Philip Crawford v Metro Tasmania Pty Ltd

[2019] FWC 1514

[2019] FWC 1514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Crawford
v
Metro Tasmania Pty Ltd
(U2018/4988)

DEPUTY PRESIDENT BARCLAY HOBART, 8 MARCH 2019

Application for an unfair dismissal remedy.

[1] This is an application for an unfair dismissal remedy made pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant was employed as a bus driver for the Respondent. He was initially employed as a casual driver on 18 August 2014. His employment was terminated on 23 April 2019 for serious misconduct.

[3] The Applicants employment became a full time employee on 15 April 2018 after a recruitment process. The Applicant had therefore been employed for a total period of some 3 years and 8 months. The Respondent did not assert that the Applicant had not met the minimum employment requirement. The Applicant was otherwise protected from unfair dismissal.

Background

[4] The Applicant had received a Final Written Warning on 1 March 2019 (for an incident which occurred on 21 February 2018) some seven and a half weeks before his employment was terminated. He had been involved in a serious accident when the bus he was driving collided with a motor cyclist. The motor cyclist was fortunately not badly injured, although there was real potential that he may have been. 1 The cyclist was knocked from his motor cycle and slid for some distance along the road. Fortunately he stayed in the left hand lane (in which the bus was driving) so was protected from the potential of colliding with or being hit by other traffic (the road being dual carriage way in the area of the collision).

[5] The final warning was said to be in place for a period of 12 months and included the following 2:

Please be advised any further failure to comply with any policy of procedure may result in additional disciplinary action or the termination of your employment.

[6] The accident was caused by the Applicant looked at his duty card whilst he was driving. 3 It seems the Applicant was charged by the police with the offence of driving without due care and attention.4

[7] A duty card is a written description of the route to be driven by the driver. It includes abbreviated street names and the times at which the bus is due to arrive at various stops on particular streets of the route. The drivers carry the duty card with them on the bus. From the evidence they are kept in a slot near the driver whist the route is being traversed.

The incident leading to dismissal

[8] These are my findings of fact from the evidence led at the hearing, including viewing CCTV footage which was tendered into evidence. The CCTV footage is taken from a camera in the bus and shows the driver while he is driving.

[9] On 13 April 2018 the Applicant was driving his bus on Argyle Street in the centre of Hobart when he looked at his duty card. There were pedestrians and traffic present along Argyle Street and adjacent footpaths.

[10] While the Applicant was halted at a pedestrian crossing he got his duty card out. He was still holding it as the bus moved off from the crossing. As the bus was moving the Applicant looked at the duty card, including turning it over to look at the other side.

[11] At that stage the bus is travelling at about 16 kilometres an hour. The speed is taken from a stamp which appears on the CCTV footage. Whilst the Applicant did not accept that the speed was accurate I am satisfied that the speed was approximately that shown by the stamp on the CCTV.

[12] The bus slows and comes to a halt and the Applicant again looked at the duty card. The bus again moves off and the Applicant returns the duty card to its slot while travelling at an indicated 12 kilometres per hour.

[13] Of significance is the following exchange which occurred when the Applicant was being cross examined 5:

MS MASTERS: So, you’re folding it up. Stop. Sorry. Now, you see your actions there, Mr Crawford, that’s almost identical, isn’t it, to what you did just prior to having that accident on the Brooker? As you’re putting the duty card away, you turn your head away from the road completely to look where you’re going to put it?  -It’s similar, yes, yes.

I put it to you it’s exactly the same?  -Yes, I think it’s similar, yes.

[14] It appears that the incident came to light in consequence of a complaint from a passenger that the Applicant had driven the wrong route and the Respondent carrying out an investigation of the complaint.

The Disciplinary Process

[15] The Respondent wrote to the Applicant on 19 April 2018 commencing a show cause process. 6 The letter identified potential breaches of the Respondents Value Respect, Code of Conduct and Bus Operator Manual. The particulars were that the Applicant used his mobile phone while greeting customers at the Hobart Bus Mall where the route commenced and “repeatedly referred to your duty card for lengthy periods whilst driving down Macquarie and Argyle Streets”. The show cause letter noted some background matters then said:

The most recent at fault accident you have recently been cautioned over was due to similar behaviour, resulting in receiving a final written warning in 1 March 2018 and follow up training in relation to your responsibilities as a bus operator, we consider this alleged behaviour as serious misconduct.

[16] The letter then continued:

Having regard to the allegations and particulars I consider your behaviour / conduct is sufficiently serious behaviour / conduct to be considered misconduct and is in the range which the business, should it be necessary to do so, could consider the termination of your employment.

[17] Thereafter the Applicant attended a show cause meeting and presented a written response to the show cause letter 7. At the meeting the Applicant was shown some of the CCTV footage (although not all of it). There were discussions relating to the incident. The Applicant was accompanied by a union representative. I note the Applicant thought he had been ill advised by the union representative. In my view nothing turns on that in this case. Certainly the Applicant made no submissions that it was relevant to the outcome of the matter.

[18] During the afternoon of 23 April 2019 the Applicants employment was terminated by the Respondent. The Applicant was handed a letter of termination 8.

The Hearing

[19] At the Hearing the Applicants counsel (who had been granted permission to appear – as had counsel for the Respondent) whilst not specifically abandoning grounds of lack of procedural fairness and natural justice, advised that those arguments were rather to be taken into account in respect to the issue of harshness and disproportionate response which is was asserted the Applicant had received.

[20] The gravamen of the argument of failure to accord procedural fairness was that the Applicant was not shown the entirety of the CCTV footage. These matters were as I understood it abandoned. That is, it was not asserted that anything turned on the fact that not all the CCTV footage was shown to the Applicant. That left an assertion that the show cause meeting was held in an arbitrary manner and lacked good faith. In my opinion however those assertions were never made good by the evidence. Again the Applicant made no submissions in closing about the meeting. It was also asserted that the Respondent failed to give proper consideration to the matters put by the Applicant at the show cause meeting. Again however in my opinion the Applicant has failed to establish that there was such a failure. The Applicant made no submissions about this matter either in closing.

[21] Indeed by the time counsel for the Applicant closed the Applicants case had become that the response to the first incident was disproportionate having regard to other sanctions imposed on other employees for similar conduct, and that therefore the final warning was inappropriate and that in respect to the 13 April 2019 incident is was not of itself so serious as to justify termination absent the final warning.. That is, the final warning was excessive and that the sanction for the April conduct should have been imposed as if the final warning had not been made.

[22] I therefore have to consider whether there is a valid reason for termination and comparative fairness (in the sense that is submitted that the Applicant was treated inconsistently with other employees who have been the subject of a disciplinary procedure for matters of similar seriousness but had not had their employment terminated).

[23] The Applicant made no submissions in regards to those matters referred to in s 387 (b), (d), (e), (f) and (g).

[24] The Respondent submits that the dismissal was not unfair because the Applicant had engaged in a serious safety breach by looking at his duty card whilst driving when he had recently been involved in a serious at fault accident caused by the same conduct (looking at the duty card whilst driving), was given a final warning and less than 2 months later was observed to look at his duty card whilst driving the bus while driving in central Hobart on a busy street.

[25] I should note that the allegations in respect to the mobile phone use were not relied on at the hearing to justify the termination of the Applicants employment.

Consideration

Valid Reason

[26] I will turn first to whether there was a valid reason for the termination of the Applicants employment.

[27] It is not in dispute that the Applicant looked at his duty card while operating the bus. It is also not in dispute that the Applicant looked at his duty card while the bus was in motion.

[28] The Applicants submissions in respect to valid reason are (omitting footnotes) 9:

“ s387(a) – Valid Reason

14. The Respondent terminated the Applicant on the basis that the Applicant had breached policies and codes of conduct. However, a breach of an employer’s policy will not in itself give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach.

15. In the first instance the Applicant was advised that the Applicant allegedly failed to follow clause 4.2.06 of the Bus Operator Manual (‘the Manual’), which advises drivers they are to ‘complete their runs as detailed on their duty card or as instructed by a Supervisor’ (emphasis added) and that they must be ‘familiar with the routes on which they are rostered to work’.

16. The Applicant, on numerous occasions, was instructed by management to refer to his duty card if he was unsure of his route.

17. It is common practice for Bus operators to refer to their duty card whilst on the road, as evidenced by Mr Tylutki’s witness statement.

18. The Applicant denies that his conduct in responding to an urgent family text message, whilst at Hobart Bus Mall on 13 April 2018 constituted a breach of the Respondent’s Bus Operator Manual or their ‘Respect’ values.

19. The Applicant Responded in the show cause meeting of 23 April 2018 that the Respondent had no rule that precluded him from using his mobile phone whilst the bus was non-operational. The Respondent, through Mr Arkley, agreed and advised that the issue was that the Applicant allegedly breached the Respondent’s ‘Respect’ values.

20. The limited CCTV footage shown to the Applicant shows that at the time he was responding to the urgent text message, he continued to acknowledge, verbally greet and issue tickets to boarding passengers. The Applicant submits that he was not acting disrespectfully towards any passengers.

21. The Applicant submits that whilst his actions on 13 April 2018 may have caused the Respondent some discomfort, dismissal was not a reasonable option to exercise in the circumstances and was a disproportionate response to the Applicant’s conduct.”

[29] The Respondent, in regard to the conduct and valid reason submits that the (omitting footnotes) 10:

“This behaviour is contrary to the Respondent’s:

(a) Code of Conductwhich relevantly requires, amongst other things, that employees:

(i) consistently perform work to an acceptable standard with all due care and diligence;

(ii) follow reasonable lawful directions from a Supervisor, Manager or other authorised person; and

(iii) comply with Metro Workplace Health and Safety Policy

(b) Workplace Health and Safety Policywhich, amongst other things, relevantly requires employees to fulfil their duty as an officer of the Respondent by:

(i) exercising due diligence (in the performance of their work);

(ii) taking care for their own health and safety;

(iii) taking care that their acts or omissions do not adversely affect the health and safety of other persons; and

(iv) comply, so far as they are reasonably able, with any instruction that is given by the Respondent to allow the Respondent to comply with the applicable laws (i.e. Work Health and Safety Act 2012).

(c) Direction to only review duty card when safewhich is reflected in the referral training sign-off the Applicant completed on 1 March 2018.

12 Further, the Applicant’s conduct presented a risk to public safety, in circumstances where, relevantly:

(a) it was a serious breach – safe driving techniques are in place to ensure that the inherent risks of operating a heavy vehicle are reduced as much as possible;

(b) there is no reasonable explanation or excuse for the Applicant’s serious safety breach – the Applicant could have waited until the vehicle was stopped and the

handbrake applied to look at the duty card and the Applicant has not provided a

reasonable explanation for why he did not do this;

(c) the Applicant was very recently involved in an at-fault accident where he collided with a motor-cycle in traffic which was clearly caused by the Applicant’s inattention while he looked at a duty sheet which resulted in the Applicant being:

(i) given a final warning by the Respondent (following a disciplinary process); and

(ii) charged by Tasmania Police for driving without due care and attention; and

(d) the Applicant was trained in the relevant policies and procedures and had completed referral training which expressly dealt with when it was safe to refer to a duty sheet following the First Incident.

13 The Applicant’s serious safety breach (particularly considered in light of the First Incident and subsequent warning) amounts to serious misconduct as it presented a serious and imminent risk to the:

(a) safety of the public – the First Incident that the Applicant was involved in demonstrates how a moment of inattention by looking at the duty card can result in a serious accident causing serious injury or even death; and

(b) Respondent’s reputation - as a public transport provider, the Respondent is held accountable by the public through all forms of media for its actions particularly in relation to safety. Repeated unsafe driving behaviour by employees presents a serious and imminent risk to the Respondent’s reputation as a safe public transport provider. This is particularly the case where the Applicant was already given a ‘second chance’ following the First Incident based on his apparent remorse and acceptance of wrongdoing at the time.

The applicant’s evidence

[30] The Applicant suggested that he had looked at his duty card because a passenger told him while alighting from the bus that he had missed some stops.

He said in his witness statement 11:

And later 12

[31] I find it unlikely that the reason advanced is correct. Firstly, at paragraph 51 of his witness statement the Applicant says that he looked at his duty card to “ensure I did not miss any further changes to the route”. This suggests he looked at the duty card at the time or shortly after the passenger alighted so he would not miss any further changes. That seems to be what happened. The CCTV of the exchange with the passenger is referred to in the customer complaint made when the Applicant missed the stops.

[32] The document is entitled “Complaint Detail” 13 and refers to the CCTV and discloses that the Applicant looked at the duty card while the passenger was still on board. Significantly the Applicant is heard to say “no I’m doing a 562 and it goes this way”. I find that the Applicant did check the duty card because a passenger suggested he had missed some stops. However he did that at the time of the query by the passenger.

[33] I also note that Argyle Street was near the start of route 562 14. Accordingly if the Applicant consulted the duty card because of the issue raised by the passenger he waited to commence the start of the next route to check rather than check while he was driving on the route that was queried. That does not make sense. Waiting until then would not assist in ensuring the Applicant did not miss any further changes to the route while he was travelling on it.

[34] The Complaint Detail also sheds light on whether the reason for looking at the duty card was the customer compliant or some other reason.

[35] The complaint discloses that the complainant was on the 2.08 p.m. service. The CCTV depicting the incident leading to termination shows the Applicant driving the bus up Argyle Street at about 2.20 p.m. I infer that the complainant was on the journey depicted in the CCTV. I am aware that buses usually travel at approximately 30 minute intervals during the middle of the day. As such the passenger could not have told the Applicant that he had missed stops before the Applicant looked at the duty card as the stops about which he complained had not yet been missed.

[36] During the course of cross examination it seemed that the Applicant changed his version of events. He initially agrees that he looked at his duty card because of the issue raised by the passenger. 15 However when it was pointed out that he had not driven to that part of the route where the passenger made his complaint he said he looked at the duty card because he was second guessing himself. The following exchange occurred16:

But the route, I presume, then, starts in Hobart? The route started from Hobart, yes. I was getting to your answer. Your answer is prior to the run we look at our duty card for reference points. Yes, I looked at it. It didn’t have Queens Walk, Bellevue Parade. So, I took off. Something kept registering in my head, because I’m on a final warning, I’ve got to, you know, dot my I’s, cross my T’s. Something just kept saying, “I think I do those streets, but it wasn’t down as reference points.” So, I kept second-guessing myself and I’m going, “If I do this wrong and someone complains, I’m in trouble.” So, that’s why I looked at it in Argyle Street to double check, well, do I do it, do I not do it? No, there’s no reference point. So, I go down past, which is what I did, and then the gentleman complained when he got off at Risdon Road. And I said to him, “I don’t think it does, but I’ll check my paperwork while I’m here.” And I got my paperwork and I said, “No, I’m sorry, the two reference points, Bellevue Road and Queens Walk, aren’t here.”

Your response or what you have indicated is that you were looking at your duty card because you inadvertently missed sections of the route? Mm-hm.

But, in fact, what we’ll play to you in the CCTV footage is that you were looking at your duty card whilst you were driving up Argyle Street before you even got to that part of the route? Yes, because I was second-guessing. But I was second-guessing myself. As I just said, I looked at my paperwork prior to the start of the run. Yes, it doesn’t have Bellevue, it doesn’t have Queens Walk, because they’ve been now taken off the duty card without telling drivers. We all go on reference points, that’s why they’re there.

The exchange continued 17

MS MASTERS: So, Mr Crawford, when you responded and said that the reason you were looking at your duty card was because a passenger had raised it with you that you’d missed part of the route, that’s in fact wrong, isn’t it, because - - -? Where? Where does that say that? What page is that?

It’s page 56 in the show cause response? Yes. And, what, was that in (c)?(c)? Well, it says there that, “Inadvertently missed a section of the route, confused a 562 with 561 and missed Bellevue Parade and cemetery section of the route. When a departing passenger queried the route taken, I checked my duty, apologised to the passenger for the error and followed up with a bus operator’s report querying the change in the SWA which was not communicated to the bus operators.”

That whole explanation, that doesn’t explain at all while you were looking at your duty card while you were driving in Argyle Street, does it? Well, there’s confusion with the run because of the reference points being taken off without notifying the drivers. We work off reference points.

But you say that that was brought to your attention by a passenger who departed on Risdon Road? Yes, that’s correct.

You drive up Argyle Street well before you get to Risdon Road, don’t you? That’s correct, and I said prior to that at the start of that run I looked at my paperwork to see what I was doing. Yes, I’m doing this run. There’s no reference points for Bellevue Parade. Okay, so, I go straight down Park Street. When I took off, I kept second-guessing myself knowing that I’m on a final warning if I do anything wrong and it kept playing in my head, “Do I? Maybe this is wrong. I need to double check because if I do something wrong I’m going to be in trouble.” Which I checked again. No. But something kept saying it just doesn’t feel right, something’s wrong about the run. And then when the gentleman complained and I said, “Maybe he’s right.” Checked my paperwork again at the bus stop and I said, “No, I’m sorry, the reference points aren’t on here, so, I don’t do this run.”

When you were driving up Argyle Street, the reason you looked at your duty card was you had a feeling about something, didn’t you? That’s your explanation now? Yes, I did, yes.

The final exchange is I wish to refer to is 18

How long would you say it would take you to consult your duty card to check a route?  -10, 15 seconds. I believe I’d already checked it prior to that. We always do it prior to the end of a run. Sometimes at the start. It depends on where you are at the time in your bus and what the run is previously.

You had plenty of time to check your duty sheet while you’re sitting there, you’d agree, wouldn’t you?  -It was checked prior to that, so, I knew what run I was doing.

So, you knew what run you were doing because you checked?  -Mm.

[37] To give the last exchange context the reference to sitting there was at the time the Applicant was greeting passengers at the start of the run.

[38] I am left in the position that I disbelieve the Applicants explanation that he looked at the duty card in Argyle Street because of the passenger complaint. He may have looked at it because he wanted to check the route. However it appears he checked the duty card at the start of the route and that he knew what run he was doing. I do not know why the Applicant looked at his duty card whilst the bus was in motion in Argyle Street. I find the Applicant had no valid reason to look at the duty card when he did. I find he knew he was not supposed to look at the duty card while the bus was in motion. He never the less did.
 19
[39] I conclude there was no justification for the conduct. He had no need to look at the duty card when he did and while the bus was in motion.

Consideration of valid reasons

[40] I have considered these submissions and the evidence in respect to the conduct. I find there was a valid reason for the termination of the employment. I take account of the previous incident involving the motor cycle. Whilst I deal with proportionality below I do not think a final warning was disproportionate to the conduct of the Applicant in respect to the first incident. Looking away from the road whilst travelling at about 65 kilometres per hour on a busy dual carriageway driving a bus behind a motor cycle was dangerous. The consequences of the accident could have been much more serious.

[41] In light of the final warning and the fact that the Applicant repeated the conduct which caused the first accident only some 7 weeks later on a busy street in the middle of Hobart constituted a valid reason for the dismissal.

[42] This is especially the case as I do not accept the explanation given by the Applicant for looking at the duty card and I find there was no proper justification for looking at the duty card when he did. There was (as with the first incident) the potential for harm to people or property. The conduct was risky. It amounted to misconduct.

Disproportionality

[43] As referred to above the Applicants main argument is that the final warning for the first incident was disproportionate to the conduct which in turn makes the sanction of termination disproportionate to the conduct on 13 April 2019.

[44] To seek to make that submission good the Applicant was granted leave to issue Notices to Produce various disciplinary records of the Respondent.

[45] During the hearing a number of disciplinary documents were tendered. The purpose was to show that the Applicant had been dealt with harshly and unfairly.

[46] Exhibit A4 related to employee EVB 20. EVB’s employment was terminated for inattention by looking away from the road, mounting a road island, colliding with a road sign and narrowly missing another vehicle. EVB was subject to a number of warnings, including three final warnings. The most recent final warning was approximately 7 months before the incident leading to the termination. The final warnings were near misses in that no collisions took place.

[47] Exhibit A5 related to ST. ST ran a red light because his sun visor was too low. It was a near miss in that no collision took place, although aggravatingly the bus had a number of standing passengers. He was subjected to further training and a formal (but not final) warning. There was no evidence of other conduct matters save one of driving a wrong route.

[48] A6 relates to RL. RL had a number of issues including being rude to passengers, failing to leave enough room when overtaking cyclists, numerous instances of arriving late for work, failing to follow procedures and on two occasions he was involved in minor accidents. It is fair to say that this employee was not a good employee with numerous lower level infractions. None of the incidents led to dismissal. RL did however receive a number of written warnings. From what I am able to glean from the exhibit none of the matters, taken in isolation would justify termination. It might be said that cumulatively a case could be mounted for dismissal but that is a very different case to the present.

[49] Exhibit A7 relates to WJ. WJ was tail gaiting and also using an iPad whilst driving slowly for about 7 minutes. Additionally WJ was rude to police when they spoke to him about the tail gaiting. He was given a final written warning. It is not clear if WJ had any other matters. It is not known how long he was employed.

[50] Exhibit A8 relates to GC. CG drove into the rear of another vehicle. That vehicle had taken off then stopped. As it took of the bus moved forward. The driver then looked away and ran into the back of the car. CG was given a written warning.

[51] Exhibit A9 relates to a driver who was seen by a passenger looking at “paperwork” while the bus was in motion. This case was referred to by the Applicant and his witness in evidence. There is no evidence of any disciplinary process. This case was sought to be relied on as the conduct of the driver on this occasion was the same as the conduct of the Applicant. In so far as looking at the duty card was the same, other matters differ. This driver drove much more slowly (about 2 kph) and was mostly stationery. While there were many cars around there was no evidence of pedestrians. I have no information how long this driver had been employed or what his work conduct history was like.

[52] The Applicant submits that from these 6 instances that I can infer an inconsistency in the way in which the Respondent deals with the applicants matter. It is also submitted that there were other sanctions short of a final warning which could have been utilised by the Respondent. I say final warning because as referred to above, it the sanction for the first incident which the Applicant attacks for inconsistency.

[53] I am not prepared to find from the narrow number of examples which have been tendered that the final warning was excessive for the first incident. I note I raised with the Applicants counsel that these documents were a small part of a large folder of disciplinary matters which had been produced by the Respondent and that they may not be representative sample of the way the respondent deals with disciplinary matters. Counsel submitted the instances referred to in the tendered documents were examples of the application of the disciplinary policy by the Respondent. Counsel did not submit they were representative of the way the Respondent usually or habitually applied the disciplinary policy.

[54] In addition to the sample being non representative, I have no information about most of the other employees’ circumstances, how long they have been employed and the like. Additionally I note that the Applicant has a number of other matters. There are 5 matters which relate to the operation of a bus four of which are minor accidents. I simply cannot tell from the evidence whether the treatment meted out to the Applicant for the very serious accident he was involved in with the motor cycle was excessive and outside the bounds of what was appropriate having regard to the way others have been treated.

[55] I do not find that there was any disproportionality in the way the Applicant was treated for the first incident.

[56] Whilst the Applicant does not rely on any other grounds to establish that the dismissal is harsh, unjust or unreasonable I have considered all around whether, given my finding that the final warning was not inappropriate, the dismissal was justified.

[57] In my opinion it was. The conduct of looking at the duty card while the bus was in motion was the same conduct which led to the final warning only some 7 or so weeks earlier. As I have been at pains to set out, there is no reasonable explanation for the conduct and no mitigating circumstance for the conduct. I am satisfied that the conduct amounted to a breach of the Respondents policies and procedures and amounted to misconduct. . The Applicant knew that the conduct was not permitted. Troublingly it appears from the evidence that there was in fact no need to look at the duty card when he did because he had looked at it only minutes before while sitting at the start of the route and as he said he “knew what run I was doing”.

Conclusion

[58] As I have found there was a valid reason for the dismissal and that the dismissal was not harsh, unjust or unreasonable, I dismiss the Application.

DEPUTY PRESIDENT

Appearances:

Mr O’Halloran of Counsel for the Applicant

Ms Masters of Counsel for the Respondent

Hearing details:

12 and 13 Sept 2018

Printed by authority of the Commonwealth Government Printer

<PR705640>

 1   Transcript PN 241, 284 - 287

 2   Court Book page 84

 3   This was accepted by the Applicant. See PN 257

 4   Court Book p. 29

 5   PN 426

 6   Court Book p. 86

 7   Court Book p. 22

 8   Court Book p. 24

 9   Court Book p. 5

 10   Court Book p.30

 11   Court Book p. 13

 12   Court Book p. 14

 13   Court Book p. 85

 14   Court Book p. 49

 15   PN 307 - 308

 16   PN 323 - 325

 17   PN 335 -341

 18   PN 380 -382

 19  

 20   I have determined to keep the identity of the persons to whom the records relate anonymous as identifying them would serve no purpose and only embarrass them.