[2007] AIRC 969 |
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.643 application for relief in respect of termination of employment
Colin Gottwald
and
Downer EDI Rail Pty Ltd
(U2007/5684)
SENIOR DEPUTY PRESIDENT RICHARDS |
BRISBANE, 30 NOVEMBER 2007 |
Summary – termination of employment – arbitration – runaway rail car - applicant’s conduct as shunt pilot – procedural obligations - theory of accidents – scope of meaning of s.652(3)(a) re “safety and welfare of other employees”- whether harsh etc.
DECISION
[1] On 29 August 2007, Mr Colin Gottwald (‘the Applicant’) filed an application for relief under s.643(1)(a) of the Workplace Relations Act 1996 (Cth) (‘the Act’) in relation to the termination of his employment with Downer EDI Rail Pty Ltd (‘the Respondent’).
[2] A conciliation conference was held in the matter before Commissioner Hoffman on 19 September 2007. The matter was not settled at conciliation and the matter was allocated to Commissioner Spencer, and then to myself for Arbitration.
[3] The Arbitration of the matter was held at the Hervey Bay Magistrates Court on 21, 22 and 23 November 2007. In addition, a site visit was conducted to the premises of the Respondent in nearby Maryborough on 21 November 2007. The site visit permitted the opportunity for an examination of the incident scene, as discussed below.
[4] The following witnesses gave evidence on behalf of the Applicant:
[5] The following witnesses gave evidence for the Respondent:
[6] A further witness, Mr Robert Schofield, Maintenance and Training Engineer at the Respondent provided an affidavit which was admitted into evidence, but was not cross-examined.
BACKGROUND
[7] The Applicant was employed by the Respondent at its Maryborough premises for a period of approximately 22 years from 18 September 1985 until the termination of his employment on 16 August 2007. The Applicant was employed in the capacity of a Trades Assistant at the time of the termination of his employment.
[8] The Applicant’s ordinary duties included store ordering, assisting tradespersons, forklift driving, some crane driving, sweeping, driving, and shunting (to some measure to be determined). 1
[9] The term shunting is used to describe the process of moving rail cars, with the assistance of a tractor in this instance around the Respondent’s business premises.
[10] On 3 August 2007, the Applicant was undertaking shunting duties for the Respondent with a co-worker, Mr Kelvin Thorburn. On this day, the Applicant was undertaking the shunting duties as the pilot and Mr Thorburn was the shunt tractor driver.
[11] While the Applicant and Mr Thorburn were undertaking their shunting duties, they were involved in a workplace safety incident in which a rail car they were shunting rolled under its own momentum into a workshop.
[12] While no one was injured in the incident, the potential consequences of the incident were catastrophic. The rail car involved is some 25 metres in length and weighs approximately 43 tonnes. 2 The rail car rolled into the rail car workshop from its starting point some 100 metres away on its own momentum, and crashed into another rail car, which itself was shunted between some 5-14 metres.3
[13] If the points had been locked onto the main line, the train may have run out into the public space in central Maryborough. 4
[14] Central to the incident was the conduct of the two employees, the Applicant and Mr Thorburn. In the Applicant’s case, he was accused of acting in non-compliance with the Company’s procedures and working in an unsafe manner.
[15] For his part, Mr Thorburn, it would appear, was accused of getting out of his seat in the shunt tractor and detaching (or decoupling) the rail car from the tractor, causing the un-stabilised rail car to jolt and gain the momentum which caused it to roll away. Mr Thorburn’s employment with the Respondent was also terminated.
[16] At the point when the rail car was stationary, one employee, Mr Milton Cunningham, had climbed aboard it assuming it had been stabilised by the Applicant. Because of the momentum the rail car developed when it was jolted by the decoupling, he was forced to ride out the event in the rail car. He was uninjured. A further two employees who were in the rail car in the workshop with which the runaway rail car collided were also uninjured. Those working on the rail car in the workshop were able to remove themselves from the area in time, and were not injured. Fortunately, no employees at that precise time were working in the pit beneath the rail car in the workshop, or on top of the rail car at the time of the collision. 5
It is agreed between both parties that the incident was very serious in nature, and readily could have had fatal consequences. 6
[17] It was as a result of the Applicant’s involvement in this incident which culminated in the termination of his employment on 16 August 2007.
[18] The letter of termination, dated 16 August 2007, stated partly as follows:
“This letter is formal notification of the company’s action to terminate your employment with Downer EDI rail, effective immediately. This action is based on your negligence in adhering to the company’s work procedures and working in an unsafe manner relating to the rail safety incident that occurred on 3 August 2007.
“This action is based on the assessment of the Rail Safety Investigation conducted on 3rd August 2007 and interviews conducted by the Executive Manager Human Resources on 15th August 2007, and applied in accordance with the Downer EDI Rail Discipline Procedure and the Maryborough EBA 2005.” 7
[19] According to the Applicant’s written statement in these proceedings he was trained in shunting and held an EDI Rail shunting ticket, although on his claims it was informal, in-house training of a practical kind, and was only vaguely aware “of some written procedures”. 8 Under cross-examination, the Applicant admitted to having been provided with copies of some of these written procedures at toolbox meetings and also admitted to having reviewed them and retained them.9 There is further discussion of this matter below.
[20] Owing to the absence of one of the usual shunting team, the Applicant was asked, he states, to carry out a shunt on 3 August 2007, along with Mr Thorburn.
[21] At the direction of the Applicant, who was the shunt pilot, Mr Thorburn (the shunt driver) using a tractor, pulled the rail car back from the workshop to a position at which it was parked.
[22] Whilst the Applicant and Mr Thorburn were assessing the circumstances of the position at which they had parked the train to determine if there was room for another train to pass, the train moved backwards slightly, and, according to the Applicant, he placed a chock under one wheel of the rear bogie of the rail car. At this point, the Applicant then prepared to chock the front wheel of the rear bogie (or in fact did so) and to complete other procedures (including further chocking of a wheel of the front bogie and activating the air brake) when he heard Mr Thorburn yelling out “chock it, chock it!”, as the rail car began to roll back towards the workshop. 10
[23] The cause of the rail car beginning to move (as set out above) was because Mr Thorburn (for reasons unknown to the Applicant, so he claimed), had uncoupled the rail car from the tractor and because it had not been stabilised comprehensively, the rail car moved forward, under its own momentum, and began to roll into the workshop, where it collided with another rail car, in the manner described above.
[24] The momentum the rail car gathered is explicable because the rail car was parked almost at the crest of a sleight undulation of the ground level on which the track was laid.
[25] The Applicant endeavoured, it appears, to chock a wheel as the car moved away, but the rail car’s momentum was such (along with the physical difficulty of reaching under the body frame to reach the wheel access) that he was unable to secure the chock, despite throwing himself to the ground in an effort to do so. 11 In a desperate moment, the shunt driver also attempted to halt the 43 tonne rail car, by physically pushing up against it as it began to roll towards the workshop.12
[26] Shortly after the incident occurred, Ms Linda Armstrong, the Respondent’s Health and Safety Advisor discussed the incident with the employees who had witnessed it. Ms Armstrong asked each employee, including the Applicant to provide a written statement about their observations of the incident. 13
[27] Mr Kristen Green, the Test Shed Manager at the Respondent then undertook an investigation into the incident and completed a Rail Safety Report in accordance with Rail Safety regulations. 14
[28] While the Applicant did not return to shunting that day, he did carry out a shunt the following day at his employer’s direction, and did so along with Mr Thorburn. 15 The Respondent, it appears, did not intend this to happen as the Applicant had been stood down from shunting for the period of the investigation.16
[29] Some twelve days after the incident and the investigations procedures outlined above, on 15 August 2007, the Respondent conducted a further phase of its investigation, this time through the agency of its National Human Resource Manager, Mr Andrei Moore. At this time, the Applicant was asked if he wished to amend his original statement and there was further discussion as to the content of the statement itself, along with a considerable body of further questioning about the Applicant’s conduct in relation to the relevant procedures. The Applicant was invited to and did have a support person present with him throughout at least one of these interviews.
APPLICANT’S SUBMISSIONS
[30] Elementally, the Applicant contends that he was not responsible for the accident. Responsibility, instead (so the Applicant contends) resides exclusively with his co-worker, who decoupled the rail car from the tractor without the car being stabilised and without the Applicant’s direction as the shunt pilot. The Applicant largely maintained this position throughout his oral evidence, and did not believe himself to be culpable in any respect, though his disposition shifted somewhat in the later stages of cross-examination.
[31] In this regard, Mr Sheppard, who was the Applicant’s support person through the investigatory and the ultimate disciplinary process, and who has 18 years shunting experience and who holds an EDI shunting and pilot ticket, gave evidence that the Applicant had acted in accordance with shunting procedures. That is, the Applicant was in the process of chocking the wheels, applying the parking brake, and then giving the all clear so that the rail car could be uncoupled. 17Mr Sheppard did not witness the incident and his evidence presumes the integrity of the Applicant’s claims.18
[32] The inference the Commission is asked to draw from this is that the Applicant was not responsible for the decoupling of the rail car and he otherwise acted in accordance with appropriate procedure at the time. Responsibility for the incident, in this scenario, resides exclusively with the co-worker who acted precipitously in decoupling the train and in advance of the completion of the shunter’s procedures (chocking, applying the park brake and putting the flags out).
[33] Further to this, it was argued further on the Applicant’s behalf that the decision to terminate the Applicant’s employment was harsh and disproportionate to the gravity of the conduct complained of because:
RESPONDENT’S SUBMISSIONS
[34] The Respondent’s version of the critical incident differs at some critical points from that of the Applicant.
[35] The point of substantive difference between the parties concerns the Respondent’s view as to the Applicant’s level of training and knowledge and consequent responsibilities during the shunting procedure.
[36] By way of background, the Respondent contended that it re-trained and re-credited all shunting operators, including the Applicant; it would appear, in October 2006. This re-training comprised both a theoretical study in a classroom environment and a practical examination. 19 The Applicant’s evidence in this regard is also cited below.
[37] This re-training initiative arose expressly from a fatal rail shunting incident at another company in September, 2006. This caused the Respondent to audit its compliance with existing Company Work Instructions (“CWI”), which yielded information about less than optimal levels of compliance with existing CWI’s. The Respondent informed supervisors and shunters of the results of the audit and carried out tool box talks in relation to shunting procedures. 20 The re-training referred to above commenced the next month; in October 2006.
[38] Following the re-training, in April 2007, the Respondent introduced a new Standard Practice Procedure (“SPP”) in relation to flagging and chocking and the applicable CWI. These were addressed at toolbox meetings at which the Applicant was said to have attended.
[39] The Respondent insisted that the Applicant had completed all training and was aware of the requirements of the business in these regards. 21
[40] It was also claimed that the Applicant was an experienced shunter who shunted regularly. 22
[41] The critical error that the Applicant is said to have made is that he failed to secure or stabilise the rail car by applying the brake and\or chocking the wheels on the front and rear bogies. This was in breach of procedures that he was obliged to apply consequent of his training. When the Applicant’s co-worker uncoupled the tractor from the rail car, the subsequent jolt caused the unsecured rail car to roll away.
[42] Which procedures were breached?
[43] The Respondent contended that SPP 020 and CWI 17130 were allegedly breached. The Applicant admits that he was given a copy of both procedures, along with others. The Applicant, however, claimed that he received no instruction in relation to the same. 23 Under cross-examination, the Applicant stated that when these procedures had been handed out, his supervisor had spoken “very briefly on the written procedures”24 and “highlighted the key points.”25
[44] SPP 020 requires, 26in part, as follows:
“6.3 Park brakes must be checked for full application in addition to chocking for all inoperative vehicles (stabled ready to go etc)”
[45] The content of SPP 020 was reflected in the Tool Box Points in relation to Flagging and Chocking.
[46] CWI 17130 27 says the following, relevantly:
“4.The Pilot controls shunting movements by use of hand\radio signals to the driver of the … shunting tractor.
Stabling means that the rolling stock is shutdown and breaks applied, wheels chocked…
5.2.2 A pilot must give an instruction at every 5 second interval to the driver via radio transmission during normal shunting operations ….
5.4.1(a) Only move the Rolling Stock in accordance with the radio\hand signals given by the pilot.
5.4.2 (a) Shunting Pilot [to] control passenger vehicle/locomotive and shunting vehicle movement [….]
[…]
5.4.2(c) To always be in sight of the driver and both wheels and rails in the direction of the travel. Where this is not possible, the radios are to be used.”
5.5 (h) At the completion of shunting the pilot will use two chocks in either direction to chock the wheels to prevent movement and engage the vehicle park break as required.
5.5(i) The pilot will then place two red flags on the vehicle and another flag at ten metres from either end of the vehicle. […]”
[…]
5.6(f) The pilot will secure the vehicle with park brakes as required or with two wheel chocks in either direction to prevent movement when the designated work area is reached.
[…]
5.6(h) The pilot will then place two red flags on the vehicle and another flag at ten metres from either end of the vehicle but when the ten metres is not possible the flag should be placed at the maximum distance permissible from the end of the vehicle.”
[47] Mr Green for the Respondent contended that Mr Gottwald informed him in an interview directly after the incident that he had not chocked both the wheels in the prescribed manner as he was not stabilising the car; he was just determining whether another rail car could be shunted around the car he had left. He had no explanation as to why his co-worker had decoupled the tractor. 28
[48] Mr Green indicated that Mr Thorburn had informed him that he decoupled the rail car as he assumed the car had been stabilised. 29
[49] In Mr Green’s view, the Applicant breached CWI 17130 in that he:
[50] Mr Green further contended that the Applicant breached SPP 020 in that clause 6.3 requires that “park brakes must be checked for full application in addition to chocking for inoperative vehicles.” 31
CONSIDERATION
Section 652(3) of the Act states:
“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees);
[51] The evidence demonstrates that the shunting operation over which the Applicant was the pilot was halted at a point to determine whether another rail car could be shunted behind the rail car in question, if it was left parked at that point. When the operation was halted, the Applicant walked away from the rail car, and inspected the positioning of the car. On his own admission, he walked some 20-40 metres away from the rear of the train.
[52] The Applicant maintained that as he was standing at the rear of the rail car, the shunt driver emerged at the rear of the train.
[53] At this point, the rail car was left unattended as was the shunting tractor. The rail car was not chocked or under the air brake.
[54] It was the Applicant’s evidence under oral examination that he did not chock the wheels of the car when he parked it and reviewed its positioning. Nor did he move to chock the wheels and stabilise the car when the shunt driver emerged. Instead, he maintained that he only moved to chock one side of one wheel of the rear bogie once he had walked back to the rear of the train and conversed with the shunt driver. And even then, he did that only in response to his observation that the rail car was creeping slightly back down the decline. At this point, he stated under cross examination that he put in place the initial chock, then moved to put in place the further chocks and stabilisation measures when, in the process of so doing, the shunt driver, his co-worker, released the coupling at his own initiative, which caused the car to roll backwards.
[55] In such circumstances, what is the nature and the extent of the Applicant’s responsibility in the incident on 3 August 2007?
[56] Initially, it is necessary to consider the procedural responsibilities that fell reasonably upon the Applicant as a consequence of his experience and training.
[57] In my view the evidence in this matter demonstrates that the Applicant had been shunting at least since 2004, where-upon he had received his first accreditation. He had been ticketed twice since that time. The Applicant’s evidence was that he had shunted a few times a month since that time, and that on occasions he had conducted multiple shunts on any one day. On the day in question, 3 August 2007, the Applicant was to have conducted thirteen shunts. Even if he had not perhaps shunted regularly, as was claimed by the likes of his leading hand, Mr Price, the Applicant was an experienced shunter. 32
[58] The Applicant also attested to understanding the procedural responsibilities relating to shunting. He also was aware of the particularised procedures incorporated into the key work instructions and protocols (CWI and SPP). At the very minimum, the Applicant had these documents summarised to him at a tool box meeting, he received copies of both, and he was directed to read the same (which he claimed he did) stating “we always read papers”. 33
[59] The evidence, therefore admits that the Applicant was an experienced shunter who purported to be well informed about shunting procedures.
[60] What were the key responsibilities that fell upon him as a consequence of his training and the employer’s required behaviours when shunting?
[61] In this regard, it appears to me that it is tolerably clear that:
[62] Consequential of the final responsibility above, the Applicant stated that the task of the shunt driver is to stay in the shunt tractor and only act upon the command of the shunt pilot. The Applicant agreed that he was “in charge” and “in control” of the shunt and that the shunt included both the vehicle being shunted and the shunting tractor. 34
[63] In this regard, Mr Sheppard, an experienced shunter and witness for the Applicant stated that a shunt driver never leaves the shunt tractor until instructed and until the rail car is parked:
“Throughout the whole process the shunter does nothing but sit in the shunting vehicle and follow instructions from the pilot.” 35
[64] The Applicant himself held a similar view, when he said of the shunt driver’s appearance at the rear of the rail car:
“He should have never ever got off the tractor seat at all” 36
“He should have known better, not to be off the tractor seat.” 37
[65] Did the Applicant conduct himself in accordance with his procedural responsibilities, firstly in relation to securing an inoperative vehicle?
[66] Once the shunt driver ceases to be in control of the shunt vehicle, the rail car must be stabilised as it is no longer controlled externally and presents a safety risk. For procedural purposes, a rail car in such circumstances is taken to be inoperative, and must be stabilised. 38
[67] Indeed, the sheer necessity to secure the rail car when it is inoperative or stationary is for such a very reason, for example, that it might otherwise roll down an incline, which it was clearly attempting to do when the Applicant applied the first chock to the wheel of the first bogie. Alternatively, a hand brake may fail if a parked shunt tractor is left unattended and the rail car may roll under its own momentum.
[68] It is reasonably concluded that if the Applicant had acted to stabilise the inoperative vehicle at the time he parked it, the incident itself would not have occurred. That is, if the front and rear wheels of the front and rear bogies had been chocked (and\or the air brake applied), the jolt caused by the tractor decoupling would have been less likely to have caused the rail car to roll away under its own momentum.
[69] It appears to me that the evidence of both the Applicant (through Mr Sheppard) and that of the Respondent (through Mr Green 39) demonstrate that it is well understood that an unattended train (in the sense that the pilot has walked a considerable distance from it) connected to an unattended shunt vehicle is an “inoperative vehicle” and it must be stabilised in accordance with SPP 020 and CWI 17130. It can be nothing else, either as a matter of fact or as a matter of reasonable judgment in the circumstances.
[70] Further, there can be no difference in regard to the safety implications of not stabilising a train that is inoperative (in that it is temporarily parked) and where the shunt driver has vacated the shunt vehicle, and one that is inoperative and permanently parked. The SPP and CWI do not draw that distinction. The Applicant should not have drawn that distinction either. The overwhelming safety imperative is that the inoperative vehicle (and one that is left unattended) should have been stabilised.
[71] The Applicant’s persistent view, however, was that he did nothing to stabilise the rail car because the shunt had not finished (because he had not yet made the decision to park the car permanently at spot where it had stopped). 40 And he held this view irrespective of his appreciation that at the time he was making this decision, the shunt driver had left his tractor and the shunt vehicle was unattended.41 He also had no knowledge as to whether or not the brake on the unattended tractor had been engaged.42Indeed, and perhaps even more disturbingly, the Applicant claimed that he knew the brake on the shunt tractor was defective at the time of the incident.43
[72] In this context, the Applicant cannot be said to have conformed with his obligations under either the CWI or the SPP to secure an “inoperative vehicle”.
[73] Does the shunt pilot have a responsibility to regulate the shunt driver’s conduct when it is not compliant with the shunting procedures?
[74] The Applicant’s evidence was that whilst he was in charge of the shunt and he exercised authority over the actions of the shunt driver, 44he did not see that it was his position to tell the shunt driver what to do when the shunt driver breached the shunting protocols.45
[75] Indeed, the Applicant (when questioned by myself) accepted that as the shunt pilot he directed other co-workers to ensure the shunt was safely carried out:
“So does it require you to direct some people to do some things, like move away and get out of the train?---Yes, telling people who are inside the train to move out and if the manifest is on the side of the train and it's been signed, if somebody is there and it hasn't been signed out, you've got to chase up that person and get him to sign the manifest out before we can move the train or go any further with anything.
So sometimes people aren't doing the things they ought to be doing?---That's correct. You need to chase people up, yes.
Mr Gottwald, does that extend to telling the shunt driver that he should be in the position that the procedures intend that he should be?---Procedures?
Well, you appreciate I think - I think your evidence has been that the shunt driver should be located in the tractor? ---That's correct, he's supposed to be there at all times, yes.
When he's not doing that job, what should he be doing? ---When he's hooked the tractor, he should maintain his position in the tractor at all times. He should not leave the tractor.
So as the pilot operator, do you have any role in telling him, directing him, like you would direct others who aren't doing the appropriate thing, would you direct him to resume his seat and await your directions?---Resume his seat, yes, I suppose by rights I should have, you should say something like that, to resume his seat. I could possibly have gone and done that to Kelvin Thorburn. I don't think I would have liked his reply, though.” 46 [Emphasis Added]
[76] And under cross-examination by the Respondent’s representative:
“But in the circumstance here, this was clear cut, wasn't it? There was no debate over where he was supposed to be?---He was supposed to be in the seat of the tractor.
You were completely in the right in your view that he should have been in the tractor and he was completely in the wrong through being out of the tractor?
---That's correct. That's what the statement says.
So there was no room for any debate on that point, was there?---No.
No room for argument?---No. He's definitely in the wrong.
In those circumstances, you had every right to direct him to return to the tractor?
---I had every right, yes.
In fact, you had the responsibility to direct him to return to the tractor?--- I had the responsibility because I'm the shunt pilot, yes.” 47 [Emphasis Added]
[77] But why did the Applicant as the shunt pilot not direct the shunt driver to resume his seat upon observing his departure from the procedures? The Applicant’s evidence was varied. At one time, he felt it was not his position to do so. 48 At another time, he could not think “off the top of his head the words to use.”49 On another occasion, he claimed” you don’t go abusing your work mates.”50 Elsewhere he stated “it just wasn’t the thing to do.”51 And finally, he did not direct the shunt driver because he felt apprehension at the shunt driver’s personal response to such a direction, given that he had worked with him for some time.52
[78] The Applicant was the shunt pilot. He had responsibility for the shunt. He controlled the decision-making in relation to the entirety of the movement. He accepted authority as shunt pilot to direct employees in relation to all aspects of the shunt movement. The shunt driver, with whom he was intended to be in permanent and continuous communication directly or by radio when not in line of sight, was to work at the Applicant’s direction. The Applicant had an opportunity to direct the shunt driver. 53 But he did none of these things at the critical moment when the shunt driver appeared at the rear of the train, unseated from the tractor:
“But you see in a workplace environment where you're doing a ticketed job, if a person has control of a particular function you understand that it's your responsibility to take control?---It is my responsibility at all times, yes. I knew what the shunting pilot responsibilities are.
But you didn't exercise your responsibilities did you?---Not at that point I did not exercise my responsibility.” 54 [Emphasis Added]
[79] Further, it is not as if the Applicant’s conduct at the critical time was without ramifications in respect of the safety incident. If the shunt driver had remained seated, he would not have been able to act unilaterally in decoupling the rail car and the accident may have been averted. The Applicant seemingly agreed:
“So if you'd ensured that he stay in the tractor seat there'd have been no risk of him uncoupling the train would there?---If he would have stayed there? If he would have stayed there, yes.
Well, if you had required him to immediately return to the tractor seat there was no way he could have, from the tractor seat, uncoupled the train?---No. That would be a bit impossible.” 55
[80] Again, for much of these proceedings, the Applicant clearly did not give evidence that he appreciated the application of the Company’s safety procedures in circumstances such as this where his judgment (as shunt pilot) was, and might in the future have been called upon.
[81] The Applicant persisted over much the course of the hearing to assert that his conduct was not the cause of the safety incident:
“And if you were to go back to work at EDI Rail in Maryborough you would return with the firm belief that you were entirely innocent in relation to that incident?---I would believe that, yes.” 56
[82] Perhaps it might be observed that accidents are often the result of numerous otherwise unique conditions. That is, the theory of accidents 57, at least in its elemental stages of development, was largely predicated on the alignment of a number of pre-conditions which are more often than not out of alignment. But from time to time the pre-conditions for an accident come into perfect alignment, as they did in this situation.
[83] In this instance, a rail car was shunted near to the crest of a slight undulation in the track. It always had potential to roll forward. A rail car shunt pilot was inattentive to his prescribed role (or else ceded that role) and did not establish controls over the shunt vehicle driver or the shunt process. The shunt driver vacated his position on the shunt tractor. The parked vehicle was not stabilised. The shunt vehicle driver then acted unilaterally (to decouple the rail car) absent the shunt pilot’s normal control and intervention. The unsecured rail car rolled backwards. And thus the preconditions for an accident all came into alignment, and a safety incident, with potentially fatal consequences, unfolded.
[84] There is a hierarchy of causation.
[85] Of course, if the shunt driver had not decoupled at his own initiative, the incident would not have occurred, as the Applicant rightly claimed. This is the Applicant’s primary defence. But this is an incomplete causal explanation for the incident. The Applicant’s contributory conduct provided the essential preconditions to the accident taking place. This is because it created the very conditions that allowed the shunt driver to do as he did (to act unilaterally), and for it to have the consequences that it did (for the jolt to cause the as yet unsecured rail car to roll forward).
[86] As discussed above, had the shunt pilot assumed control over the shunt at all times, including sustaining near continuous radio communication with the shunt driver, the inclination on the part of the shunt driver to decouple at his own initiative would have been curtailed, or at least he would not have acted pending proper stabilisation being completed as advised by the shunt driver. By the Applicant’s own admission, in these respects he ceded control of the shunt (which the Company’s work procedures vested in him) because of his fear of his work mate’s reaction to his direction to resume his position in the shunt tractor.
[87] In my view, the Respondent deliberately created a climate of high concern for safety in shunting activities. It established detailed procedures, in relation to shunting, to give effect to that concern through training (formal accreditation) and tool box talks at which updates and reminders were distributed. Like any employer, the Respondent must trust ultimately that its employees will integrate these procedures, cues and signals into their judgments and daily behaviour in the workplace.
[88] In this instance, the Applicant, despite his experience and stated familiarity with the procedures, failed to control the shunt procedure (and to maintain near continuous communications with his shunt driver to impose that control). Further, he did not stabilise a vehicle that was unattended and inoperative. This conduct created the elemental preconditions for the incident itself, or else had an important contributory role therein.
[89] The consequent issue here is that the Respondent has lost the trust and confidence of the Applicant to exercise the appropriate judgment to work to in an environment in which heavy machinery movements of one kind or another are commonplace.
[90] In this regard, the statement of Mr Meiring for the Company captures the context as he saw it:
“We operate in a heavy industrial manufacturing environment. We operate many machines and conduct many processes which, if not performed safely, can pose a serious threat of injury or damage to property. All employees must adhere to safety procedures and exercise personal judgements concerning safety issues every day. I must be able to trust an employee to follow procedures. So must his co-workers. It is not possible to trust a person who is prepared to breach safety procedures or one who rushes or is forgetful. It is not possible, in an operation such as ours, to find a job for a person who exhibits these characteristics that completely quarantines him from situations where he must exercise personal judgment in safety matters. “ 58
[91] It was the Applicant’s responsibility to stabilise the rail car. The relevant CWI and the SPP makes this sufficiently clear. This is not a case in which procedures were uncertain, roles were ambiguous and training was inadequate. The Applicant was the shunt pilot. He was charged with stabilising the rail car and directing the shunt vehicle driver. He did not establish a control procedure over the shunt driver, who acted unilaterally absent those controls.
[92] Under cross-examination, the burden of responsibility in these regards began to emerge in the Applicant’s mind:
“But you said you weren't prepared to exercise control because, how did you put it, you didn't want to abuse a work mate?---Well, he was off the tractor and we've got to work - how would I say? I couldn't have - well, I suppose I - now what do I say to this? I couldn't just go, look, get back on the tractor and you shouldn't be here or something like that. I just couldn't think off the top of my head some words to use. It just wasn't the thing to do as far as I'm concerned, because I've worked with Kelvin in the stores for quite some time.
But you see in a workplace environment where you're doing a ticketed job, if a person has control of a particular function you understand that it's your responsibility to take control?---It is my responsibility at all times, yes. I knew what the shunting pilot responsibilities are.
But you didn't exercise your responsibilities did you?---Not at that point I did not exercise my responsibility.” 59 [Emphasis Added]
[93] In his interview with Mr Andrei Moore following the incident, the Applicant stated that he understood the requirements of shunting including stabilisation. 60 At this interview, the Applicant was said to have given as his reasons for not stabilising the rail car in accordance with procedure as him being “rushed” and “being slack or complacent”.61 This was challenged by the Applicant,62who instead claimed he stated it was “slackness” that caused the accident, but “slackness” was not on his part, but on the shunt vehicle driver’s part in alighting from the shunt tractor and de-coupling it without his (the shunt pilot’s) direct instruction.63 But the Applicant did concede he may have said to Mr Moore that he “rushed” the shunting job, and he did not relate this to his view of the shunt driver’s conduct.
[94] While this is the conduct that I have found the Applicant to have manifested, does it also warrant the termination of his employment?
[95] The Applicant’s conduct was not wilful. He did not set out to recklessly endanger the lives of others, and he did not come to work on 3 August 2007 intentionally to cause injury to others. That much is clear.
[96] The Applicant’s career with the company does not demonstrate any propensity in that regard. But his conduct was wilful in another sense; he intentionally refused to exercise his authority as shunt pilot over his work mate for fear of peer rejection. To avoid the personal censure of his co-worker, the Applicant ceded his control over the shunt as the shunt pilot and put the safety and lives of other employees at risk, not in a hypothetical manner, but in a very real and tangible way.
[97] Further, the Applicant has given evidence of an absence of reasonable judgment in situations in which safety procedures must be interlaced with practical circumstances. This was so in respect of his lack of appreciation that an unsecured and unattended rail car linked to an unattended shunt tractor is an inoperative vehicle for stabilisation purposes.
[98] Putting aside mitigating factors, which are considered below in the requisite statutory context of (s.652(3)(e) of the Act), it cannot be expected that the necessary relationship of trust and confidence between the employer and employee can survive such a dramatic incident caused by such a significant departure from the relevant work and safety procedures for the reasons as given, and where there is a continuing misapprehension of the circumstances in which safety procedures apply.
[99] In addition, the Applicant, in the last few weeks prior to the incident discussed above, had been involved in, and was the cause of, two unsafe crane operation incidents, which he does not deny. Both these incidents occurred on 17 July 2007 and caused the Company to stand him down from operating a crane, for which he held a ticket. 64
[100] If nothing else, these incidents ought to have sensitised him to the need to observe all protocols when working with heavy and potentially dangerous machinery. But those incidents did not have that effect and the Applicant went on only to give partial regard to the Company’s safety procedures when shunting.
[101] Further, the Respondent had taken considerable and recent efforts to train and increase the awareness of employees as to safety requirements, and particularly so in relation to shunting procedures. The Applicant had been ticketed twice since 2004, on his own evidence. 65
[102] Section 652(3)(a) of the Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”. It appears to me that the kind of conduct exhibited by the Applicant is the kind of conduct that is intended to be captured by the Act. That is, the kind of conduct that is relevant need not only be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy. Apart from its other characteristics, the Applicant’s conduct in this matter was conduct of this kind.
[103] It is for these reasons, taken together, that I have concluded that the Respondent had a valid reason for the termination of the Applicant’s employment.
[104] Of course, such a finding itself is not determinative of the wider statutory determination which must be carried out in these regards. It is but one matter to which the Commission must have regard in determining whether the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[105] For reasons of completeness, I add that there was some submission in passing in this matter that a mechanical fault on the shunt tractor may have played some role in the cause of the incident. There was no evidence introduced into the proceedings in this regard. 66 In any event, such a concern may serve only to reinforce the necessity for the shunt pilot to exercise control over the shunt at all times and to stabilise any inoperative vehicle.67
(b) whether the employee was notified of that reason
[106] The Applicant was interviewed on three occasions (once on 3 August 2007 by Mr Green and twice on 15 August 2007 by Mr Moore). He also provided a witness statement, and was afforded an opportunity to amend that statement. These were the elements of the incident investigation that followed the incident. A fourth interview took place, this was the termination interview conducted by Mr Meiring on 16 August 2007.
[107] Was the Applicant notified of the reason for which he was being terminated?
[108] It was unavoidably within his knowledge that the issues that preoccupied his employer were the issues that arose out of the incident. The Applicant’s conduct was questioned in detail about the structure, as it were, of the incident and his and his co-worker’s respective roles therein.
[109] But that said, there is nothing in these processes carried out by the Respondent that clearly articulates what the Applicant stood accused of. For the Respondent, that is Mr Green and Mr Moore, 68the interview processes yielded information from which they identified breaches of company policy which enabled them to draw conclusions about the disciplinary measures that might apply to the Applicant. Mr Meiring, at one instance at least, referred to the process in his evidence as a “disciplinary investigation”.69 But for the Applicant himself, the processes remained merely investigatory in nature and concerned information gathering. He was not directly accused of anything, and he did not assume that he was in a disciplinary process as a consequence.
[110] At the final meeting on 16 August 2007 at which the Applicant’s employment was terminated, the Respondent did not put to him the particulars of the non-compliance with company procedures that were alleged. Mr Meiring stated at that time that he said:
“The Company has concluded that that there has been gross negligence on your part for not following Company policies, procedures and guidelines and not working in a safe manner. Can you give any other reason why the Company should not terminate your employment immediately?” 70
[111] While the Applicant knew the Respondent continued to investigate the cause of the safety incident, he did not through that investigatory process come to know of what he was accused personally. Indeed, his subjective view maintained throughout the interview process was that it was the conduct of his co-worker who was responsible for the incident, not himself. And other questioning about the circumstances in which chocking should take place were requests for information and unrelated to any express allegation or accusation in relation to his own actions.
[112] In such a context, while Mr Meiring articulated the Respondent’s conclusions (as given above), and in so doing gave two interrelated reasons for the termination, the Applicant was unaware of what particulars sat behind those globalised allegations, as much as he was unaware of what he was accused. Indeed, to this point, he had been accused personally of nothing in any substantial sense. To be sure, Mr Moore made reference in his interview with the Applicant to the Applicant having acted to jeopardise the safety of other employees, but there was no clear explanation of what this meant in respect of the Applicant’s own actions. This is why the Applicant, in response to this allegation, thought it might have related to his conduct in trying to throw a chock under the rail car wheel, or else it was a consequence of the accident itself. 71
[113] The notice given to the Applicant of the reasons for the termination was therefore ineffective as it had no concrete meaning to him in that he was unable to relate it to any concrete indiscretions for which he was accountable.
[114] Generally, the reason for this is that the interview process morphed into a disciplinary process for the Respondent. This meant that the Respondent evaluated the evidence yielded through the investigation and then reached certain conclusions about the Applicant’s conduct.
[115] But the Applicant’s experience of the interview process was quite different: it was no more than a detached investigation aimed largely at exposing the structure of the incident, and he was not informed of or involved in the process by which the disciplinary conclusions were reached about his own behaviour. Further, where issues of misconduct did arise, they were generally targeted at his co-worker’s conduct, not his own accountabilities. Indeed, it appears only at the hearing does an alternative model of causation come to be put to the Applicant, and only at this point (in the hearing) does he come to reflect on his own contributory conduct, albeit it only in passing:
“MR MURDOCH: I thought you didn't concede any errors. What errors did you make?---As far as I'm concerned in the shunting area at that time none, or only one that you've seemed to have stressed, that I should have told Kelvin Thorburn to get back on the tractor.” 72
[116] I say this mindful that the Applicant, while he had been stood down from shunting for the duration of the investigation process was nonetheless required by his employer to complete a shunt the day following the incident. 73 Further, the interviews with Mr Moore which were held shortly before the Applicant’s employment was terminated, took place approximately 2 weeks after the incident itself. In such further circumstances, it is difficult to conclude that the Applicant was incidentally or impliedly aware of what he stood accused, and therefore notified of the particular reasons for the termination of his employment. He was notified instead, of two reasons, neither of which had any explicable resonance to him.
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[117] The Applicant, as part of the investigatory process, was interviewed three times as to his version of the events and asked to provide a witness statement. He was also provided a further opportunity to amend that witness statement if he so desired.
[118] At the final interview (a fourth interview) the Applicant, in the company of his witness, Mr Sheppard, was invited, in the terms mentioned above, to respond to the reasons for the termination of his employment as given. That is, he was provided one purpose-specific opportunity to respond to the allegations as put to him. Mr Meiring, at that time, stated that he sought the Applicant’s views as to why his employment should not be terminated for “gross negligence […] for not following Company policies.” 74
[119] The Applicant states that “I recall being offered the opportunity to respond to my employment being terminated […].” 75
[120] I accept Mr Meiring’s evidence, given with some care and clarity of recollection, that the decision to terminate the Applicant’s employment was not brought to finality before such time as the Applicant had been given an opportunity to respond to the reasons for his termination.
[121] The Applicant gave no reasons in response (despite the investigatory process and the passage of some two weeks since the incident). He appears not to have queried anyone or anything, and sought no additional time to consider his response.
[122] The Applicant claimed to have been shocked by the decision to terminate his employment. 76 This may explain his withdrawn response to the opportunity he was provided, though he had also drawn other conclusions as well, at his own initiative that caused him to not respond to his employer. One of these conclusions was that the Respondent had made up its mind to terminate his employment and responding to the allegation as put would have been futile.77
[123] In such circumstances, can it be said that the Applicant was provided an opportunity to respond to the reasons for the termination of his employment?
[124] It appears to me that despite the interview process the Applicant was not at any time aware of the relationships between the severity of the incident, his personal conduct during that incident, and his security of tenure as an employee. The Applicant simply had no idea as to what he stood accused. 78 His own causal explanation of the accident had been expressly unchallenged over the interview process, which is discussed above.
[125] That is, he did not realize that he stood accused of causing the incident and he did not appreciate, consequentially, that his employment was in jeopardy. As explained above, this may be because the investigatory process did not make mention of this, and a period of two weeks had passed since the incident, during which he had again shunted a rail car and was unaware that he had been stood down from shunting generally. This would explain the Applicant’s shock at being informed that he now had to give reasons why his employment should not be terminated.
[126] I cannot explain with any certainty why the Respondent represented the disciplinary process as a benign incident investigation to the Applicant. It may have done so as a conflict-averse disposition on its part. Whatever the reason, the approach gave rise to communication differences between the parties.
[127] Whether or not the Applicant may have intuitively been aware that some measure of discipline might have been likely given the severity of the safety incident, this cannot consequently mean that he knew what it was to which he had to respond. I have discussed this above in relation to whether or not the Applicant was notified of the reason for the termination.
[128] It appears to me that the Applicant was given an opportunity to respond to a reason for the termination of his employment about which he had no knowledge or prior awareness. Consequently, he was unable to respond meaningfully and the opportunity to respond was unable to be acted upon. Such circumstances do not, in my view, give effect to the statutory prescription at s.652(3)(c) of the Act.
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination
[129] There is some undeveloped debate between the parties as to whether the focus of this matter concerns the conduct or the performance of the employee of his duties. 79 This particular provision, so far as it refers to whether warnings have previously been provided, appears premised on some on-going performance issues about which an employee had prior opportunities to remedy, but having failed to do so sufficiently, have culminated in the decision to terminate the employee’s employment. This is not the case here. There was a significant incident in which the Applicant’s conduct fell under scrutiny. All issues flow from this incident.
[130] If I were to be pressed to determine whether the Applicant received no warnings about his “performance” (a term which I do not believe is applicable in these circumstances), regard must then be had then to two very recent prior incidents (both on 17 July 2007) in which the Applicant caused damage to a crane and other property for reasons of “forgetfulness” and “hurrying”. 80
[131] It would appear reasonable that in such a context, in which the Applicant was stood down from crane duties (and remained so up to the point of the termination of his employment), the Applicant might have had a much closer regard to the need for strict compliance with procedures and due care when operating heavy machinery. The Applicant signed both reports in relation to the crane incidents.
[132] In this context, so far as it is claimed that it was the Applicant’s “performance” of his duties and not his conduct that is the subject of this inquiry, it must be concluded that he was warned, in effect, and consequently ought to have had a sharp appreciation (in the period leading up to the above described incident) about his employer’s concerns with the quality of his work performance.
[133] I note in this regard that the Applicant characterised the verbal instruction on 17 July 2007 (to cease driving the crane) as a warning about his performance. 81
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[134] The size of the employer’s undertaking, establishment or service did not impact upon the procedures it followed in effecting the termination of the Applicant’s employment.
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[135] The dedicated human resource management specialists or expertise in the employer’s undertaking, establishment or service did not impact upon the procedures it followed in effecting the termination of the Applicant’s employment.
(g) any other matters that the Commission considers relevant
[136] The Applicant was a long serving employee of the Company, who had worked with it for some 22 years. But for the incidents in July and August 2007, the Applicant’s work record appears to have been unblemished in any substantial way. I have had regard to this in reaching the decision below.
[137] The Applicant is also a 59 year old male living and working in an area, so it was claimed, with limited permanent employment opportunities. The Respondent contested this claim, arguing instead that the population centres of Harvey Bay and Maryborough did not exhibit high unemployment rates for males in the Applicant’s age cohort. 82
[138] Be this as it may, the effect (“emotional trauma”) of the termination of employment on a long standing employee reasonably might be taken to be significant and may make the transition to new employment difficult. So much was the part rationale for the expanded severance pay entitlements provided by the 2004 Full Bench in the Termination, Change and Redundancy test case, as it was. 83 Though considered in a redundancy context, those circumstances appear to be equally, if not more applicable in the context of a termination of employment where no severance payments are made.
[139] It was argued further on the Applicant’s behalf that the decision to terminate the Applicant’s employment was harsh and disproportionate to the gravity of the conduct complained of. The Applicant’s behaviour was not wilful, he was not exclusively responsible for the incident, and the Company, on its own outline of disciplinary procedure, should have dealt with the Applicant at a lower level (for example, counselling or a warning) than it did (termination of employment). 84
[140] It is true that the Company could have elected to impose a lesser sanction upon the Applicant. It did not do so. However, nothing in its disciplinary procedures precluded it from acting as it did. The Company’s disciplinary procedures provide guidance and examples to local decision makers, but they are not rigid and prescriptive. The Company’s view was that the incident of 3 August was of such significance for the company’s safety procedures, and the extent of the Applicant’s departure from the prescribed procedures so great, that it could no longer reasonably risk the Applicant’s continued employment in its particular work environment. It was an incident of a high order and the conduct that caused or contributed to it was of a very serious nature and should rightly have attracted the consideration of the extreme levels of the applicable disciplinary regime.
[141] Such a conclusion was underscored by the earlier incidents involving the Applicant in relation to crane movements some three weeks prior.
[142] In such circumstances, I am not of the view that Responded acted disproportionately to the gravity of the actual circumstances.
[143] Given that, for all practical purposes, would it have made any difference if the Applicant appreciated the detail of the Respondent’s thinking about his contributory role in the safety incident?
[144] It does not appear to me that given the nature of the misconduct that I have found, there would have been a strong likelihood of a different outcome emanating from a more procedurally rich process. But I should not be dismissive of that potential given the apparent open-mindedness of the employer to consider all issues before reaching a final decision (which is discussed below).
[145] The Applicant’s own position during cross-examination was equivocal in relation to whether or not he could have put any new explanatory context to his employer if was provided with a more complete opportunity to do so. 85
[146] Because the Applicant was unable to respond to the decision to terminate his employment, he was unable to put to his employer any cogent defence of his actions, or any comments in mitigation which might have persuaded his employer to act differently. The Applicant did not know what he had done to warrant the termination of his employment, and he was shocked as he had not expected this outcome from the interview, but only “a rap over the knuckles”. 86
[147] As said above, on the Applicant’s own evidence, there does not appear to have been any likelihood that he could have defended his actions directly. When the particular issues were put to him in cross-examination, he had no explanatory counter argument. 87
[148] As a consequence of these proceedings and the cross-examination, the Applicant did admit after having had the benefit of an explanation as to how his conduct had deviated from the required safety procedures, that he had made some errors. 88 By the Applicant admitting to some errors, this may have suggested in his employer’s mind that there was some potential scope for rehabilitation and capacity for remorse, neither of which were before the employer at the time of the termination of the Applicant’s employment.
[149] It is speculation on my part that such information may have swayed the employer. But I note that, Mr Moore, for example, admitted on his evidence that he initially was of the view that there might be disciplinary consequences of the investigation for the Applicant, short of terminating his employment. 89 Mr Neville Price was also of the view initially that the Applicant should be given a final warning.90 And Mr Meiring, for his part, gave evidence he had not made up his mind to terminate the Applicant’s employment until after he had given his (non) response to the allegations. That is, he indicated that he wished to give the Applicant “a last chance to talk and explain if there was anything else I didn’t know of.”91
[150] Feasibly, taking into account the above matters, along with the long period of service (some 22 years) and the fact that the conduct was not wilful, another result may have emanated, arguably, from the final interview.
[151] I cannot say, however, that the Applicant would have also brought to his employer’s attention the impact of the ill–health and death of his father, which overlapped with the period July 2007 – September 2007. 92 This was not referred to in the Applicant’s statement and only arose in the course of the proceedings.
[152] Yet it is not impossible that, reflecting upon the precise reasons why his employer now sought to terminate his employment, that the Applicant might have been motivated to explain his personal circumstances at the time, even if those circumstances did not appear (on his own evidence over these proceedings) to impact upon his conduct on 3 August 2007. Arguably, such personal circumstances, which were most intense over the period July – September 2007, may have provided some further context for the Respondent’s decision making.
CONCLUSION
[153] I am required in this matter, once having had regard to the matters at s.652(3) of the Act, to determine, on balance, whether the termination of the Applicant’s employment was harsh, unjust or unreasonable. In so doing, I also need to have regard to the statutory injunction as to ensure my decision in this regard provides for a “fair go all around” (see s.635(2) of the Act).
[154] In this matter, my judgment is finely balanced. This is because the Respondent established a valid reason for the termination based on the absence of trust and confidence in the Applicant’s conduct, and his ability to work safely in a heavy manufacturing environment. I have found also, amongst other things, that the decision to terminate the Applicant’s employment was not disproportionate to the gravity of the matters about which he stood accused, eventually.
[155] But there are a number of matters that provide some counterweights upon my judgment. Some of these include:
[156] The opportunity to respond to the recognisable reasons for his termination might arguably have had meaningful use for the Applicant and feasibly might have affected the judgment made by the employer who would then have been fully informed of all of the circumstances.
[157] Such an opportunity would have enabled the Applicant, arguably, to demonstrate contrition, to display his scope for rehabilitation and re-education in relation to the application of the procedures, to explain the absence of wilfulness on his part, and possibly as well the contextual circumstances he then faced in relation to his father’s illness, all in the known context of an employee who had over 22 years of continuous service with the employer.
[158] Though in saying as much, I consider this particular matter to be a somewhat fragile proposition given my findings on the Applicant’s conduct.
[159] In the High Court’s judgment in Byrne and Frew v Australian Airlines 93 the Court provided guidance on the meaning of the expression "harsh, unjust or unreasonable", as it stood in an award context.
[160] In that judgment McHugh and Gummow JJ said:
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 94
[161] Considering all of the above circumstances, I am of the view that the termination of the Applicant’s employment, on balance, was harsh, unjust and unreasonable. I see little point in attempting to deconstruct the statutory provisions in this regard (as to whether the decision is harsh more than unreasonable etc). Their Honours observed that these are terms that all imply overlapping concepts, and, indeed, they may each have some definitional plasticity of their own.
REMEDY
Section 654 of the Act reads as follows:
“(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (7) if it has determined that the termination was harsh, unjust or unreasonable.
(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
that the remedy ordered is appropriate.”
[162] In Henderson v Department of Defence, 95the Full Bench considered the manner in which the statutory injunctions in the former Act, particularly in relation to s.170CH of that Act. The provisions are unaltered in the current Act and the Full Bench’s decision remains salient for that reason. In respect of the approach to making orders for purposes of remedy the Bench stated as follows:
“It is clear from the terms of s.170CH(6) that, in determining the question of remedy, the Commission must first consider reinstatement.
“It is equally clear that, in making a decision as to remedy, the Commission is obliged to consider each of the matters listed in s.170CH(2) and to treat them as matters of significance in determining whether any and, if so, what remedy is appropriate. Section170CH(2) is expressed in mandatory terms. The Commission cannot make an order for a remedy unless it is satisfied that the remedy is appropriate and, in determining whether or not a remedy is appropriate, the Commission is required to have regard to the matters prescribed in paragraphs (a) to (e) of that sub-section. However, as is the case with determining under s.170CG(3) whether or not a termination of employment is "harsh, unjust or unreasonable", the Commission, in determining under s.170CH, whether or not a remedy is appropriate, is only required to have regard to these matters in so far as they are applicable or are relevant to the particular circumstances of the case.
“This does not mean that, in every case in which the Commission decides to order an amount in lieu of reinstatement, the matters referred to in s.170CH(2) would require examination at least three times - once in deciding that reinstatement was not appropriate, once in deciding an order in lieu of reinstatement was appropriate and once, because of the repetition of those matters in s.170CH(7), in determining the amount to be ordered. In determining a remedy, reference would only need to be made to those matters once. All that s.170CH(2) requires is that the Commission must not make an order unless it is satisfied that the remedy is appropriate having regard to the matters specified in that sub-section. To adopt the words of Moore J in Edwards v Giudice and Others, each of the matters "must be treated as a matter of significance" in the decision as to which remedy (or combination of remedies) is appropriate. Having regard to those factors, the Commission would determine whether reinstatement was the appropriate remedy and, if not, whether a payment in lieu of reinstatement should be ordered.” 96 [Footnotes removed]
[163] In light of this, I must decide at this point which remedy is appropriate having regard to the matters stipulated at s.654(2) of the Act. I now do so.
[164] In respect of s.654(2)(a) of the Act, in assessing the impact of any order on the viability of its undertaking, there is nothing before me that would cause me to resile from a prospective course to make an order of any kind, or to proceed with some particular caution in light of the employer’s particular circumstances. I reach this decision on the basis of the prospect of the order affecting adversely the capacity of the Respondent to effectively remain in business.
[165] The Applicant was employed with the Respondent continuously for 22 years. This is a lengthy period of time, absolutely or relatively. It suggests to me, taken in isolation, that I should make an order that retains the employee’s employment, in one capacity or another.
[166] In respect of s.654(2)(c) of the Act, I do not anticipate that the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated, would have been a great amount. This is because the Applicant’s employment would not in all likelihood have continued for any lengthy duration.
[167] The Applicant’s employability was diminished by the safety incidents between July and August which had seen him stood down from crane driving and it is unlikely he would have shunted again in the foreseeable future at least. That is, the value of his skills set to the employer was compromised in significant ways. Further, and arguably more importantly, his employer’s trust and confidence in his ability to work safely (in respect of his own safety as well as that of others in the workplace) in a heavy manufacturing environment also had been compromised. I have explored this in detail in relation to my considerations above. I again indicate that the broad context in this regard was captured by Mr Meiring’s statement as follows:
“We operate in a heavy industrial manufacturing environment. We operate many machines and conduct many processes which, if not performed safely, can pose a serious threat of injury or damage to property. All employees must adhere to safety procedures and exercise personal judgements concerning safety issues every day. I must be able to trust an employee to follow procedures. So must his co-workers. It is not possible to trust a person who is prepared to breach safety procedures or one who rushes or is forgetful. It is not possible, in an operation such as ours, to find a job for a person who exhibits these characteristics that completely quarantines him from situations where he must exercise personal judgment in safety matters. “ 97
[168] These findings, which are buttressed by my findings above in respect of s.652(3)(a) of the Act, suggest I should not make an order for reinstatement.
[169] The remuneration the Applicant would have received as an employee had he not been terminated, would have been at the low end of the scale. These are not strong reasons for making an order for an amount to be paid in lieu of reinstatement.
[170] In respect of s.654(2)(d) of the Act, did the Applicant mitigate his losses?
[171] The Applicant was not active in seeking alternative employment or in seeking social security. Very shortly after his employment was terminated he sought a number of positions by other companies that operate as joint venture partners at the same site in which the Respondent operates. In addition, the Applicant has undertaken some casual work for a period of 14 days as a tiler. 98 But beyond this, he has not sought to mitigate his circumstances. It was argued that personal reasons (the continuing illness of his father and his subsequent death in September 2007) made it difficult for him to do this. The Applicant also contended he never received an employment separation certificate from his employer (though his employer contended that this was mailed to him and this issue was rectified at the Hearing). He did not pursue this issue with his employer following his employment. Arguably, though, the death of the Applicant’s father may have been an influential factor in this regard, though as a matter of evidence I cannot safely so conclude.
[172] As best as I can judge, this matter is of neutral consequence for my judgment as to whether to make an order of any of the four classes of remedy that are available to me. 99 I am not able as a matter of evidence to affirm positively that the Applicant failed to mitigate his losses.
[173] In respect of s.654(2)(e) of the Act, there are other matters to which I have had regard in relation to whether or not I should make an order for a particular remedy. Generally, they are matters discussed at s.652(3)(b), s.652(3)(c) and s.652(3)(e) of the Act above. The matters, considered in isolation, suggest to me that it would be appropriate for me to make an order of any of the four classes that are available to me.
[174] Having had regard to s.654(2) of the Act, what order should I make of the four classes available to me?
[175] Section 654(3) of the Act reads as follows:
“If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:
(a) reappointing the employee to the position in which the employee was employed immediately before the termination.
(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.”
[176] As discussed above, the Applicant has been found to have departed significantly from the required shunting procedures and to have not exercised appropriate judgment in the circumstances. I have found this conduct to have caused or contributed to a heavy vehicle incident that jeopardised his own safety, along the safety of others in the workplace. Along with a number of other incidents, this has caused the Respondent to lose trust and confidence in the former employee’s capacity to function responsibly and with due awareness in a heavy manufacturing environment. The evidence that I have considered at s.652(3)(a) of the Act supports these conclusions.
[177] In view of this, and having had regard to the matters at s.654(2) of the Act as matters of significance, I do not find that it is appropriate to adopt either of the courses open to me for purposes of s.654(3)(a) and s.654(3)(b) of the Act. I am not satisfied that the Applicant can any longer work safely (in respect of his own interests or those of others) in a heavy manufacturing environment.
[178] Section 654(7) of the Act reads as follows:
“If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.”
[179] Having regard to the matters discussed above at s.654(2) of the Act, I consider that it is appropriate in all the circumstances to make an order requiring the employer to pay the employee an amount in lieu of reinstatement. But before I determine that amount I must (along with any other relevant matters) have regard to each of the matters stipulated at s.654 (8) of the Act.
[180] The Full Bench in Henderson v Department of Defence, cited above, makes it clear that the Act makes this course a mandatory step on the way to determining an amount in lieu of reinstatement, and the reason for so doing should not be confused with the consideration given to the same matters for purposes of s.654(1) and s.654(2) of the Act:
“It is correct that, if the Commission decides to order an amount in lieu of reinstatement, regard would have to be had to the same matters for the purpose of determining the amount to be ordered. But that involves having regard to these matters for a different purpose. In s.170CH(2) the purpose of the inquiry is to ascertain which remedy or remedies, if any, are appropriate. In s.170CH(7) the purpose of the inquiry is to ascertain the amount to be awarded in lieu of reinstatement. If it were otherwise s.170CH(7) would be redundant.”
[….]
“The Commissioner was obliged to give reasons for his decision. There is no doubt that he did so. It is clear from those reasons that the matters identified in s.170CH(2)(a), (c) and (d) were not specifically referred to by the Commissioner in the operative part of his decision on remedy. While the Commissioner did not mention the circumstance referred to in s.170CH(2)(b) in his decision on remedy, the respondent submitted that it is enough that the Commissioner referred to that circumstance - the length of the appellant's service - in determining the amount to be ordered in lieu of reinstatement. As we have already indicated, the nature of the inquiry is different when s.170CH(7) is applied. A duty to take a matter into account in deciding whether a remedy of a particular type is appropriate cannot be discharged by taking that matter into account in determining the amount to be ordered. It follows that separate consideration should have been given to the circumstance in s.170CH(2)(b), in so far as such circumstance was relevant or applicable, in deciding which remedy is appropriate.” 100 [Emphasis added] [Footnotes removed]
[181] In view of this, I now have regard to s.654(8) of the Act.
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service
There is no evidence that an order I might make might have an effect on the viability of the employer’s undertaking, establishment or service.
(b) the length of the employee’s service with the employer
[182] The employee’s employment was for a period of 22 years. This is a period of time that warrants making an order of payment in lieu of reinstatement that gives weight the extended duration of the Applicant’s employment with his employer.
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated
[183] The Applicant’s conduct as found in these proceedings was such that there was little likelihood that his employment would have continued for a very lengthy period at all. The Applicant was already stood down from crane duties (for which he held a ticket) and, as a consequence of his conduct on 3 August 2007, the Applicant’s capacity to function safely within a heavy manufacturing environment, and with the requisite degree of awareness, had been very seriously compromised in his employer’s eyes. The Applicant’s employability with this particular employer, for all practical and safety purposes, was nearing an end, regardless of the decision taken to terminate his employment on 16 August 2007. That is, the relevance of the Applicant’s skills profile had been diminished by the forced reduction in his crane duties and he was a person in whom his employer had reasonably come to view as a safety risk in its particular environment (following the events of 3 August 2007).
[184] In my view, the Applicant’s employment is likely to have extended no more than a further two months. I do not have before me the Applicant’s earnings. I would not have deducted for reasons of contingencies, any amount I otherwise would have calculated in this regard as the time period in consideration is too short.
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination
I have discussed this matter above in respect of s.654(2)(d) of the Act and my observations there are pertinent here, in respect of s.654(8)(d) of the Act.
(e) any misconduct of the employee that contributed to the employer’s decision to terminate the employee’s employment
My findings for purposes of s.652(3)(a) of the Act demonstrate that the Applicant was directly the cause of or else a significant contributor to the rail car collision on 3 August 2007. The Applicant therefore contributed in a material way to the employer’s decision to terminate his employment. Consequently, in my view, any remuneration I should consider the employer paying the Applicant in lieu of reinstatement should be an amount that takes account of the Applicant’s misconduct.
(f) any other matter that the Commission considers relevant
[185] I have had regard to the economic effect of the termination upon a person of the Applicant’s circumstances. These are likely to be at the more extreme end of the spectrum. I have also considered the matters I discussed above in relation to s.652(3)(b), s.652(3)(c) and s.652(3)(e) of the Act.
CONCLUSION ON REMEDY
[186] In my view, having regard to all these circumstances, the Respondent should be ordered to pay the Applicant 3 weeks salary (subject to taxation) in lieu of reinstatement. An order to this effect will issue contemporaneously with this decision. I leave for the parties the calculation of the quantum in monetary terms. I do not anticipate this to be a matter of controversy.
[187] There is no submission before me that requires any consideration of s.654(13) of the Act, as it relates to payment of the above required amount in instalments, nor would one be expected given the employer’s circumstances.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
For the Applicant: Ms Melissa Keily, Construction, Forestry, Mining and Energy Union
For the Respondent: Mr Jim Murdoch of Counsel, instructed by Franklin Athanasellis Solicitors
Hearing details:
Hervey Bay, 21, 22, 23 November 2007
Printed by authority of the Commonwealth Government Printer
<Price code G>
1 Affidavit of Colin Henry Gottwald at PN4
2 Statement Allenby Charles Meiring at PN35
3 Statement of Neville Edward Price at PN26 and Statement of Scott Andrew Blackley at PN7
4 Statement of Allenby Charles Meiring at PN35and Statement of Kristen Green at PN64
5 Statement of Milton Eric Cunningham at PNS7 and 16-18 and Statement of Scott Andrew Blackley at PN5
6 Transcript of Hearing on 21 November 2007 at PN610
7 Annexure CG1 Affidavit of Colin Henry Gottwald
8 Affidavit of Colin Henry Gottwald at PNS5-11
9 Transcript of Hearing on 21 November 2007 at PNS470-491
10 Affidavit of Colin Henry Gottwald at PNS28-29 and PNS32-33
11 Ibid at PNS34-37
12 Statement of Milton Eric Cunningham at PN14
13 Statement of Allenby Charles Meiring at PNS17-19
14 Statement of Allenby Charles Meiring at PN22 and Statement of Kristen Green at PN51
15 Ibid at PN52
16 Statement of Kristen Green at PN46
17 Affidavit of Ross Melville Sheppard at PNS28-30
18 Ibid at PN32
19 Statement of Robert Schofield at PNS18-21
20 Affidavit of Allenby Charles Meiring at PN13 and Exhibit ACM6 to Statement of Allenby Charles Meiring
21 Statement of Kristen Green at PNS15-18, Statement of Stephen John Barnes at PN7 and Statement of Robert Schofield at PNS16 and 21
22 Statement of Stephen John Barnes at PN9 and Statement of Neville Edward Price at PN10
23 Affidavit in reply of Colin Henry Gottwald at PNS5-7
24 Transcript of Hearing on 21 November 2007 at PN486
25 Ibid
26 Exhibit SJB2 to Statement of Stephen John Barnes
27 Ibid
28 Statement of Kristen Green at PN49, see discussion at footnote 54 below
29 Ibid at PN50 and Exhibit KG12 to Statement of Kristen Green
30 Statement of Kristen Green at PN53, 60 and 61
31 Ibid at PN54
32 Transcript of Hearing on 21 November 2007 at PN404
33 Ibid at PNS467-494 and Affidavit in reply of Colin Henry Gottwald at PN5-7 and Exhibit NP7 to Statement of Neville Edward Price
34 Transcript of Hearing on 21 November 2007 at PN301, PN559, PNS560-561 and PN605
35 Affidavit of Ross Melville Sheppard at PN31
36 Transcript of Hearing on 21 November 2007 at PN143
37 Ibid at PN145
38 Evidence of Ross Sheppard in Transcript of Hearing on 22 November 2007 at PNS1161-1163, see also CWI17130
39 Transcript of Hearing on 22 November 2007 at PN1552
40 See for example Transcript of Hearing on 21 November 2007 at PN293-297
41 Ibid at PNS297-298
42 Ibid at PNS287-288
43 Transcript of Hearing on 22 November at PNS828-829
44 Transcript of Hearing on 21 November 2007 at PN562 and PN605
45 Ibid at PN146
46 Transcript of Hearing on 22 November 2007 at PNS924-929
47 Ibid at PNS938-943
48 Transcript of Hearing on 21 November 2007 at PN145 and PN161
49 Ibid at PN562
50 Ibid at 551
51 Transcript of Hearing on 21 November 2007 at PN562
52 See Transcript of Hearing on 22 November 2007 at PN929 (as cited above).
53 Transcript of Hearing on 21 November 2007 at PN341
54 Ibid at PNS563-564
55 Ibid at PNS571-572 and see the Transcript of Hearing on 22 November 2007 at PNS 924-929. It was the Applicant’s evidence that both he and Mr Thorburn saw the rail car move slightly while they were standing at the rear of the car. If this was the case and Mr Thorburn saw the rail car move at this stage, then presumably he would have known that the rail car had not yet been stabilised by the Applicant. He would also have seen the Applicant move to chock the rear wheel as he walked passed him on his way back to the front of the train, where the tractor was coupled. And he would also have known the airbrakes were not applied (as he would have walked pass the airbrakes as he passed the Applicant who was still in the throws of the initial chocking of the rear bogie). It seems most peculiar that Mr Thorburn, knowing that the rail car was not stabilised, nonetheless walked to the front of the rail car and uncoupled it from the tractor. But as Mr Thorburn was not called in this matter, this is a matter that will remain unresolved for purposes of these proceedings and I am unable to reflect any further on the reliability of the Applicant’s evidence.
56 Ibid at PN606
57 There are two seminal works by Reason, J. (1990) Human Error, Cambridge University Press, Cambridge,
Reason, J. (1997) and Managing the Risk of Organizational Accident, Aldershot: Ashgate which have influenced accident investigation approaches, particularly in the airline industry.
58 Statement of Allenby Charles Meiring at PN56
59 Transcript of Hearing on 21 November 2007 at PN562-564
60 Statement of Andrei John Moore at PN21, PN33 and PN38
61 Ibid at PN22
62 Affidavit in reply of Colin Henry Gottwald at PNS22-24
63 Ibid at PN25
64 Transcript of Hearing on 21 November 2007 at PNS344-386 and Exhibit ACM8 and ACM9 to Statement of Allenby Charles Meiring
65 Transcript of Hearing on 21 November 2007 at PN397, PN397 and PN405
66 Transcript of Hearing on 23 November 2007 at PN1811
67 Transcript of Hearing on 21 November 2007 at PNS287-288
68 For interviews with Mr Moore see Statement of Andrei John Moore at PNS15-41, PNS57-64 and for interview with Mr Green see Statement of Kristen Green at PNS48-49
69 Transcript of Hearing on 22 November 2007 at 1411
70 Statement of Allenby Charles Meiring at PN49
71 Transcript of Hearing on 21 November 2007 at PNS712-717
72 Ibid at PN609
73 Affidavit in reply of Colin Henry Gottwald at PNS11-15
74 Statement of Allenby Charles Meiring at PN49
75 Affidavit in reply of Colin Henry Gottwald at PN33
76 Affidavit of Colin Henry Gottwald at PN71
77 Affidavit in reply of Colin Henry Gottwald at PN34
78 Transcript of Hearing on 22 November 2007 at PNS898-899
79 Compare Transcript of Hearing on 23 November 2007 at PNS1754-1755 with 1799-1782
80 Exhibits ACM8 and ACM9 to Statement of Allenby Charles Meiring
81 Transcript of Hearing on 22 November 2007 at PNS854-855
82 Statement of Allenby Charles Meiring at PN53 and Exhibit ACM11 and ACM12 to Statement of Allenby Charles Meiring
83 Storages Services – General – Award 1999 & ors, Giudice J , Ross VP , Smith C , Deegan C, 26 March 2004 [PR032004] at PNS139-142
84 Applicant’s submissions at PNS38-44
85 Transcript of Hearing on 21 November 2007 at PN597
86 Ibid at PN721
87 Ibid at PN597
88 Ibid at PN564, PN609 and Transcript of Hearing on 22 November 2007 at PNS942-943
89 Statement of Andrei John Moore at PN67
90 Statement of Neville Edward Price at PN39
91 Transcript of Hearing on 22 November 2007 at 1405
92 Ibid at PNS856-859
93 (1995) 185 CLR 410
94 Ibid at 465
95 Print S8591, Giudice J, Williams SDP and Huxter C, 28 July 2000
96 Ibid at PNS17-19
97 Statement of Allenby Charles Meiring at PN56
98 Affidavit in reply of Colin Henry Gottwald at PN36
99 See Print S8591, Giudice J, Williams SDP and Huxter C, 28 July 2000 at PN16 where it is stated:
“It appears to us that s.170CH provides for four classes of remedy:
· an order for reinstatement by reappointment to the same position: s.170CH(3)(a);
· an order for reinstatement by reappointment to a position "on terms and conditions no less favourable": s.170CH(3)(b);
· in conjunction with either of these, an order for continuity of employment and an order for an amount in respect of lost remuneration: s.170CH(4); and
· an order for payment in lieu of reinstatement: s.170CH(6).”
100 Ibid at PN20 and PN23