Peter White v Asciano Services Pty Ltd t/as Pacific National

[2015] FWC 7466

[2015] FWC 7466

FAIR WORK COMMISSION

DECISION

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

Peter White
v
Asciano Services Pty Ltd t/as Pacific National
(U2015/3912)

DEPUTY PRESIDENT SAMS SYDNEY, 30 OCTOBER 2015

Termination of employment – Train Driver Trainer dismissed for serious misconduct – application for an unfair dismissal remedy – alleged serious safety breaches by applicant – alleged breaches of employer’s policies, procedures and Code of Conduct – allegations regarded as ‘reckless violation’ of employer’s policies and procedures – two person train operation between Broken Hill and Parkes – two primary reasons for dismissal – leaving Co-Driver behind – speeding – other minor allegations not determinative – use of on-board toilet while train in motion – custom and practice at Parkes depot – breaches of policies and procedures by Co-Driver – failure to ensure safety of Co-Driver – applicant unaware Co-Driver left the train – speeding on numerous occasions – culpability of Co-Driver – data logger records disclose numerous instances of speeding – investigation of allegations – applicant’s failure to acknowledge any wrongdoing or responsibility – whether there was a valid reason for dismissal – first allegation not made out – second allegation proven as a ‘one off’ incident – mitigating circumstances – criticism of employer’s investigation – no issue of witness credit – inconsistent treatment – no previous disciplinary history in 9½ years – contrition and acknowledgement of responsibility – remedy of reinstatement sought –reinstatement not impractical – loss of trust and confidence not established – significant discount of lost remuneration due to conduct of applicant – imperative of compliance with safety policies and procedures – reinstatement, continuity of service, partial lost remuneration – orders made.

[1] Mr Peter White (the ‘applicant’) was employed as a Train Driver Trainer by Asciano Services Pty Ltd t/as Pacific National (the ‘respondent’). The applicant commenced employment on 21 November 2005 and was employed under the terms of the Pacific National Bulk Rail Enterprise Agreement 2013 (the ‘Agreement’) on a base salary of $77,551 per annum. The applicant was dismissed for misconduct following a serious safety incident on 24 November 2014 en route between Broken Hill and Parkes in New South Wales when the applicant was the Train Driver with Ms Mel Burton as his Co-Driver. In the applicant’s termination letter dated 24 February 2015, the respondent set out the specific allegations against the applicant as follows:

‘Employment with Asciano Services Pty Ltd trading as Pacific National

We have received and considered your response to the allegations put to you regarding the serious safety incident that occurred late last year and which was the subject of investigation by Pacific National which uncovered numerous and varied breaches of procedures designed to keep employees and assets safe.

Termination of Employment
Pacific National has given serious consideration to all of the information collected during the investigation as well as your responses to the serious allegations put to you and decided to terminate your employment.

In Pacific National’s view, your behaviour on 24 November 2014 demonstrated a reckless violation of a number Pacific National’s policies and procedures, including the Asciano Code of Conduct which individually and taken together demonstrate your lack of general commitment to work safely. In particular as a Driver Trainer, in a position of trust and responsibility you took no action in relation to the multiple incidents of serious safety breaches which occurred during the journey on 24 November and in your responses to the allegations put to you, you have failed to take any responsibility or acknowledge any wrongdoing in relation to the incident. Pacific National has formed the view that you do not understand your basic responsibilities to work safely as a Driver. Furthermore you have demonstrated that you do understand the obligations of a Driver Trainer to educate others to work safely. As a consequence we have serious concerns that if you were to continue in either position with Pacific National there is a high risk that you would repeat this unacceptable and unsafe behaviour. Specifically, as a Driver Trainer:

● You were aware that your Co-Driver Ms Burton had left the locomotive on 3 to 4 occasions whilst the train was in motion (requiring Ms Burton to walk out onto the external footplate of a moving locomotive), and you did not bring the train to a stand, which is in breach of Pacific National accreditation and contravenes “ Safe Work Responsibilities of Train Crew”.

● You allowed Ms Burton to smoke in the vestibule while the train was in motion on route from Broken Hill between 304 occasions, which is in breach of Pacific National’s No Smoking Policy. The policy states ‘all employees, customers, and visitors must not smoke at any time whilst on and around Pacific National premises or equipment’.

● You failed to check your Co-Driver was safely on-board and in the locomotive cabin before departing which we view as a very significant and serious breach of safe working.

● You failed to ensure the train identification number and your employee number were entered into the data logger of Locomotive 8250 at the start of the journey. This is an important process to ensure accountability for the safe handling of the train.

● You did not apply the minimum brake pipe pressure of 70 kpa upon leaving Broken Hill, however, you made an application of 45 kpa, which is in breach of Pacific National’s Train Handling Standard. The policy states that ‘no attempt should be made to release a brake application until the minimum brake pipe reduction of at least 70/85 kpa has been made, and the brake equalises.

● On numerous occasions, you knowingly increased the speed of the train (by notching up) whilst it was already travelling at or above the maximum allowable track speed of 80km per hour, which is in breach of Pacific National Train Handling Standard. This standard has been established for many reasons including operational, legal, and technical considerations. Exceeding speed limits increases the possibility of an accident, damage to loading and equipment and/or increased wear and damage to track structure.

● You were not aware of the precise location and safety of Ms Burton before you released the train’s brakes and departed the area in the vicinity of the 510km point in the Ootha – Yarrabandal section of the track.

In your response from your Solicitor, you have stated that you have not breached your responsibilities, and that the matters which Pacific National has raised above, concerning the Co-Driver are not matters within your control. This is not an explanation which Pacific National accepts as a reasonable excuse for your actions.

Peter, we view the incident of 24 November, 2014 as a significant breach of your responsibilities as set out above, you have failed to promote a safe workplace by recklessly violating a number of safe working procedures in association with driving a train and you have not performed your work in a safe manner which may have resulted in catastrophic consequences.

Given the seriousness of these breaches, we consider it is not appropriate to apply any remedial action which includes your redeployment to an alternative position within the business.

Given the serious nature of this incident and your failure to take responsibility for your actions, I have made the decision to terminate your employment effective today, 24 February 2015. You will be paid (4) weeks payment in lieu of notice together with your leave entitlements and current wages due.

Statement of Service

A Statement of Service stating your years of service will be provided to you.

Return of Pacific National Property

You are required to return all Pacific National property, including manuals, security keys, travel pass, identification tags, work wear and all information and records in your possession or control to myself. I will contact you to arrange an appointment to return your property and complete relevant paperwork. Any outstanding monies owing to you will be deposited into your nominated bank account once all outstanding Pacific National property and completed paperwork has been returned.

Employee Assistance Program

Pacific National’s Employee Assistance Program is a confidential and professional counselling service that you can access to assist you with any concerns that you may have. Should you wish to speak with a qualified counsellor please contact [number supplied] to arrange an appointment.
If you have any questions regarding information contained in this letter, please don’t hesitate to contact me on [number supplied].’

Notwithstanding the seriousness with which the respondent viewed the allegations, the applicant was paid four weeks’ pay in lieu of notice.

[2] The applicant filed an application with the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for an unfair dismissal remedy; namely reinstatement, on 12 March 2015. A conciliation before a Fair Work Conciliator was conducted on 7 April 2015. However, settlement of the claim was unable to be achieved and directions were issued for the hearing of the matter in Sydney.

[3] I wish to say something about the conduct of this proceeding in the context of s 596 of the Act. Both parties were legally represented, with permission being granted at the hearing, pursuant to s 596 of the Act, for Mr D O’Sullivan of Counsel to represent the applicant and Ms A DeBoos, Solicitor representing the respondent. The conduct of this case has plainly demonstrated (if that was ever necessary), my frequent observations after seventeen years on the Bench, concerning the efficient conduct of proceedings and the welcome assistance the Commission receives when matters are conducted by competent legal practitioners. This case was conducted dispassionately, efficiently and professionally. I am reminded of, and respectfully agree with, what Sir Anthony Mason, Chief Justice of Australia, said in his 1994 address, The State of the Judicature (1994) 68 ALJ 125 at 127:

‘But, the exclusion of lawyers neither enhances nor accelerates the course of justice. If my long experience of reading the transcripts of proceedings in the Industrial Relations Commission and its predecessor the Conciliation and Arbitration Commission has any lesson to offer, it is that the presentation of cases by non-lawyers does not lead to clarity and speedy hearings; on the contrary, it is more likely to lead to confusion and to long, drawn-out proceedings due to the failure of non-lawyers to identify the true issues clearly. No doubt lawyers are a nuisance – they habitually find unexpected defects in legislation and administrative and other decisions by those who exercise power. But that is no reason for excluding lawyers.’

[4] It would strongly contribute to the sound and efficient administration of justice if more contested proceedings were conducted in this fashion and I appreciate and congratulate Ms DeBoos and Mr O’Sullivan for their professionalism, common sense and for the respect shown to each other and to the witnesses in this case: See also: Law Council of Australia, Submission No 247 to Productivity Commission, Workplace Relations Framework public inquiry,27 March 2015, paras [22]-[37].

Preliminary findings

[5] In accordance with s 396 of the Act, the Commission is able to make the following preliminary findings:

(a) The applicant was dismissed at the initiative of the employer (s 385);
(b) The applicant is a national system employee and the respondent is a national system employer (ss 13, 14, 380);
(c) The applicant’s unfair dismissal application was lodged within the 21 day statutory time limit prescribed by s 394(2)(a) of the Act (s 396(a));
(d) The applicant had completed the minimum employment period of 6 months (ss 382(a), 383);
(e) The employment of the applicant was governed by the Agreement (s 382(b)(i)); and

(f) Neither of sub-sections (c) or (d) of s 396 the Act are relevant to this application.

[6] It follows that there is no dispute that the applicant was a person protected from unfair dismissal. Consequently, the only question which falls for determination by the Commission is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)) within the meaning of s 387 of the Act and, if so, what remedy, if any, should be awarded by the Commission, pursuant to s 390 of the Act. I shall return to these considerations later.

THE EVIDENCE

[7] The following persons gave written and/or oral evidence in the proceeding:

• The applicant;



• Mr Michael Potter, Training Delivery South for Pacific National; and



• Mr Robert Jarvis, Planning Manager NSW/Victoria for Pacific National.

[8] A number of the respondent’s policies and procedures, which were said to have been breached by the applicant, were referred to in the applicant’s termination of employment letter and the statements of Mr Potter and Mr Jarvis. These include the following:

• Asciano’s Health and Safety Policy;



• Asciano’s Code of Conduct;



• Shunting by Pacific National Staff;



• Rail Industry, Safety Notice (the ‘Prohibition Notice’) (Marked as ‘Annexure A’ to this decision);



• Pacific National Train Handling Standards;



• Pacific National’s Accreditation from the NSW Transport Regulator;



• Safe Work Responsibilities of Train Crew; and



• Pacific National’s No Smoking Policy.

NB: The Safe Working Responsibilities of Train Crew policy and the Pacific National Accreditation were not tendered in evidence.

[9] I extract below the relevant sections of the policies and procedures referred to above:

Asciano’s Health and Safety Policy:

‘Take all reasonable care for the health and safety of ourselves and others in the workplace.’

Code of Conduct:

‘Attend for duty fit and able to perform to safely perform your duties;

Comply with all Policies and Procedures specific to the division in which you work, as well as to the broader Asciano Grop, and to your role and in accordance with any instructions given to you by your supervisor from time to time;

Perform your work in a safe manner and in accordance with the procedures and standards relevant to Asciano so that you return Home Safely, Everyday; and

Immediately report any safety hazards or unsafe conditions appropriately.’

Shunting by Pacific National Staff:

‘Definitions

…

Shunting: involves train or wagon movements that are not directly concerned with a through train. Shunting ordinarily takes place during:

• Train marshalling;



• Wagon placement;



• Attaching or detaching wagons;



• Clearing or placing sidings;



• Splitting trains to perform repairs.

…

Note: Following the imposition of a Prohibition Notice, by the NSW Transport Regulator (ITSRR), banning the riding on rolling stock, Pacific National has introduced a nationwide prohibition on riding on:

• The footplate of locomotives (such as the 48 class and PL class locomotive).

…

General Rules for Shunting

Boarding or alighting from moving locomotives or wagons is PROHIBITED: Always wait for the movement to stop before you attempt to join or alight from the locomotive or from an approved wagon.

Riding on locomotive or wagon side steps is PROHIBITED:

Unless riding within a designated operating station or other enclosed space specifically designed and approved to protect person during the movement of rolling stock.

Note: Following the imposition of a Prohibition Notice, by the NSW Transport Regulator (ITSRR), banning the riding on rolling stock, Pacific National has introduced a nationwide ban on riding on:

The footplate of locomotives (such as the 48 class and PL class locomotive).’

Train Handling Standards:

‘4.0 Control of Train Speed

4.1 Speed control is the compliance with speed restrictions, either permanent or temporary, which have been established for many reasons, including operating, legal and technical considerations such as limitations of the equipment, track or structures. Permanent speed restrictions are usually listed in timetable footnotes. Temporary speed restrictions are applied because of track or bridge repairs, emergency situations such as flooding, equipment considerations, etc. and are generally imposed by the circular.

4.2 To exceed authorised speed limits increases the possibility of an accident, damage to loading and equipment and/or increased wear and damage to the track structure. Speeds, even slightly in excess of established limits, will cause train forces transmitted through the wagon body and wheels to the track structure to rise at a rapidly increasing rate. The resulting increased force levels can initiate rail rollover, gauge widening or wheel climb, particularly in curves.’

4.2.1 The standard 3 piece (3-P) X type bogie (without constant contact side bearers) is known to be dynamically unstable when operated at high speeds on empty wagons. The primary factor affecting this performance is wheel treads profile – wheels wear will decrease the hunting threshold from 100 kph (new wheels) to 70 kph for fully worn wheels. These bogies develop a motion called ‘hunting’ which increases exponentially with speed i.e.:

70 kph 1% of bogies are hunting
80 kph 5% of bogies are hunting
85 kph 20% of bogies are hunting
90 kph 60% of bogies are hunting

This motion can cause wheel climb (on the rails) and result in derailments.

4.3 A turnout should be recognised as a sharp curve in the same plane as the track from which it diverges. In as much as super elevation cannot be introduced into the outside rail (i.e. the track cannot be ‘banked’) to help compensate for the lateral forces, observance of the authorised speeds through, turnouts is of utmost importance.

4.4 The locomotive Driver must pre-plan brake and throttle handling so that speeds established by timetable or train order are not exceeded. Pre-planning is of particular importance when approaching curves, turnouts or restricted speed zones so that authorised speeds are not exceeded and in-train forces are minimised while traversing the restricted area.

Train crews should be made aware of the potentially serious consequences of over speeds.

4.5 To limit the instances of ‘overspends’ occurring, a systematic program of detection, recording, and analysis of overspend conditions should be implemented either through the utilisation of supervisory personnel, multi-event recorders, speed recording or indicating devices, or a combination of these.”

The applicant’s evidence

[10] On 22 November 2014, the applicant was requested to work an overtime shift the next day, driving a goods train from Parkes to Broken Hill and back. On 23 November 2014, he and Ms Mel Burton, a fully qualified Driver, drove the train to Broken Hill. It was not a training shift. They stayed overnight in Broken Hill and signed on for the return trip at 9.20am (9.50am (AEST)) on 24 November 2014. The scheduled running time between Broken Hill and Parkes without any delays, is 11 hours 5 minutes.

[11] Upon arrival at the depot, the train was not ready for departure. The applicant was concerned with the delay because it would be necessary for the train crew to be replaced if a shift extended beyond 12 hours. The train was scheduled to depart Parkes at 22.45 hours, preparation for which took 1.5 hours and the departure had already been delayed by that amount of time. There were no toilet breaks scheduled in the journey and there were no off train toilet facilities between Broken Hill and Parkes.

[12] It was usual for a relief crew to be rostered for the 700 km trip and the applicant contacted the Shift Manager to advise of the delayed departure and arrange a location for a relief shift to join the train. He was informed that a relief crew had been rostered. It was the applicant’s evidence that because he felt significant pressure to get the train back on time, he phoned the Line Operators Centre at Parramatta to advise of the circumstances and express concern that he may not get back in under 12 hours. He and Ms Burton finally left Broken Hill 1 hour 25 minutes later than scheduled.

[13] Into the journey, the applicant was advised of a ‘blackout’ location at Darnick, which caused a further delay of 20 minutes. The scheduled ‘cross’ with another train was to occur at Ivanhoe. After placing the train in the crossing loop at Ivanhoe, the applicant decided to walk the length of the train to inspect the wagons to ensure their safe working. He believed there was 90 minutes before the other train arrived. During this inspection, the applicant noticed a burning smell. He found the brake on the locomotive behind the lead locomotive stuck on and the brake shoes burnt out. He tried to release the brakes, but could not. He then spent 45-60 minutes speaking with locomotive maintenance of Downer EDI and eventually rectified the problem. He said that he was stressed and worried that he might not be able to get the train moving again. During this time, Ms Burton told the applicant she was going to the toilet. He observed her going into the on-board toilet while the train was stationary.

[14] After leaving Ivanhoe, the applicant asked Ms Burton if she would like to take control of the train. She declined and he did not pressure her to do so. Shortly after, the applicant noticed what he thought was smoke coming from behind the locomotive, as a result of the earlier brake problem. He stopped the train to inspect the locomotive at around 20.50 hours – after 11 hours on duty and about one hour from Parkes. As he found no defect and could smell no smoke, he concluded he must have seen dust. He was off the locomotive for around five minutes.

[15] When he got back into the Driver’s seat, he released the train’s brakes for departure. Ms Burton was in the Co-Driver’s seat. As he released the brakes, there was a lot of noise because of the usual noise of the brake valves. At this point, he observed Ms Burton pick up her cigarettes. She said words to the effect of, ‘I’m going for a pee’. The applicant said that in hindsight, and having assumed Ms Burton was using the on-board toilet, it would have been safer to reapply the brakes until she returned. He regrets not having done so.

[16] The applicant believed Ms Burton was intending to use the on-board toilet of the locomotive. The toilet had to be accessed by the external footplate for about a meter (with a handrail). The brake release process took about four minutes. The applicant expected that when she left the cabin the train would be moving at a ‘walking pace’, if at all. He assumed she was intending to smoke in the enclosed vestibule, as she had done so on several other occasions.

[17] It was the applicant’s evidence that in the ten years he had worked for the respondent, it was common practice for the crew to use the on-board toilet, while the train was in motion (including at full speed), because there were no scheduled toilet stops on the journey.

[18] Returning to the journey, the applicant said he allowed the train to get up to speed after about 5-7 minutes, expecting that Ms Burton would have returned by then. However, when he looked back, he could not see her. It was difficult to see, because it was now dark. The applicant decided to pull up as soon as he could safety do so at Yarrabandai. When he did so, he could not find Ms Burton and assumed she must have got off the train to go to the toilet. As her work and personal phones and radio were still on-board, he could not contact her. He rang the Shift Manager at Parkes to ask him to drive out and meet the train. He also rang the Line Operations Representative, Parkes Police and the Australian Rail Track Corporation (ARTC) Train Control to advise of the situation. When the Shift Manager arrived, they both drove along the roadway and found Ms Burton walking down the track, 1-2km away. She appeared calm and ‘a bit jovial´ and they had a conversation to the following effect:

Ms Burton:	I hopped off to go to the toilet. You went without me!
Applicant:	I thought you were using the on-board toilet.
Ms Burton:	I’m so sorry, I thought you knew I was getting off the loco.
Applicant:	It doesn’t matter, we’ve obviously had a miscommunication. I’m just glad you’re okay.

They both went back to Parkes by car, having handed over the train to the relief crew. The applicant signed off duty at 2315 hours.

[19] Three days later, the applicant was suspended on full pay pending the outcome of an investigation in respect to the incident. He attended two interviews with Management on 28 November and 15 December 2014. On 5 January 2015, he received a letter from Michael Potter, Training Delivery Specialist, seeking his response to the initial allegations against him. There were various exchanges between the applicant’s solicitor and Mr Chris Saunders, Training Manager. The applicant’s solicitor also attended a meeting on 24 February 2014 with Mr Bob Jarvis, Planning Manager, at which the applicant was informed of his dismissal.

[20] In his first statement, the applicant gave an explanation for exceeding the speed limit of 80km/h. He accepted he had also allowed Ms Burton to smoke on the train in breach of Pacific National Policy. However, he saw no point in reporting her, as there was a culture in Parkes of employees smoking (including Shift Managers) in non-smoking areas. Both of these matters were developed in the applicant’s reply statement and in oral evidence, which I will come to shortly.

[21] The applicant believed that, given the following matters, his dismissal was ‘harsh’:

• his unblemished record of 9½ years;



• his pride in his work and enjoyment of training other Drivers;



• his Co-Driver, Ms Burton, was not dismissed;



• other employees in Parkes involved in safety incidents, had not been dismissed. He provided a list of these examples;



• his significantly altered lifestyle due to reduced earnings in alternative employment as an Area Manager for Big Springs National Spring Water ($65,000, including superannuation).



• there was considerable strain on his marriage during this time;



• he had cancelled a family holiday because he had been worried about losing his job and his family (wife and two children, aged 2½ and 4½ respectively);



• he had acquired a mortgage based on his previous income with the respondent and was now forced to make mortgage repayments from savings; and



• plans for a third child were put on hold because of additional costs.

[22] Attached to the applicant’s statement were copies of photos of the 82 class locomotive showing the location of the vestibule door and the on-board toilet.

[23] In a reply statement, the applicant questioned the technical knowledge of Mr Potter, who he believed had only ever worked in the coal operations of Pacific National. He drew a distinction between the coal and the bulk rail sides of the business as follows:

‘…In the coal business, from my understanding:

a. Trains are always the same length configuration and weight;
b. Trains travel to and from the same locations;
c. Schedules never change;
d. Coal train crews … usually have crew relief sign on after 7 hours.

The bulk rail side of the Pacific National business, in which I have worked, is completely different:

a. Trains length, configuration and weight varies;
b. Trains travel to different locations;
c. Schedules frequently change (our scheduling was described as “ad hoc scheduling”);
d. Train crews are sometimes relieved, but only if approaching 12 hours on shift, but may work up to 16 hours if being transported in a car by a Driver.’

[24] The applicant described the work of Train Drivers working from the Parkes depot. They are required to know 6,000kms of track, five different safe working systems and drive fourteen different types of locomotives, (the majority being 48 class, which have a toilet in the cabin at the front of the train). Aside from the 82 class locomotive, the applicant believed the only other locomotive which has a toilet accessible only via the external footplate was the X-class, which had been banned by every depot, except Parkes. The applicant estimated that he had driven an 82 class locomotive three or four times and been a Co-Driver about eight times. He recalled only working the Broken Hill line about five or six times over ten years.

[25] The applicant had asked for copies of the data logger records, on a number of occasions, so as to confirm that he had been speeding (on Mr Potter’s evidence) on 855 occasions on the trip in question. His requests were initially declined (This allegation will be further explained later. However, the data logger records each instance of speeding every one second.).

[26] The applicant acknowledged that the train, ‘did get away from me’ on a couple of occasions, but he denied having deliberately caused it to exceed the speed limit. In addition, he noted that his Co-Driver had a digital speedometer directly in front of her and, at no time, during the journey had she mentioned or alerted him to the fact that the train was exceeding the speed limit. The applicant further explained that while the track is relatively flat, you drive the train ‘by feel’ and experience.

[27] The applicant stated that after he realised Ms Burton was not on board, he took about six minutes to slow the train and stop in a safe place clear of the loop and near the road so they could be collected by someone from the Parkes Depot. He noted that from the data logger report, it took 3 minutes, 16 seconds for the train to start moving, after he released the brake pipe pressure. He believed that Ms Burton would have returned in that time, without the train yet moving. As Ms Burton had alighted from the train, it was now clear that she had never actually been on the footplate, while the train was in motion. It later came to the applicant’s attention that on 24 November 2014, the train’s brake cylinder warning light was not working.

[28] In cross examination, the applicant agreed that as a Driver Trainer, he was a senior Driver with a high level of responsibility, particularly in respect to safety. He was also required to have high level knowledge of all standard policies, licensing and regulatory requirements and be able to demonstrate this knowledge and experience to other Drivers.

[29] The applicant further acknowledged that he had been relieved in the past when the twelve hour shift limit had been reached and the train stopped and the crew relieved, although he could not say if it was a common occurrence. In these circumstances, he would take steps to advise the Shift Manager and the Live Operations Centre, as he did on 24 November 2014. He conceded that no one had told him to drive for over twelve hours or that he could not be relieved. In fact, he and Ms Burton were relieved on that day. No one, to his knowledge, had been disciplined for requiring a relief crew.

[30] The applicant denied he was speeding on the trip because he wanted to make up time for the delays, both before the train left Broken Hill and during the trip. He acknowledged that the speed limit on the journey was 80 km/h, that exceeding the speed limit increases the risk of derailment and it is a serious issue. However, he reiterated that he did not deliberately cause the train to exceed the speed limit. He accepted that the data logger records indicate that he increased speed when he was already speeding. He said there may have been distracting reasons why he had done so – he may have been keeping the train at ‘stress’ position, eating a meal or talking to the Co-Driver. Nevertheless, he accepted that distractions were no excuse for speeding. The applicant now accepted that the data logger records accurately reflect the locomotive’s activities that day. He explained that when he said the train may have ‘got away from him’ a few times, he had meant it sped up, without him noticing. This might happen due to the track topography.

[31] The applicant said he was unaware that there was a licensing requirement on that particular line for two Drivers to be seated in the cabin at all times. The second Driver is an observer, but they may swap duties, if the Co-Driver is fully qualified.

[32] It was the applicant’s evidence that he had used the throttle to increase the speed when he was already speeding. This required a deliberate action by the Driver. The applicant explained the action and effect of releasing the brake on the brake pressure. He was closely questioned as to what occurred when he had stopped the train to inspect the locomotive. The inspection took from 19.48 to 19.50.46, when he had returned to the cabin and released the brake. Ms Burton then got up and said she was ‘going for a pee’. The applicant denied that she had said ‘I need to go to the toilet, don’t leave without me.’

[33] The applicant explained that when the brake is released, it produces a loud hissing noise. At 19.52.9, the train started to move and the throttle was engaged at Watch 1 – the lowest. Eleven seconds later, the train was moving at 11km/h. The applicant believed Ms Burton had gone to the toilet on the train, although it would have taken only 90 seconds before the train started moving. He accepted that she would not be back in her seat in that short space of time.

[34] The applicant said he first became worried about Ms Burton when he applied the brake at 20.00.28. He brought the train to a standstill at 20.06.10 after travelling 11.14 kms. The applicant was concerned that Ms Burton had got off the locomotive to go to the toilet.

[35] In further questioning, the applicant agreed that it was extremely dangerous to ride on the footplate outside the cabin, while the train was in motion. However, he was not aware of a specific policy or procedure prohibiting this practice, except in relation to shunting. He was unaware of a prohibition notice about this practice issued by the safety regulator, and was not aware of its contents. Nevertheless, he accepted that Ms Burton would have had to go onto the footplate at a time when he had put the train into motion. He agreed that in hindsight, he should have reapplied the brake when Ms Burton said she was going to the toilet. He denied he had not done so because the train was already late and he would be late home.

[36] Returning to the prohibition notice, the applicant said while there was a prohibition of riding on footplates at low speeds, it did not necessarily follow that it would also apply at higher speeds (although he agreed that this was logical). This was because shunting was inherently dangerous, with people on the ground where wagons are close together and being moved. He believed the prohibition notice arose from someone being killed during shunting.

[37] The applicant gave further evidence about the application of brake pressure. It is necessary to reduce the pressure to avoid burning out the brake shaft. He reiterated that it was very difficult to detect variations in brake pressure of anything less than 25kPa. He believed that on the journey that day there was actually a problem with the system. He had been told of this by EDI Downer.

[38] The applicant acknowledged that in the investigation meeting on 24 November 2014, he did not concede that he had done anything wrong; he denied deliberately speeding and had sought further evidence; he denied breaching procedures in leaving Ms Burton behind and had made no concessions at all during the investigatory interviews.

[39] In re-examination, the applicant said that while he held a senior Driver role, it involved no supervision of other Drivers, nor could he direct other drivers in their duties.

[40] He believed that he was proactive in respect to following all safety procedures on the day in question. He described the process of ‘stretching’ the train, which involves ensuring that the trailing tonnage does not ‘hit up’ against the locomotives with a tremendous force.

[41] During the applicant’s re-examination, photos were tendered of the panels directly in front of the Driver and Co-Driver of the 82 class locomotive. The applicant explained the functions and roles of each of the screens, dials controls and gauges on the panel. The applicant repeated that, at no time, had Ms Burton mentioned that the train was speeding, despite having a speedometer directly in front of her. He would have expected her to say something. He said he was a bit more vigilant on the trip because the train was twice as long as normal. He regularly looked in the mirrors for smoke and dust behind the locomotive.

[42] The applicant gave two examples of when he had experienced only one Driver in the cabin – when the Co-Driver was smoking in the vestibule directly behind the cabin and during shunting on the main line.

[43] The applicant said that he had made the decision to stop the train at Yarrabandai, after about five minutes after realising that Ms Burton might be in trouble. It was a safe working location with road access. In any event, it takes several minutes to bring a 600m long train to a full stop.

[44] In respect to the Pacific National Shunting Policy, the applicant believed that it did not have any application to the movement of the train on 24 November 2014. He further said he was unaware of any connection between the prohibition notice and accessing the on-board toilet, while the train was in motion.

[45] The applicant explained that if he was reinstated, he would ensure he was more vigilant while driving and ensure relief was organised when there was a likelihood of a trip reaching the twelve hour shift limit.

[46] The applicant said he obtained alternative employment about 2-3 weeks after his dismissal. However, he was being paid about half what he had earned when employed by the respondent.

Mr Michael Potter

[47] Mr Potter is responsible for leading a team of 19 Drivers in the Southern Region of New South Wales, which includes Parkes and Sydney. He was only appointed to his current role in November 2014 and had never met the applicant. Mr Potter has been involved in several incident investigations.

[48] In December 2014, Mr Potter was asked to review the data logger from the 82 Class locomotive, driven by the applicant on 24 November 2014, in order to assist in the investigation of the incident. The data logger records a number of variables, including time, speed, distance, brake applications, whether the locomotive is powering, whether it is in dynamic brake and whether there is pressure in the brake cylinders.

[49] Mr Potter explained that the data logger can be analysed in two ways. Firstly, by manually reviewing the data and analysing the information and providing a report. The data logger records:

(a) Into short log every one second when the locomotive is deemed to be moving;
(b) Into long log every 30 seconds whilst the locomotive is deemed to be moving;
(c) in the event of any of the following occurring since the last recording:

(i) a 12km/h variation in speed;
(ii) a 50kPa variation in brake pipe pressure; and/or
(iii) a change of state of any digital input other than vigilance control acknowledgement.

[50] Secondly, by using a data reading program called Winlogs, it is possible to analyse the data on a computer to produce graphs and charts based on the variable being investigated. Mr Potter used both methods and identified four main issues with how the applicant operated the train on the night of 24 November 2014:

(a) speeding;
(b) increasing power while already speeding;
(c) failing to make the correct brake application; and
(d) the distance travelled without the Co-Driver.

Speeding

[51] Speed limits are set by the Australian Rail Track Corporation (ARTC) and must be adhered to by all train Drivers. In this case, the maximum speed for Locomotive 8250 is 80km/h. Mr Potter believed the applicant would have been well aware of this limit. as he is a trainer on this topic. It was Mr Potter’s evidence that after reviewing the data logger records, the applicant had travelled over 80km/h on 855 occasions, reaching speeds of 98km/h.

[52] Mr Potter said that Drivers are never told to speed to meet schedules, as speeding is taken very seriously by Pacific National. Instances of speeding can be discovered in two ways – by random audits and from information reported by personnel working on the tracks.

[53] Mr Potter said that most common action taken against a Driver found to be speeding a few km/h above the limit, would be to call the Driver in to discuss the matter and then conduct random audits going forward. Mr Potter has conducted around 100 of these audits. Usually, they involve minor infringements, such as travelling 2-3km/h above the limit. This may arise from a Driver mismanaging the train through dips or increments. In this case, Mr Potter said he believed the applicant had deliberately and consciously exceeded the 80km/h limit, on numerous occasions, up to 98km/h. He had not seen a case like this before.

Increasing power while already speeding

[54] Mr Potter described the throttle and the means of increasing and decreasing power. The data logger disclosed the throttle was increased by the applicant, on numerous occasions, while he was already speeding that night.

Failing to make the correct brake application

[55] Mr Potter said that the train the applicant was operating had two locomotives – a lead locomotive and a trailing locomotive. Mr Potter was informed that the trailing locomotive had ‘sticky’ brakes, which he attributed to a failure to make a correct brake application. This was something very well known to Drivers.

Distance travelled without Co-Driver

[56] From reviewing the data logger, Mr Potter was able to conclude that from the time Ms Burton got off the train, until it came to a stop, the train had travelled 11kms, over 14 minutes.

[57] Although Mr Potter had firmly believed the data logger information was correct and very accurate, he had the wheel diameters measured and the data logger recalibrated accordingly. He had also cross-referenced the data logger information with GPS tracking. This confirmed the data logger information.

[58] While Mr Potter was not involved in the decision to terminate the applicant’s employment, he stated ‘it is clear to me he violated a number of safety procedures. I view this behaviour to be very serious and not the type of behaviour we want to see from a Driver Trainer.’

[59] Mr Potter responded specifically to aspects of the applicant’s evidence as follows:

(a) He did not know what the applicant meant by ‘pressure’ (to be on schedule). The message is very clear that the rules are not to be breached. Management understands that late running trains are often beyond a Driver’s control and, to his knowledge, no-one had ever been dismissed for running behind schedule.
(b) All Drivers are aware that riding on locomotives or wagons outside of designated operating areas, while the train is in motion, is strictly prohibited and is a clear breach of the prohibition notice which has been in place for many years.
(c) Because of the above prohibition, you cannot go to the toilet on the 82 Class locomotive, while the train is moving. This is a broad prohibition, which obviously includes travelling, on or accessing the toilet, by means of the footplate.
(d) As the train had travelled 11.14km before stopping, he could not see how Ms Burton would have been found walking down the road, 1-2km away.
(e) Mr Potter did not accept that the applicant did not deliberately speed, given the numerous occasions it was logged, including increasing the speed while already speeding. No attempts were made to slow the train down. Speeding could not have been related to gradients on the line, as the Broken Hill to Parkes line is predominantly flat. In any event, an experienced Driver should easily be able to manage the speed within the track limitations.
(f) Mr Potter would have expected a ‘few mismanagements’, but the multiple instances recorded of speeding over prolonged periods was unacceptable.
(g) While Drivers are told to drive defensively, in most cases they are able to meet schedules by running a few km/h below the set limits.

[60] In cross examination, Mr Potter acknowledged that he had never driven a train on the Parkes to Broken Hill line. He agreed an 82 Class locomotive can travel up to 115km/h, but on the line to Broken Hill, a train with wagons had a speed limit of 80km/h. Mr O’Sullivan showed Mr Potter the photos of the Driver control panel and ‘walked’ him through each of the dials, gauges, monitors, lights, etc. Mr Potter agreed that a Driver would be expected to monitor all of the gauges and check the side mirrors for dust or smoke behind the locomotive.

[61] Mr Potter agreed that the Co-Driver has a speed indicator directly in front of them and is required to alert the Driver of any excessive speeds. He was unaware if Ms Burton had raised the speed issue with the applicant on the night in question.

[62] Mr Potter confirmed that while it was possible to analyse any of the journeys undertaken by the applicant, he was not asked to review any other of his journeys to ascertain whether he may have been speeding on other occasions. Mr Potter said that of the 100 or so audits he had undertaken, none of them had involved the Parkes to Broken Hill line.

[63] Mr Potter agreed that train speeds vary according to a range of factors, including the length of the train, loads, terrain, people working close to the tracks, etc. Even so, he would only expect minor speed variations for a loaded train of 600m length, travelling on relatively flat terrain. Small variations (slackness) can occur between the wagons and the locomotive itself (‘buff and draft forces’). Drivers are trained to handle these variations through manipulating the acceleration or speed of the train. Mr Potter accepted that there may be undulations on the Parkes to Broken Hill line, but this was very common throughout the network.

[64] As to the prohibition notice, Mr Potter acknowledged that the notice related to shunting and the respondent’s policy defines shunting as not covering movements that are directly concerned with a ‘through’ train. As a result, Mr Potter agreed with the following proposition, when it was put to him:

‘[G]iven your understanding of what had happened on the night in question, [you would agree] that this policy did not apply to what happened in November 2014 when Mr White was operating the Class 82 locomotive from Broken Hill to Parkes?’

[65] Mr Potter also agreed that there was no policy covering in-cab communications between Drivers and Co-Drivers in respect to the 82 Class locomotive, or generally. While Mr Potter claimed there was a rule that prohibited a Driver being outside the cabin while the train is in motion, he could not identify where this rule could be found.

[66] Importantly, Mr Potter accepted a proposition that the noise of the brake release was such that Ms Burton would have been well aware that the brake had been released and she should not have left the train in such circumstances. It would also have been a ‘good idea’ that she take some form of portable communication with her (which she did not). As there is no policy or procedure on this point, Mr Potter agreed it would be a good idea to have a safe working policy on this subject.

[67] Mr Potter said it was possible, given all the known factors on the night, that the applicant was unaware of the actual speed the train was travelling at all times.

[68] In re-examination, Mr Potter gave more detailed information as to his history of driving trains for Pacific National for over ten years and earlier. In respect to the Parkes to Broken Hill line, all Drivers have access to curve and gradient diagrams. He had, in fact, driven to Broken Hill, on several occasions, prior to commencing employment with Pacific National.

[69] Mr Potter developed his earlier evidence of the issues a Driver is required to be aware of at all times, which is just a normal part of a Driver’s duties. As to the small variations in speed caused by ‘slackness’, Mr Potter said that this would not result in a sudden spike in speed, which he could not identify from the data logger.

[70] Mr Potter reiterated that no person is permitted to ride outside a designated area of the train. He knew of only one particular circumstance on a specific locomotive (NR Class) where crew were allowed to ride on the steps in a specifically designated area. He was unsure if this was still permitted.

[71] Mr Potter said that there was an onus on the train crew to communicate with each other at all times. Clarifying his earlier evidence, Mr Potter said that from his experience, a Driver would know that he was travelling at 98km/h when the speed limit was 80km/h.

Mr Robert Jarvis

[72] Mr Jarvis has worked for Pacific National (and its predecessors) in various capacities for over 31 years, although he has never performed any duties as a Train Driver. Mr Jarvis identified the applicant’s work history, qualifications and training. Driver Trainers are expected to be highly competent Drivers who must demonstrate correct safety and train-handling skills. While they do not perform training all the time, they are required to drive trains while still providing an example to other Drivers.

[73] Mr Jarvis described the highly regulated safety environment in which Pacific National operates. Safety is paramount and is central to every decision Pacific National makes. The Company is audited externally and internally to ensure compliance with the regulatory framework and accreditation. All Drivers know their obligations and responsibilities in respect to safety, particularly the Driver Trainers.

[74] Mr Jarvis described his understanding of the incident on 24 November 2014 and the disciplinary investigation which followed. It included two interviews with the applicant (28 November and 15 December 2014). The disciplinary investigation was conducted by Mr Tony Halman, Bulk Regional Operations Manager. It involved Mr Potter analysing the data logger records. Mr Halman’s investigation report was finalised on 6 January 2015 and approved by the General Manager New South Wales/Victoria on 30 January 2015.

[75] Mr Jarvis became directly involved in the matter after the completion of the investigation report. On 5 January 2015, the applicant was notified of the allegations made against him and invited to respond by 8 January 2015. On 12 January 2015, the applicant’s solicitor sought further information, particularly in respect to the data logger and its calibration. Pacific National declined to provide the information at that stage. A show cause letter was hand delivered to the applicant on 2 February 2015. The applicant’s solicitor responded on 6 February 2015.

[76] On 10 February 2015, Mr Jarvis met with Mr Chris Saunders, Training Manager and Mr Robert King, Human Resources Business Partner to review all of the material and consider any appropriate disciplinary action. Mr Jarvis said he had carefully considered all the circumstances. He had no preconceived outcome. At this meeting, there was a vigorous discussion of the options available. Further meetings were held to discuss the matter and Mr Jarvis made, with Mr Saunders’ and Mr King’s endorsement, a decision to terminate the applicant’s employment on the following basis:

(a) the applicant’s behaviour breached the Code of Conduct;
(b) the applicant’s behaviour demonstrated a reckless violation of a number of Pacific National’s policies and procedures, as outlined below, which individually and collectively demonstrated a lack of a general commitment to work safety;
(c) as a Driver Trainer, being a position of trust and responsibility, the applicant took no action in relation to the multiple serious safety breaches which took place during the journey on 24 November 2014 and in his responses to the allegations put to him, failed to take any responsibility or acknowledge any wrongdoing in relation to the incident;
(d) Mr Jarvis concluded that the applicant did not understand his basic responsibility to work safely as a Driver. Further, he demonstrated that he did not understand the obligations of a Driver Trainer to educate others to work safely.
(e) Mr Jarvis had serious concerns that, if the applicant was to continue as a Driver or a Driver Trainer, there was a high risk that he would repeat this unacceptable and unsafe behaviour; and
(f) the nature of the allegations were very serious and, given their seriousness, the applicant’s lack of a previous disciplinary history did not mitigate against his dismissal.

[77] The termination decision was reviewed and confirmed by the HR Team and then reviewed and confirmed by Mr Steven Cowan, General Manger New South Wales/Victoria and Ms Simone Hartley, General Manager Human Resources.

[78] In explaining his decision, Mr Jarvis said that there were two primary allegations proved against the applicant which were serious safety breaches – leaving Ms Burton behind and speeding. He dealt with each of the allegations as follows.

Leaving Ms Burton behind

[79] Mr Jarvis believed that this incident revealed a severe lack of communication between the applicant and Ms Burton. Crew communication is essential to the Driver’s role. The applicant did not know where Ms Burton was, and had made assumptions about what she was doing, and where she was going.

[80] Secondly, the incident revealed a blatant disregard for Pacific National’s policy in relation to a prohibition on persons walking on the footplate while a train is in motion. Even if the applicant believed Ms Burton was going to the toilet on the train, he still caused the train to move. Mr Jarvis referred to the Prohibition Notice issued by Office of the National Rail Safety Regulator (ONRSR) banning riding on rolling stock (Annexure A) and Pacific National’s Procedure ‘Shunting by Pacific National Staff 006.R05’, which prohibits riding on footplates while the train is in motion. He said the applicant had breached both of these documents.

[81] Mr Jarvis agreed Pacific National does not have a documented procedure which deals with employees using the toilet while on duty. He agreed there are routes where no break is scheduled. However, he understood most employees use the toilet when the train pulls up in a cross loop or if it is urgent, the train crew stops the train (although this is not common). Mr Jarvis was not aware of, and had never heard of any person going onto the footplate to use the toilet while the train is moving.

[82] Thirdly, the applicant had no clear understanding of what Ms Burton was doing before powering up the train. He travelled 11kms before bringing the train to a stop. It would have been very hard for him to see the vestibule from the cab and once she closed the door, he could not have known where she was, or where she had gone.

[83] Mr Jarvis said that the applicant had an obligation to ensure his own and Ms Burton’s safety and had failed to ensure his Co-Driver’s safety. This was a significant breach of the respondent’s Health and Safety Policy and Code of Conduct.

Speeding

[84] Mr Jarvis considered this allegation to be a very significant breach of safety. He said that exceeding speed limits increases the risk of an incident, including derailment, increased the risk of damage to equipment and increased wear and damage to the track. In his experience, most speeding incidents are reported by track workers. In other cases, random audits may disclose instances of speeding. In this case, Mr Potter’s analysis of the data logger revealed 885 instances of speeding during the journey, including increasing the speed while already speeding.

[85] Mr Jarvis said that while Pacific National permits a tolerance of 5% because of wheel wear and terrain, he noted that the applicant’s maximum speed was recorded at 98km/h. He concluded that this behaviour was both deliberate and inexcusable. He was in breach of the Train Handling Standards, Pacific National’s accreditation, the ARTC’s standards, the Health and Safety Policy and the Code of Conduct.

[86] Mr Jarvis said that another employee was dismissed on 14 January 2015 for speeding throughout a journey in Victoria. While Pacific National was focused on improving on-time performance and meeting customer expectations, it recognised that there are variables, including those outside of the Driver’s control, which impact on ‘on-time’ running. Mr Jarvis believed that, at no time had Pacific National compromised safety to ensure ‘on-time’ running. No employee has ever been disciplined for running behind schedule and arrangements can be made for a relief crew where a shift length is to be exceeded. Mr Jarvis said that there was no reason for any employee to feel pressured to ‘stick to a timetable’, as it is made clear that operations can stop if employees have any safety concerns.

[87] It was Mr Jarvis’ evidence that the other two issues of the applicant failing to make a correct brake application and allowing Ms Burton to smoke in the vestibule of the train (contrary to policy) were not factors he considered as greatly impacting on his decision to terminate the applicant’s employment. However, Mr Jarvis had been concerned with the applicant’s defensive response to these allegations and his refusal to acknowledge any role in the incident.

[88] Mr Jarvis claimed that ‘we’ had considered two disciplinary options; regression or termination of employment. Regression to a maximum of twelve months was rejected for the following reasons:

(a) The applicant gave no indication that he was willing to change his behaviour. He did not accept responsibility for, or acknowledge the role his behaviour played in the incident;
(b) The respondent could not be satisfied that the applicant’s behaviour would be addressed;
(c) The applicant would be operating as a Driver in a rural area with limited supervision;
(d) Regardless of the length of the regression, the applicant would still be required to operate a train - the task he was performing when the incident occurred;
(e) The respondent could not see a way that the company could put adequate measures in place for the applicant to perform the role of Driver safely and without risk; and
(f) The respondent did not have confidence in the applicant’s ability to exercise his job safely.

[89] This left termination of employment as the only option. Mr Jarvis had considered the applicant’s 9½ years of service, without any disciplinary action being taken against him. However, he concluded that this did not sufficiently mitigate against the seriousness of the allegations.

[90] While Mr Jarvis was not directly involved in the disciplinary action against Ms Burton, he understood she had been stood down and later returned to work on restricted duties, pending the outcome of an investigation. On 22 January 2015, she received two written warnings and a reduction in Classification to Level 2 Trainee Driver for six months. She was also placed on a performance improvement plan (PIP), but did not undertake it, as she did not return to work after receiving the warning letters. She resigned on 8 April 2015.

[91] Mr Jarvis responded to the applicant’s evidence as follows:

(a) While the applicant was correct that there were no toilet breaks scheduled in the journey that day, there were opportunities to use the toilet while the train was stopped and while other trains ‘crossed’ over;
(b) while no relief crew was rostered that day, it would have been, if required (and subsequently was). This occurs, regardless of whether the crew is rostered or not and the first shift exceeds twelve hours;
(c) he was unaware of any direction to the applicant to get the train ‘on-time’. Not all trains run ‘on-time’ and only 70% in the bulk area do so;
(d) Train crew must not, at any time, and regardless of the speed of the train, ride on the footplate while the train is in motion;
(e) Mr Jarvis was unaware of any common practice of train crew using the toilet while the train is moving. The issue is not using the toilet, but accessing the footplate outside the cabin;
(f) At no time, during the investigation, did the applicant express any remorse or regret for his involvement in the incident;
(g) Mr Jarvis had obtained information relevant to each of the other incidents the applicant had identified and where the employee was not dismissed. In some cases, the incident was not the fault of the Driver, or the Driver had been disciplined through formal warnings; and

(h) Mr Jarvis remained concerned that the applicant continued to deny, or take any responsibility for his actions.

[92] In further evidence in chief, Mr Jarvis explained that all Drivers would be aware of the respondent’s regulatory and accreditation framework, through internal training every two to three years, or as needed when legislation, policy or regulations changed. Mr Jarvis also said that because the Parramatta Management Centre monitors train movements across the network, it would have been aware of the late departure from Broken Hill and planned alternative crewing arrangements.

[93] In cross examination, Mr Jarvis said that he had made the decision to terminate the applicant’s employment having considered the investigation report, the applicant’s response to the show cause letter, the records of interview and the applicant’s employment history.

[94] In dealing with the applicant leaving Ms Burton behind, Mr Jarvis said there had been no clear understanding between them, as to what Ms Burton was intending to do. He added that she should not have left the train, without telling the applicant. He accepted that it was illogical for the applicant to assume that Ms Burton would alight from a moving train or that she would do so having heard the noise from the release of the brake. Mr Jarvis agreed that the only logical conclusion (and the one the applicant formed) would have been that Ms Burton was going to the toilet on the train. He believed the fault for non-communication rested with both parties, but agreed it primarily was Ms Burton’s fault.

[95] In answer to a question from me, Mr Jarvis understood that there was a conflict in the evidence as to what Ms Burton said she told the applicant and what he said she told him; that is, ‘I’m going to the toilet’, or ‘I’m going to the toilet, don’t leave without me’. Mr Jarvis agreed that he accepted Ms Burton’s version, but he had never actually spoken to her.

[96] In further cross examination, Mr Jarvis could not say whether the applicant had been shown the prohibition notice. Mr Jarvis explained that once such a notice is received, the employer may be required to change, or introduce a policy to reflect the prohibition’s conditions. This was done after the this notice was issued. Mr Jarvis agreed that this policy deals with shunting and it did not apply to the applicant’s operation of the train that night.

[97] In respect to leaving Ms Burton behind, Mr Jarvis claimed that this act was in breach of the network rules and the respondent’s accreditation to operate the train with a two person crew. At the time he considered this matter, he did not consider the applicant had purposely operated the train by himself. Mr Jarvis conceded the applicant could not have been in deliberate or conscious breach of the rules, because he had not known that Ms Burton had left the train. Mr Jarvis conceded that had it been known, at the time, that it was common practice at the Parkes Depot to use the toilet while the train was in motion, this would have been taken into consideration (in respect to the termination of employment).

[98] As to speeding, Mr Jarvis reiterated that the applicant must have been fully aware that the train was speeding. However, Mr Jarvis had understood that one of Ms Burton’s duties was to inform the applicant the train was speeding, but she did not do so. Mr Jarvis had not considered whether the applicant knew he was speeding that night, notwithstanding he had consistently said he had been unaware he was doing so. However, the conclusion he came to from the data logger was that the train was already speeding when the applicant increased the speed. There was no fault with the speedometer and the applicant must have known he was speeding.

[99] Mr Jarvis acknowledged he had never driven the Parkes to Broken Hill line. He understood that in respect to the factors involved in handling a train, the undulating environment is a factor, as is the requirement to monitor all the panel instruments, check the side mirrors and communicate with the Co-Driver. Mr Jarvis acknowledged that the outcome may have been different if it was accepted that the applicant was not purposely operating the train in excess of 80km/h.

[100] In answer to questions from me, Mr Jarvis said that the applicant had no history of speeding, and no other performance issues. Mr Jarvis said that the employer did not examine other routes or times the applicant had driven to find out if he had any history of speeding which had not been reported.

[101] In re-examination, it was Mr Jarvis’ evidence that there was a ‘general understanding’ from the shunting procedure and the prohibition notice, that persons are not to ride on the footplate, even when the locomotive is in motion. He added that it was not practical to have a policy or procedure to cover every circumstance. He equated this to a common understanding that seatbelts must be worn while cars are in motion.

[102] Mr Jarvis explained that Driver Trainers have a different reporting line, because training is part of the planning structure and he looks after technical training for the business.

[103] Mr Jarvis said that the issue of not knowing where Ms Burton was, related to the requirements for a two person crew and to the safety issue that something might have happened to Ms Burton. He said there were only three places she could have been when not in the cabin – on the footplate, in the toilet or off the train.

[104] Mr Jarvis believed that the applicant’s role as a Driver Trainer was subject to higher expectations than a normal Driver, particularly in respect to safety. Pacific National concluded that it could not be satisfied that the applicant should be operating trains, given the severity of the incident, the applicant’s responses and his rejection of any responsibility for what had occurred.

SUBMISSIONS

[105] Both parties provided helpful and comprehensive written submissions which were supplemented orally on 29 July 2015.

For the applicant

[106] The applicant’s outline of submissions addressed the three principal allegations made against the applicant; (1) the incident at Yarrabandai (leaving Ms Burton behind); (2) speeding; and (3) allowing Ms Burton to smoke on the train.

Leaving Ms Burton behind

[107] It was said that as there was no scheduled toilet or meal breaks in the eleven hour, five minute trip, it would seem that Pacific National expected the crew to use the on-board toilet, either while the train is in motion or during unscheduled stops, such as waiting for another train to ‘cross’ over. The applicant’s evidence was that it was a common practice among employees at Parkes to use the toilet, while the train is in motion, and he had, in fact, been told to do so when he first trained as a Driver. In addition, he had observed Ms Burton enter the on-board toilet earlier during the journey. When he heard her say, ‘I’m going for a pee’, he assumed she was using the on-board toilet. He also believed that by the time Ms Burton returned, the train would either not be moving or at most, moving at a walking pace.

[108] The submissions highlighted that the applicant was remorseful for allowing the train to move when he released the brakes. He accepted that this was not conducive to workplace safety, nor was Ms Burton leaving the train (although at that point he did not know that she had).

[109] In further written submissions, Mr O’Sullivan noted that the respondent raised three major issues, being poor communications, driving the train when someone could have been on the footplate and powering the train, without knowing where Ms Burton was.

[110] As to poor communication, Counsel relied on the applicant’s evidence that it was after he released the brakes, that Ms Burton that told him that she was going to the toilet. Because of the noise created by releasing the brakes, it was logical for him to assume she was using the on-board toilet. She left the train, without informing him, and with the knowledge that the train was about to start moving. Counsel observed that there was no policy applying to on-board communications and the fault rested with Ms Burton for alighting from the train, knowing it was about to move and without informing the applicant.

[111] In respect to the footplate access, Counsel noted that the breach of policy relied upon by the respondent was ‘Shunting by Pacific National Staff’. This policy does not apply to the circumstances of that night, because shunting does not involve a ‘through train’ and applies only to ‘shunting’. Both Mr Jarvis and Mr Potter conceded this to be the case.

[112] Furthermore, the applicant was not aware of any prohibition on the utilisation of the footplate, while the train is in motion. This was consistent with the information provided to him and to the ‘common practice’.

[113] In respect to the applicant moving the train without two Drivers on-board, the Commission would be satisfied that the applicant believed Ms Burton was on-board and any transgression by him of the two crew policy, was not wilful. As soon as the applicant realised Ms Burton was not on-board, he took immediate steps to bring the train to a safe stop.

Speeding

[114] It was submitted that the applicant felt pressured to bring the train in ‘on-time’ after its 1 hour, 25 minute delay in leaving Broken Hill. He did not deliberately cause the train to speed (It was noted that the applicant was not provided with the data logger information at the time he prepared his statement on 11 May 2015).

[115] The applicant conceded that the train may have ‘got away from him’ on a few occasions. Counsel put that the Commission should take into account that:

• he was never warned by Ms Burton that he was speeding;



• he was distracted due to checking smoke from the wagons;



• the number of dials and gauges that must be observed; and



• there was a safety need to keep the train ‘stretched’.



• the evidence of Mr Potter was that it was possible that the applicant was not aware he was speeding.

Smoking

[116] The only person who was smoking was Ms Burton. The applicant had no supervisory oversight of her and could not direct her in her duties. There is no policy requiring an employee to report on another employee and when the applicant had, in fact, done so on a previous occasion, nothing was done because the Parkes Depot employees, including managers, frequently smoke in non-smoking areas.

[117] The written submissions referred to the meaning of ‘harsh, unjust and unreasonable’ in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’). It was put that the consequences for the applicant’s dismissal were unduly ‘harsh’ given the following circumstances:

• His 9½ years of unblemished service;



• The incident involved a miscommunication;



• Acknowledgement that it was a poor decision for the applicant to allow the train to move while the Co-Driver would need to access the external footplate;



• The applicant had mitigated his loss, but his new employment only remunerated him about half of his previous remuneration;



• The stress on his marriage, family and financial circumstances; and



• The unequal treatment for the breaches, in that Ms Burton was not dismissed.

[118] Counsel submitted that in order to be satisfied that there was a valid reason for dismissal; (See: Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’), the Commission would need to be satisfied that:

(i) the applicant’s actions in leaving Ms Burton behind and speeding, did in fact constitute a breach of policy (however described);
(ii) the breach(es) were substantial;
(iii) the applicant was aware of the requirements of the relevant policy; and
(iv) the breach(es) were undertaken wilfully, i.e. that the applicant deliberately breached the policy.

[119] Counsel submitted that the Commission could not be satisfied that the applicant’s actions, in relation to leaving Ms Burton behind, constituted a breach of any policy. To the extent that there was a breach of the Train Handling Standards in relation to speeding, the Commission should be satisfied that it was not substantial. Moreover, the applicant did not set out to wilfully breach this policy.

[120] The written submissions took no issue with the procedural matters required to be taken into account in sub-sections (b) to (e) of s 387 of the Act. Sub-sections (f) and (g) were described as neutral. Mr O’Sullivan further submitted that even if there was a valid reason for dismissal, the dismissal may still be unfair; See: B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 (‘Australia Post’) at paras [41] and [42]. In applying these principles, the Commission would find that the applicant’s dismissal was still ‘harsh, unjust and unreasonable’. The applicant sought reinstatement. He denied that reinstatement would be inappropriate because of a breakdown in trust and confidence; See: Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 (‘Nguyen’)

[121] Mr O’Sullivan put that the respondent no more than asserts that the applicant was defensive in his responses and that the respondent could not be certain that his behaviour would change. These assertions ignore the applicant’s otherwise exemplary record and were premised on an incorrect belief that he had deliberately breached a number of Pacific National’s policies. Counsel submitted that the respondent had failed to meet its evidentiary onus that reinstatement is impracticable and a reinstatement order, with ancillary orders for lost remuneration and continuity of service, should be made. Alternatively, the maximum amount of compensation should be ordered.

[122] In oral submissions, Mr O’Sullivan reiterated that there were four issues the Commission should be satisfied of, before finding there was a valid reason for the applicant’s dismissal.

1. Did the two matters of leaving Ms Burton behind and speeding constitute a breach of the respondent’s policies?
2. Were the two matters substantial breaches?
3. Was the applicant aware of the policies he was said to have breached?
4. Were the breaches undertaken wilfully?

[123] In respect to the first issue, Mr O’Sullivan relied on the concessions made by Mr Jarvis and Mr Potter that the shunting policy, said to have been breached by the applicant, was not applicable to the movement of the train that night. To the extent that reliance was also had by the respondent on the prohibition notice, it was the applicant’s evidence that he was unaware of any prohibition on using the on-board toilet, and it was not him who had breached the policy, in any event. Mr O’Sullivan also referred to the Driver Feedback forms, which confirmed that it was a common practice at Parkes, for Drivers to use the toilet, while the train is in motion.

[124] As to the lack of communication between Ms Burton and the applicant, Mr O’Sullivan firstly, observed that there is no actual policy going to the requirements in relation to on-board communications between Drivers. Secondly, the uncontested evidence was that Ms Burton must have heard the audible loud noise of the brakes being released before she left the train and would have known that the train was about to move. It was perfectly understandable that the applicant believed the only option she had was to use the on-board toilet.

[125] Mr O’Sullivan submitted that in the absence of any clear policy, the action by the applicant could not have been deliberate. But if there had been a breach, it was made by Ms Burton and not the applicant. It was also relevant that Ms Burton had not taken any communication equipment with her, knowing that she was alighting the train.

[126] As to the applicant travelling 11km before stopping the train, Mr O’Sullivan submitted that again there was no policy, but even if there was, the applicant was simply unaware that Ms Burton was off the train. As soon as he became aware, he took immediate stops to bring the train to a stop, in the safest possible manner.

[127] As to the speeding allegation, Mr O’Sullivan accepted that there must have been a breach of policy if the train was travelling in excess of 80km/h. It was the applicant’s genuine belief that he had not deliberately breached the policy, but the train may have ‘gotten away from him occasionally’, when he was distracted with monitoring the other gauges and looking in the side mirrors. It was relevant that Ms Burton had not, at any time, informed him that the train was speeding.

[128] As to increasing the power while already speeding, Mr O’Sullivan cited the evidence that notching up the throttle does not necessarily result in an increase in speed. The train needed to be ‘stretched’ with the undulating territory and when approaching an uphill gradient. Importantly, Mr Potter acknowledged that the applicant may not have been aware that he was speeding, and even using the respondent’s own matrix for discipline, a conclusion that the applicant had not wilfully breached any of Pacific National’s policies, would take the conclusion to ‘blameless’, resulting in no dismissal at all.

[129] Mr O’Sullivan submitted that even if there was a valid reason for the applicant’s dismissal, the penalty of dismissal was disproportionate, after his almost ten years of unblemished service. Mr O’Sullivan confirmed that the applicant sought reinstatement as the primary remedy under the Act. For the respondent to make good its claim that reinstatement was impractical, because of a breakdown in trust and confidence in the employment relationship, it had the onus to satisfy the Commission that the incident on 24 November 2014, was more than a mere aberration. The applicant’s evidence was that, if reinstated, he would pay far greater attention to the train’s speed and, if faced with a similar situation, he would reapply the brakes, if another person was intending to leave the cabin. Should the Commission find against reinstatement, the maximum amount of 26 weeks’ compensation, less remuneration earnt in alternative employment, should be ordered by the Commission.

For the respondent

[130] Ms DeBoos, in written submissions, set out the relevant background to this matter and the applicable law. I need not repeat it. Unsurprisingly, Ms DeBoos submitted there was a valid reason for the applicant’s dismissal; See: Selvachandran. The dismissal was not ‘harsh, unjust or unreasonable’. Ms DeBoos highlighted the reasons for the applicant’s dismissal as set out in the letter of termination as follows:

1. The applicant was not aware of, and failed to check the precise location and safety of Ms Burton before departing, resulting in her being left behind;
2. The applicant was aware that Ms Burton had left the locomotive on three to four occasions while the train was in motion, requiring Ms Burton to walk out onto the external footplate;
3. The applicant exceeded the maximum allowable track speed of 80km/h, on multiple occasions during the journey;
4. The applicant knowingly increased the speed of the train, while it was already travelling at, or above the maximum allowable track speed of 80km/h, on multiple occasions;
5. The applicant did not apply the minimum brake application of 70kPa; and
6. The applicant allowed Ms Burton to smoke in the vestibule of the locomotive, on three or four occasions.

[131] Ms DeBoos submitted that the Commission should be satisfied the alleged conduct above did occur and constituted a reckless violation of a number of the respondent’s policies. Ms DeBoos noted the applicant’s qualifications and experience and put that he would have been well aware that:

(a) clear communication was required to ensure that Ms Burton was safe;
(b) walking on the footplate, while the train is moving is prohibited;
(c) the train he was driving had a speed limit of 80km/h;
(d) a minimum brake application of 70kPa must be applied; and
(e) there is no smoking allowed in the workplace.

[132] Ms DeBoos then set out the evidence and circumstances giving rise to the positive findings of the respondent as to each of the allegations:

[53] There may be many reasons why an employer may exercise a discretion not to terminate the employment of a particular employee for conduct that would otherwise justify the termination of their employment. There may be all sorts of circumstances applying in the case of a particular individual which may cause an employer to take a more compassionate or lenient approach with that individual. If disparate treatment of employees is too readily accepted as a basis for finding that the termination of the employment of the particular employee is harsh, unjust or unreasonable this would act as a disincentive to employers in showing leniency or compassion to employees guilty of misbehaviour or misconduct: a most undesirable consequence. If other employees, in the context of defending an unfair dismissal application, are able too readily to take advantage of such compassion or leniency this would have the natural consequence of inducing an employer to resist impulses of compassion and leniency in deserving cases [endnote omitted].’

[213] After earnest deliberation of all of the relevant facts and circumstances of this case, I consider that the inconsistent treatment of the applicant, compared to Ms Burton, is a factor weighing in favour of a finding of the applicant’s dismissal being ‘unreasonable’.

[214] Fourthly, during the investigation, the applicant refused to concede he had done anything wrong. I accept that the respondent was entitled to view this with some concern and alarm. Similarly, I too would take a rather dim view of an employee who, in the face of incontrovertible evidence, fails to accept any responsibility for any wrongdoing or misconduct. However, given what I have earlier found in respect to the allegations against the applicant, the initial reluctance of Pacific National to provide the data logger records to him and the claim that he was speeding on 885 occasions, it is perhaps understandable that he initially took an overly defensive and disbelieving approach to what he was accused of.

[215] That said, I repeat that I found the applicant to be a sincere and thoughtful witness who was not at all defensive, but rather, he was querying and incredulous at what had been alleged against him. Even so, he now acknowledges that he was speeding. He expressed remorse and contrition for his actions. He gave an undertaking to be more diligent in his duties, particularly in respect to safety, should he be reinstated.

[216] Lastly, I will say something about the smoking allegation. The policy says, ‘You must not smoke at any time whilst on and around Pacific National premises and equipment.’ It was accepted that the applicant had no supervisory function over Ms Burton and no power to direct her to do anything; let alone not to smoke. She had not sought his permission or opinion to do so. Given the policy is expressed in respect to personal responsibility to comply with the no smoking policy (and the applicant was obviously not smoking himself), it is a nonsense to allege that he had breached the policy. That said, Mr Jarvis wisely acknowledged that this matter was not considered in the decision to terminate the applicant’s employment.

[217] From my earlier consideration of the evidence in this case and the matters which are not factually in dispute, it should be apparent where the Commission sits in respect to each of the matters I am required to take into account under s 387 of the Act. Nevertheless, let me formally elaborate in respect to each of the s 387 criteria.

Whether was a valid reason for the applicant’s dismissal (s 387(a))

[218] The Commission finds that:

(a) the allegation of fault for leaving Ms Burton behind was not made out and does not constitute a valid reason for the applicant’s dismissal;
(b) the allegation of speeding has been proven, and would constitute a valid reason for dismissal; and
(c) the allegation of permitting Ms Burton to smoke on the train was not made out and does not constitute a valid reason for dismissal.

Whether the applicant was notified of the reason for his dismissal (s 387(b))

[219] The applicant was provided with a show cause letter on 2 February 2015 and was dismissed on 24 February 2014. This factor is a neutral one in this case.

Whether the applicant was given an opportunity to respond (s 387(c))

[220] In accordance with the relatively comprehensive procedures for dealing with disciplinary issues, Pacific National gave the applicant an opportunity to respond to the allegations in two disciplinary interviews and also through his solicitor.

[221] To the extent Pacific National did not initially provide the applicant with details of the data logger records (which seems inexplicable to me), that is the only criticism which might be levelled against the respondent in respect to procedural unfairness. However, it is not a significant matter, save for the fact the applicant might have been less defensive in his disciplinary meetings, had he been fully appraised of the details of the evidence against him.

Whether there was any unreasonable refusal by Pacific National to allow the applicant to have a support person present (s 387(d))

[222] There was no refusal (let alone an unreasonable refusal) by the employer to allow the applicant to have a support person present at the discussions relating to his dismissal. This is a neutral consideration in this case.

Unsatisfactory performance (s 387(e))

[223] This factor is not relevant to a dismissal based on allegations of serious misconduct.

The degree to which the size of the employer’s enterprise and access to human resources management specialists was likely to impact on the procedures in effecting the dismissal (ss 387(f) and (g))

[224] Pacific National is a large employer with over many thousands of employees and a team of dedicated human resources management specialists. The process adopted by Pacific National reflected in its size and industrial relations experience is not a factor weighing against the respondent in this case.

Other relevant matters (s 387(h))

[225] Lest it be misunderstood, I reaffirm that safety is a cardinal principle for any workplace, but even more so in the rail industry where the risk to the safety of employees and the public is obviously greater, where fast moving trains and potentially dangerous infrastructure, are a daily feature of the working environment. It is for the reason that this Commission and its predecessors have invariably considered a serious breach of safety policies or procedures, as a valid reason for an employee’s dismissal. The Commission will not lightly interfere with the employer’s decision to dismiss an employee in such circumstances.

[226] So much so is also evident by the Act’s definition of serious misconduct earlier referred to. In addition, I respectfully agree with the helpful commentary of Asbury DP in Macklyn at para [66]:

‘[66] A serious breach of a workplace health and safety policy or an incident where an employee places health and safety at risk, will generally constitute a valid reason for dismissal. This is particularly so when the breach is wilful or reckless and is committed in circumstances where the employee is aware of the employer’s policy and the risks associated with his or her conduct. In my view the Commission should not lightly interfere with the right of an employer to establish, maintain and enforce workplace health and safety policies, through the use of appropriate disciplinary processes.’

I also acknowledge the numerous authorities cited by Ms DeBoos which have recognised this principle (see para [133]).

[227] That said, there will be rare and isolated examples where the Commission will intervene. I consider this case to be one such instance. For all the mitigating factors, I have discussed earlier in this decision, I consider that the applicant’s dismissal on 24 February 2014 was ‘harsh’ and ‘unreasonable’ within the meaning of s 387 of the Act.

Appropriate remedy

[228] The remedies for an unfair dismissal are set out at s 390 of the Act as follows:

390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.

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

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

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

[229] It is plain from a reading of s 390(3) above that the Parliament intended to give primacy to reinstatement in circumstances where an employee has been unfairly dismissed and the Commission is required to exercise a discretion as to the making of any orders in respect to remedy. Lest there be any doubt as to this proposition, one of the objects of Part 3-2 of Ch 3, dealing with unfair dismissal, states:

‘(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.’

[230] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon Health[2014] FWCFB 1949, where at para [29], it was said:

‘[29] The passages from which the sentences relied on by the Appellant are extracted clearly indicate that the Deputy President understood and applied the statutory requirements in respect of reinstatement, as does the broader context of his decision. The Deputy President noted the primacy of reinstatement as a remedy for an unfair dismissal. His observations about primacy did no more than state that consideration of reinstatement against the test of whether it is inappropriate was required (and a finding that it is inappropriate is required) before compensation in lieu could be ordered and does not provide licence to search for a reason to order an employee’s reinstatement when that is not appropriate. The requirement to find that reinstatement is inappropriate before considering compensation in s.390 of the Act gives effect to the emphasis on reinstatement in s.390(1)(c) of the Act [footnote omitted].’

[231] In Nguyen, the Full Bench of the Commission discussed the meaning of ‘inappropriate’ in the context of s 390 and helpfully summarised the relevant case law as to a loss of trust and confidence weighing against an unfairly dismissed employee’s reinstatement. At paras [16]-[28], the Full Bench said:

‘[16] We now turn to the relevant question concerning the appropriateness of reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon Australia Ltd,:

“It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not ‘appropriate’. To adopt such an approach would tend to defeat the remedial purpose of the legislation.”

[18] A similar observation was made by Northrop J in Johns v Gunns Ltd

[19] Reinstatement may be inappropriate if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case. 

[20] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the proposition, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was decided under the IR Act, the Court’s observations reproduced above remain relevant to the question of whether reinstatement is appropriate in a particular case.

[23] In speaking of ‘trust and confidence’ in this context we are concerned with that which is essential to make an employment relationship workable. It is not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker. 

[24] While it may be accepted that trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate. As Justice Gray observed in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (O’Connor) the development of the law relating to trust and confidence in the employment relationship commenced when that relationship invariably involved a close personal relationship between the employer and employee, but with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished.

[25] Justice Gray’s remarks were considered by Deputy President Gostencnik in Colson v Barwon Health in which the Deputy President observed:

“I do not take his Honour’s comments to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the “critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned”. 28 It is important to understand that his Honour’s observations were made in the context of an interlocutory application while His Honour was considering “balance of convenience” arguments against reinstatement on an interlocutory basis. His Honour’s observation about the effect of the shift from a personal to a corporate employment relationship were made as an introduction to his conclusion that the respondent did not provide any evidence on the “critical question” as identified. So much is clear from the following passage:

. . . It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.
[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.”

In my view, His Honour is merely saying that it is not enough to simply assert that trust and confidence in an employee has been lost. Where this is relied upon then there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace. In short, all of the circumstances must be taken into account. This seems evident and is hardly controversial.”

[26] Permission to appeal from Deputy President Gostencnik’s decision was refused.

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party [endnotes omitted].’

[232] Section 391 of the Act deals with the remedy of reinstatement as follows:

391 Remedy—reinstatement etc.

Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[233] The applicant seeks orders for reinstatement and ancillary orders for continuity of service and loss of wages. Reinstatement was opposed by Pacific National, for two primary reasons:

1. The applicant’s failure to acknowledge any wrongdoing or express any contrition for his actions; and
2. The respondent could not be confident that the applicant would not engage in similar conduct in the future.

[234] I agree with Mr O’Sullivan’s submission that the onus rests on Pacific National to satisfy the Commission, on a sound evidentiary basis, that reinstatement of the applicant would be impracticable. This onus is not satisfied by mere assertions by management that reinstatement would be impracticable. So much so is evident from the decision in Regional Express Holdings Limited v Richards[2010] FWAFB 8753, where the Full Bench said at para [26]:

‘[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust [my emphasis].’

[235] Nor is the onus on an employer likely to be satisfied where the allegations against a dismissed employee are found to have been not made out, or to be less serious than first believed. That said, I do not doubt the sincerity of Mr Potter and Mr Jarvis as to their views of the impracticality of the applicant’s reinstatement. With respect, I believe their views are misplaced.

[236] In my judgement, the following factors weigh in favour of a finding that the reinstatement of the applicant would not be inappropriate:

• at least in respect to the allegation of leaving Ms Burton behind, the allegation was not proven and did not constitute a valid reason for dismissal;



• neither primary allegation amounted to conduct which was wilful or deliberate, let alone reckless;



• the smoking allegation was not proven and was not a valid reason, in part, for dismissal;



• the applicant had 9½ years of unblemished service and no incidence of any safety infringements;



• the applicant now accepts he was speeding on the night of 24 November 2014;



• the incidents of speeding during the night was a ‘one off’ infringement;



• the applicant accepts that it was not safe to move the train without knowing where Ms Burton was;



• the applicant was remorseful and contrite for his involvement in the incidents on the night of 24 November 2014;



• it is at least arguable that Ms Burton was equally culpable for the events of the night of 24 November 2014, but was not dismissed and continued driving;



• there was no evidence from any of the applicant’s co-workers that they could not work with the applicant or that he was known to be derelict or careless in respect to his safety obligations;



• neither Mr Jarvis or Mr Potter had ever worked directly with the applicant;



• the paucity of any compelling evidence as to the employer’s loss of trust and confidence in the applicant; and



• Pacific National is a large employer with many thousands of employees.

[237] Accordingly, I am satisfied that it would be appropriate to reinstate the applicant to his former position of Driver Trainer. As mentioned earlier, the applicant seeks ancillary orders for continuity of service and lost remuneration, less remuneration earnt from the applicant’s alternative employment. I am prepared to make an order pursuant to s 391(2) of the Act that the applicant’s period of service be taken as continuous from the date of dismissal to reinstatement.

[238] However, I do not consider it would be appropriate to make orders for all of the applicant’s lost remuneration. The applicant was dismissed almost eight months ago and it is to his credit that he secured alternative employment shortly thereafter, albeit earning about half his previous remuneration from Pacific National. Had the applicant been entirely blameless for the incidents on 24 November 2014, it would have been unremarkable for the Commission to make orders for the payment of all lost remuneration. However, that is not a conclusion which can be made in this case.

[239] The applicant acknowledged that starting the train without knowing the whereabouts of Ms Burton, was not a good safety decision. More significantly, I have found the allegation of speeding has been substantially made out and would constitute a valid reason for the applicant’s dismissal. As was said in Parmalat, at para [29]:

‘[29] Added to this difficulty in discerning the true reasons for her ultimate finding we consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernable and significant mitigating factors. These concerns involve matters of principle and the overall reasonableness of the decision.’

As will be evident from my earlier discussion, I consider that there are real, discernible and significant mitigating factors in this case.

[240] In a recent appeal decision, Chevron Australia Pty Ltd v Rogers[2015] FWCFB 5354, the Full Bench said:

‘[69] Where the remedy for a finding of unfair dismissal is compensation without a concomitant order for reinstatement, s.392(3) places a specific requirement on the Commission to reduce the amount it would otherwise order by an appropriate amount on account of any misconduct that contributed to the employer’s decision to dismiss. Where there is a finding of unfair dismissal and the remedy is reinstatement under s.391, the requirement is for the Commission to make any order about lost remuneration it considers appropriate pursuant to s.391(3).

[70] In the decision of Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth theFull Bench determined that a deduction due to misconduct was appropriate stating at [44]:

“…In this way the importance of the respondent's policies will be vindicated and no other employee ought be able take any comfort from this decision that breaches of the Isolation Policy will do other than expose them to serious consequences…”

[71] In the present case, Mr Rogers’ serious breach of safety exposed himself and others to a potential catastrophic risk by allowing Compressor 2 to run without the Fire and Gas Detection System being re-activated. The Deputy President held that Mr Rogers, in authorising the de-isolation of the compressor without ensuring that the Inhibit Certificate was closed off and his continual failure to rectify this was a valid reason for the termination of his employment.

[72] This was not a situation of reinstatement of employment following a determination that no valid reason existed. Rather, the circumstances surrounding the incident combined with Mr Rogers’ long service, previous exemplary record and inability to find alternate work made the termination harsh. In these circumstances, the Deputy President needed to consider whether it was ‘appropriate’ to also make an order requiring the employer to pay an amount for lost remuneration. Or put another way, is it ‘suitable or proper to also make an order for lost remuneration.

…

[76] We agree with the Deputy President that a message should be sent that the safety breach was a valid reason for termination. On this basis, the compensation order made by the President did not match the message that was intended to be sent.

[77] In Harley Schofield and Mark Winterton v Broadmeadow Mine Services Pty Ltd Hatcher VP stated the following in ordering reinstatement and no compensation:

“[62] However I will not make any order for lost remuneration under s.391(3). Mr Winterton engaged in negligent conduct which resulted in him breaching a fundamental safety requirement at the Mine. Although I have found that dismissal was a disproportionate response to this conduct, it was conduct which was worthy of a lesser but still significant disciplinary response. The financial loss which Mr Winterton has suffered from his dismissal will serve as an appropriate sanction for his conduct. It will also serve as a reminder to him and others of the necessity for strict compliance with the Life Saving Rules.”

[78] The importance of safe operations on the employer’s worksite cannot be underestimated; we are of the view the Deputy President made a significant error in exercising her discretion to award compensation in addition to the reinstatement of Mr Rogers. The disablement of the Fire and Gas Detection System exposed persons and plant to a potential catastrophic event. In having regard to the breach of safety and in seeking to act as a deterrent for other breaches of safety procedures or policies at the workplace, no compensation ought to have been ordered.

[79] We grant leave to appeal on the question of compensation as being in the public interest to ensure that an effective sanction is imposed considering the gravity of the possible consequences resulting from Mr Rogers’ serious safety breach [endnotes omitted].’

See also: Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089.

[241] In this case, I believe there should be an effective sanction, having regard to the applicant’s breach of the respondent’s safety policies, its potential risks for the safety of employees and the public, risk of damage to the respondent’s equipment and infrastructure and to ensure an appropriate ‘message’ is sent to the Pacific National workforce.

[242] In assessing that sanction, I have had regard to the applicant’s remuneration earnt in alternative employment and determine that an order be made equivalent to 30% of the difference between this remuneration and the remuneration the applicant would have otherwise earnt, but for his dismissal. The payment of four weeks’ notice should also be taken into account. Whilst I estimate that this amount results in a sanction of around $25,000, I will leave the precise details of the calculation to the parties, with leave to apply in the event of any disagreement.

[243] In making these orders, I am satisfied that the determination of this matter has ensured that a ‘fair go all round’ has been afforded to the applicant and Pacific National, in accordance with s 381(2) of the Act.

[244] Finally, reinstatement of the applicant shall be effected within 21 days of today, or such other date as may be agreed by the parties. Subject to any dispute about the terms and implementation of the orders, these proceedings are concluded. Orders giving effect to my conclusions will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr D O’Sullivan of Counsel, instructed by Mr B Mackay, Solicitor for the applicant.

Ms A DeBoos, Solicitor and Ms R Bevan, Solicitor for the respondent.

Hearing details:

2015:

Sydney

28, 29 July.

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<Price code J, PR573426>