was not only unjustified but also harsh, unjust, and unreasonable. The court granted the application for reinstatement, ordering Kidd's return to his former position with TransAdelaide.

Orders