[2013] FWC 1812 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maurice Wardle
v
Hamersley Iron Pty Ltd
(U2012/14645)
COMMISSIONER WILLIAMS |
PERTH, 4 APRIL 2013 |
Termination of employment.
[1] This matter involves an application made by Mr Maurice Wardle (the applicant or Mr Wardle) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Hamersley Iron Pty Ltd (the respondent).
[2] This matter was the subject of a conciliation conference with a Fair Work Commission Conciliator however the matter was not resolved and has been referred to me for determination.
Background
[3] The respondent first employed the applicant on 5 April 2004.
[4] On 26 October 2012, the applicant was dismissed because of an alleged breach of operating instructions. At the time of the incident on 11 October 2012 that led to the applicant’s dismissal, he was a Mainline Locomotive Driver but was working in the respondent’s rail yard.
[5] The alleged breach occurred on 11 October 2012 in the course of a propelling movement in the respondent’s 7-Mile yard. The respondent concluded that the applicant deliberately disregarded the respondent’s Railway Operating Rules and whilst driving a locomotive undertook an unprotected propelling movement putting at grave risk the safety of other persons in the rail yard. The terminology used here is explained further below.
[6] The 7-Mile yard is one of the respondent’s rail marshalling yards approximately 10 kilometres west of Karratha.
[7] It comprises a number of rail lines referred to as “roads” that are used to marshal and to configure trains destined to carry iron ore.
[8] The roads within the 7-Mile yard are controlled by two control rooms. Dampier Control is responsible for train traffic further outside the yard and 7-Mile Control is responsible for traffic within the 7-Mile yard.
[9] 31 Road is the major road with which most of the other small roads in the yard intersect.
[10] 90 Road is used for marshalling compressor cars (also referred to as brake cars). The cars are left at 90 Road until they are needed.
[11] “Shunting” involves train movements which are not directly concerned with a through journey. These train movement can be for train marshalling, wagon placement, attaching or detaching vehicles, clearing or placing sidings or splitting trains to perform shunting.
[12] “Propelling” involves a movement with one or more locomotives pushing rather than pulling the wagons or cars.
[13] Importantly when travelling with wagons and cars in front of the locomotive in which the Driver is located (i.e. propelling) the Driver does not have a clear view of the road along which the wagons are travelling or will travel. In a propelling movement the Driver is unable to see immediately in front of the lead wagon and so cannot see obstacles on the track in front of the train nor persons or vehicles that may be going to cross the track with which the lead wagon or car could then collide.
[14] A “Shunter” or “Carman” is an employee on the ground in the yard who is in radio contact with the two train control rooms and the Locomotive Drivers. A Shunter/Carman is allocated to give the Driver of a particular locomotive instructions when they are undertaking movements in and around the yard. When the locomotive is undertaking a propelling movement the Shunter or Carman is effectively acting as the Locomotive Driver’s eyes and ears.
[15] A “triple” is three locomotives coupled together.
[16] Regarding the incident that lead to the applicant’s dismissal the applicant was operating a triple at the time and it is not disputed that on 11 October 2012, the applicant was required to undertake a shunting propelling movement involving the following steps:
1. shunt a brake car up to 91 Road;
2. propel the three locomotives and brake car back to 90 Road;
3. separate the locomotives from the brake car;
4. drive the locomotives back to 91 Road; and
5. propel the locomotives back to 7 Road.
[17] The incident occurred during the last part of the task (i.e. propelling the triple back to 7 Road).
[18] 91 Road is controlled from Dampier Control. Before any movement occurs, the Driver must obtain approval from Dampier Control to move past each of the signals up to and include signal DA524.
[19] Once the movement goes past DA524, the Driver must obtain approval from the 7-Mile Control.
[20] When the Driver is to undertake the propelling movement the Driver must be instructed by a Shunter, who functions as the Driver’s eyes and ears because the Driver has a very restricted view of the road ahead and no view of the road immediately ahead.
[21] If a propelling movement is to be performed, the following process must be followed:
1. the Shunter must take up a position where they:
a. have an uninterrupted view of the road between the starting point and the finishing point of the movement; and
b. can “protect” the route that the locomotives will take; meaning they can see there are no obstacles on the road or people or vehicles moving across the road.
2. the Shunter must ensure that the Driver has the necessary authority from the relevant train control;
3. the Locomotive Driver must not move until he has clear instructions from the Shunter and he has confirmed those instructions;
4. the Shunter and the Driver must remain in constant two-way radio contact throughout the propelling movement; and
5. the Shunter must “call the distance” to the Driver, i.e. the Shunter must describe the distance between the location of the locomotives and the finishing point of the propelling movement. The distance is usually described as a number of cars (a car is known to be approximately 10 metres long).
[22] The respondent following its investigation into the incident concluded that the applicant who was the Driver of the locomotives had commenced the propelling movement well before he had been given the instruction to move by the Shunter/Carman and so had travelled at least 200 metres “unprotected” and that in the circumstances dismissal was warranted.
Applicant’s submission
[23] The case for the applicant is that contrary to the respondent’s position on 11 October 2012 the applicant did not commence the propelling movement without authorisation from the Shunter at all. It is submitted on behalf of the applicant that if the Commission is not satisfied on that point then ultimately this application would fail 1.
[24] The applicant submits it is incumbent on the party which seeks to show a valid reason for the termination to establish its validity.
[25] The respondent dismissed the applicant for an alleged breach of the Shunting Principles.
[26] The respondent claims that on 11 October 2012 the applicant was involved in an incident whereby he “conducted an unprotected shunting movement (unprotected propelling) without proper authorisation” (the incident).
[27] The applicant submits that this is not a valid reason for termination, in that it is not sound, well founded and defensible.
[28] The applicant was a loyal and diligent employee, with a period of service approaching nine years. It is submitted that either one of two alternatives apply to the incident; either
a. The applicant did not breach any Shunting Principles in his acts of moving a locomotive under the directions of a Shunter; or
b. If the applicant had in fact breached these Shunting Principles, the breach was so minor that it would not have warranted termination in the circumstances.
[29] It is submitted that either of the above alternatives would show that there was no valid reason for dismissal.
[30] The applicant, during the incident in question proceeded to reverse the locomotive after he was advised “I will give you an 80 car count”, and proceeded to reverse the locomotive as the Shunter counted down the cars.
[31] The shunting movement was completed and there was no damage or any other issues and as far as the applicant was concerned everything had gone smoothly.
[32] The applicant says that the responses he gave in the various investigation meetings with the respondent’s staff were based on the information that had been provided to him. This material was limited to the transcript of the radio conversations leading up to the incident but the evidence demonstrates that those radio transcripts are not complete and so the answers he gave in those meetings needs to be understood in this context.
[33] The evidence of Mr Gellard is that those transcripts were not the full transcript of all of the radio conversations but an edited version based on his assessment of what was relevant to the investigation.
[34] Consequently the answers the applicant gave to some of the questions during the investigation should not now be relied upon because the limited information on the radio transcripts did not help him clarify what occurred at the time of the incident.
[35] On behalf of the applicant it is submitted that having seen the evidence of the respondent’s witnesses, provided to the applicant before the hearing in their statements, the applicant now realises that what must have happened was that he was actually given authorisation to commence the propelling movement.
[36] The applicant says this can be seen from Mr Eamon O’Neill’s incident report made at the time of the incident 2. Mr O’Neill in his incident report explains the events and includes the following:
“Trainee calls Driver (8167) ‘When you get the light right to set back to 7 Road and 80 cars to couple’.”
[37] On behalf of the applicant it is said that this is evidence of the instruction the Shunter gave him and is the missing link that at the time of the investigation Mr Wardle was unaware of and so he was not able to properly explain his actions during the investigation meetings.
[38] The applicant submits that if Mr O’Neill’s report is correct then the transcripts of the radio conversations are incomplete.
[39] The evidence of Mr Wardle at the hearing was that this was the instruction given to him before he began the propelling movement and so it is submitted on behalf of the applicant that this proves that he did not move the train without authorisation 3.
[40] That being the case the applicant’s submits there was no valid reason for the dismissal.
[41] Although there is no admission that the applicant took part in any wrongdoing or failed in his responsibilities as a Locomotive Driver; to put forward the applicant’s submissions in its entirety, the seriousness of such a breach was also examined.
[42] It is submitted, that even if the applicant had not fulfilled his responsibilities as a Locomotive Driver, and had in fact commenced the movement without the authority of the Shunter, his actions would not have been serious enough to warrant dismissal.
[43] It is important to note that if this carelessness took place, it was certainly not wilful, nor did the applicant set out to recklessly endanger the lives of others.
[44] It is submitted that there was no wilful, reckless, or deliberate act by the applicant that would cause the Commission to come to such a finding.
[45] It is submitted that the Commission must find that the applicant did not partake in any activity which would amount to a breach of the Shunting Principles. The applicant, at all times acted under the instructions of the Shunter.
[46] The respondent has not provided to the satisfaction of the Commission that the applicant engaged in the alleged conduct which lead to his dismissal.
[47] The respondent has not discharged its onus of proof to the satisfaction of the Commission that the applicant’s alleged conduct was sufficiently serious to justify his dismissal.
[48] The applicant submits that in the event the Commission finds that the applicant had acted in an inappropriate manner, breaching the Shunting Principles, the issue of proportionality is highly relevant.
[49] In this case the applicant has almost nine years excellent service with the respondent, as demonstrated by his numerous pay rises and positive feedback throughout his employment. He has worked as a Locomotive Driver for 25 years; this is the only job he knows. It goes without saying that the opportunities as a Locomotive Driver are extremely limited. It is incumbent on the employer when dismissing an employee that they consider the consequences of the dismissal.
[50] Given the applicant’s long service history, as well as the treatment of other employees involved in workplace safety incidents, termination was out of all proportion in response to the applicant’s conduct.
[51] It is submitted that the earlier incidents identified in the applicant’s witness statement show incidents of comparable cases where there was no termination. Not only were these cases comparable, it is further submitted that the breaches of policy were in fact far more serious than the incident the applicant is accused of taking part in.
[52] In particular it was submitted on behalf of the applicant that Mr O’Neill and Mr Kemlo had reached the respondent’s Shunting Principles and Rules when they failed to immediately instruct the applicant to stop the train when on their version of events they say they first became aware that the train was moving without authorisation. Their failure to immediately instruct the Driver to stop should have been viewed by the respondent as a serious breach of the Shunting Principles warranting potentially a dismissal consistent with the manner in which the respondent treated the applicant.
[53] The incident the applicant is accused of participating in resulted, in no damage whatsoever, to either property or equipment, nor were any injuries caused.
[54] During the last month of the applicant’s employment the applicant attended several meetings to discuss the apparent incident. The applicant was notified during the meeting of 16 October 2012 that he may face termination depending on the outcome of the investigation.
[55] On 25 October 2012, after being advised that the company was “fairly certain” that he had breached the Shunting Principles, the applicant was then advised that he had 24 hours to show cause as to why his employment should not be dismissed.
[56] The applicant attended a meeting the following day, 26 October 2012, in which he explained why he should not have his employment terminated. Approximately 15 minutes later the applicant was advised that his employment was to be terminated.
[57] It is submitted that the respondent had already come to the decision to terminate the applicant’s employment prior to listening to his reasoning.
[58] It is submitted that the termination of the applicant was unjust, unreasonable and harsh.
Respondent’s submission
[59] The respondent submits that the evidence demonstrates that on 11 October 2012, the applicant was driving a triple and was stationary on 91 Road having completed a shunting movement that Ms Nardia Fallon supervised.
[60] Ms Fallon spoke to Mr Eamon O’Neill over the two-way radio to confirm that he would control the remaining element of the shunting movement. Mr O’Neill confirmed that he would control the remainder of the movement and he told Ms Fallon that he was in position to do that.
[61] At that point, Mr O’Neill was sitting in a vehicle at the crossing near signal 523 which was parked facing 7 Road (i.e. with no view of the triple that the applicant was driving), discussing the movement with Trainee Mr Mark Kemlo. Mr Kemlo was to control the next part of the movement under Mr O’Neill’s supervision, and he would be responsible for giving the applicant:
1. instructions to commence the movement; and
2. a running “car count”.
[62] They completed their discussion, got out of the car and took up a position facing 91 Road. Mr Kemlo then tried to speak the applicant on the two-way radio. He tried twice and received no response. On the third attempt, the applicant replied. At that point Mr Kemlo told the applicant that he could commence the movement and that he had 80 cars to go to couple.
[63] Mr Kemlo and Mr O’Neill then looked to 91 Road to watch the propelling movement. They saw a triple moving towards them and Mr Kemlo initially thought that that triple was blocking his view of the triple that the applicant was driving. Mr O’Neill then realised that the triple was, in fact, the triple the applicant was driving.
[64] The surprise appearance of the triple the applicant was driving prompted Mr Kemlo to immediately revise the car count to only 40 cars. Mr Kemlo and the applicant remained in two-way radio contact for the remainder of the movement.
[65] It is submitted it was clear that the applicant had begun to propel the triple prior to receiving an instruction to do so from a Shunter.
[66] After the movement has been completed, Mr O’Neill and Mr Kemlo climbed onto the locomotives and asked the applicant what had happened. He offered no explanation for what had happened except to complain about the radio; a nonsensical response in the circumstances.
[67] The matter was brought to Yard Supervisor Mr Matt Bushby’s attention and he had a short discussion with Mr O’Neill and Mr Kemlo to find out what had happened.
[68] Mr Bushby then conferred with Mainline Supervisor, Mr Kym Gellard about what Mr O’Neill and Mr Kemlo had told him and began a Taproot (Safety) investigation into the incident. That investigation was undertaken immediately and was completed before 6.00 a.m. on 12 October 2012.
The investigations
[69] The Taproot investigation was focussed on the safety aspects of the incident and was therefore more concerned with what happened rather than with the culpability of any of those involved.
[70] In the course of their investigation Mr Bushby and Mr Gellard:
[71] It is submitted the applicant admitted to Mr Busby and Mr Gellard that he had moved before receiving Mr Kemlo’s authorisation to move. However, the applicant sought to minimise what he had done by claiming that the movement was considerably less than it was. He only conceded the distance when confronted with evidence that his account could not adequately explain. In short, the applicant was not entirely truthful with Mr Bushby and Mr Gellard.
[72] Mr Busby and Mr Gellard each, and independently, measured the distance the applicant moved before receiving Mr Kemlo’s authorisation. Both concluded that the applicant had moved at least 200 metres and perhaps as much as 240 metres without authority.
[73] The applicant was immediately stood down from “safe working” duties.
[74] The information that Mr Busby and Mr Gellard had gathered was initially passed on to Mr Glenn Humphreys, the Yard Superintendent. Mr Humphreys saw that the incident involved a Driver who was a member of the Mainline Team and passed the information on to Mainline Superintendent, Mr Daniel Poole.
[75] Mr Poole recognised that information provided to him indicated the possibility of disciplinary action being taken against the applicant. He conferred with Manager of Rail Operations, Mr Mark Hamilton, and sought assistance from HR Superintendent, Mr Corey Dalton.
[76] Mr Poole and Mr Dalton met with the applicant on 12 October 2012 and stood him down with pay while an investigation into his conduct was undertaken.
[77] Mr Dalton and Mr Poole had access to and relied upon the information that Mr Busby and Mr Gellard collected in the course of their Taproot investigation.
[78] Mr Poole and Mr Dalton met with the applicant again on 16 October 2012 to receive the applicant’s account of the incident and to obtain answers to questions about the incident that they had prepared.
[79] The applicant admitted that he’d moved before he was authorised to do so but sought to blame Mr Kemlo and Mr O’Neill, and the alleged failure of two-way radio equipment for his conduct.
[80] Mr Poole and Mr Dalton conferred with Mr Hamilton about what action should be taken in response to the applicant’s conduct. Mr Hamilton also sought advice from the respondent’s employee relations department.
The respondent’s response
[81] Mr Dalton gathered information about the applicant’s employment history including:
[82] Mr Dalton also made inquiries about how the respondent had dealt with similar cases in the past. Mr Dalton found two similar incidents in Rio Tinto’s businesses and, in both cases, the employees opted to resign rather than be dismissed.
[83] Mr Hamilton was provided with the information that Mr Dalton had collected.
The dismissal
[84] Mr Hamilton instructed Mr Poole and Mr Dalton that, unless the applicant could show cause why he should not be dismissed, that he should be dismissed.
[85] Mr Poole and Mr Dalton met with the applicant again on 25 October 2012 and informed him that:
[86] Mr Poole and Mr Dalton met with the applicant again on 26 October 2012 to receive the applicant’s response to its request that he show cause why it should not dismiss him. The applicant gave Mr Poole and Mr Dalton a written response.
[87] Mr Poole and Mr Dalton told the applicant that they would consider his response and let him know the respondent’s decision as soon as possible. At the applicant’s request, Mr Poole and Mr Dalton considered the response immediately and, after taking further advice, told the applicant that he was dismissed. They then read a letter to him confirming his dismissal then gave him the letter.
[88] The respondent paid the applicant 5 weeks’ pay in lieu of giving him 1-months’ notice as his contract requires.
Whether there was a valid reason
[89] It is submitted the applicant was dismissed because he knowingly breached the respondent’s Shunting Principles thereby creating a grave risk to the safety of other people working in the 7-Mile yard.
[90] A wilful breach of the respondent’s safety rules is a valid reason to terminate the applicant’s employment.
Whether the person was notified of that reason
[91] It is submitted the respondent told the applicant why he was dismissed. He was told on 25 October 2012 during a meeting with Mr Poole and Mr Dalton and again on 26 October 2012 during a meeting with Mr Poole and Mr Dalton and in a letter that the respondent gave him in that meeting.
Opportunity to respond to the reason
[92] It is submitted the respondent afforded the applicant several opportunities to respond to its concerns about his conduct. Those opportunities arose on 11 October 2012 in the course of his meetings with Mr Bushby and Mr Gellard and when he was interviewed for the Taproot investigation and on 16, 25 and 26 October 2012 in the course of these meetings with Mr Poole and Mr Dalton.
Any unreasonable refusal to have a support person present
[93] The respondent submits the applicant declined repeated invitations to have a support person accompany him to meeting with the respondent’s representatives.
[94] The respondent never refused the applicant permission to have a support person accompany or assist him in any discussions related to the dismissal.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[95] The respondent is a large, well-resourced enterprise with sophisticated human resource procedures, and well-trained practitioners to apply and implement those procedures.
Other factors
[96] It is submitted the respondent’s decision to dismiss the applicant is consistent with the decisions it has made in comparable situations in the past.
[97] The respondent inquired into how it had dealt with similar incidents in the past and found two comparable incidents, including one similar incident at 7-Mile yard.
[98] The respondent determined to dismiss the offenders in both of those cases.
[99] The respondent had regard to the personal matters that the applicant raised with it, and it had regard to impact of its decision upon the applicant.
[100] It was concluded that none of those factors were sufficiently important that it should override the respondent’s obligations to ensure, as far as is practicable, the safety of its other employees and contractors.
[101] In all the circumstances, dismissing the applicant is a balanced and proportional response to the applicant’s wilful, reckless and gravely dangerous conduct.
Conclusion
[102] The respondent submits that, in all the circumstances, the applicant was not harshly, unjustly or unreasonably dismissed and his application for a remedy should be dismissed.
Consideration
[103] I will first review the evidence as to whether or not on the night in question the applicant, Mr Wardle, commenced the propelling movement without authority from the Shunter.
The applicant’s evidence
[104] The applicant in his witness statement provided in response to the Commission’s directions does not indicate whether he received what he says was the instruction from Mr Kemlo to commence the train movement whilst the train was still stationery or whether he received this instruction after he had already commenced the propelling movement.
[105] In his statement the applicant says that he was not certain whether or not the incident did occur.
[106] Under cross-examination the applicant conceded that at the time he made his witness statement he was not positive whether he had received permission from the Shunter to commence the propelling movement 4. However the applicant says that having seen the witness statements filed by the respondent he can now see exactly what had happened on the night and that is why in his oral evidence at hearing he was adamant that he was given an authorisation by Mr Kemlo well before he commenced the propelling movement.
[107] Critically the applicant relies on the words included in the incident statement made by Mr O’Neill which refers to the Trainee Shunter Mr Kemlo calling the Driver and apparently saying “When you get the light right to set back to 7 Road and 80 cars to couple” 5.
[108] The applicant’s evidence in effect was that the responses he gave during the investigation process and subsequent disciplinary meetings were influenced by the radio transcript which was the only information the respondent had provided him with. His evidence is that this affected the responses he gave at the time because the transcript of radio communications suggested that he had moved without authority 6.
[109] The applicant in his evidence during the hearing says that having now seen the incident statement written by Mr O’Neill in which Mr O’Neill records the instruction that Mr Kemlo gave to the applicant to commence the movement he now knows that he did nothing wrong 7.
[110] The applicant agrees he was bound to follow the respondent’s Shunting Principles and was aware of these 8.
[111] Having considered his evidence and having observed Mr Wardle during the hearing it is fair to characterise the evidence he gave as to the events on the night in question not as evidence based on his memory of those events but rather as a favourable reconstruction of events that he says must have occurred based largely on his interpretation of the incident statement made by Mr O’Neill on the night of the event and bolstered by an argument that the radio transcript must be incomplete.
The respondent’s evidence
[112] The evidence of both Mr O’Neill and Mr Kemlo is clear that the applicant had covered a significant part of the propelling movement before he was given authority by Mr Kemlo to commence the movement.
[113] Their evidence was that the instruction he was given by Mr Kemlo was to move into 7 Road and that he had a distance of 80 cars to the point of coupling. Immediately upon having given that instruction to the applicant Mr O’Neill and Mr Kemlo, after some initial confusion, realised that the train being driven by the applicant was not stationary but instead was already moving and in fact there was only a distance of approximately 40 cars to the point of coupling. Mr Kemlo immediately issued a revised car count down to 40 to the applicant and then monitored the rest of the propelling movement to its conclusion which was completed without incident.
[114] Mr O’Neill and Mr Kemlo both say that after the movement was completed they climbed into the locomotive and asked the applicant what had happened and his only response was to make a complaint about the radios.
[115] Sometime later towards the end of that shift these two employees reported the incident to Mr Bushby the 7-Mile Yard Supervisor.
[116] Mr Bushby then approached Mr Gellard the Mainline Supervisor and they agreed the incident should be investigated.
[117] The evidence of both Mr Bushby and Mr Gellard was that they initially spoke to the applicant informally to get an idea of what had happened. They say the applicant confirmed that he was the Driver involved. Their evidence was that they told him that it had been reported that he had moved the train before he had an instruction authorising him to and that they would be investigating this.
[118] Both Mr Bushby and Mr Gellard say that the applicant’s account of what happened included him admitting that he had moved early, meaning before he was given an instruction to do so by the Shunter, although he said he hadn’t moved very much.
[119] Mr Gellard then separately collected other information that would be needed whilst Mr Bushby took Mr O’Neill and Mr Kemlo to the site so that they could explain what had happened. Shortly thereafter Mr Bushby also took the applicant to the site to get his version of events.
[120] Mr Bushby’s evidence was that after some discussion with the applicant and after recounting what Mr O’Neill and Mr Kemlo had reported the applicant again agreed that he had moved the train as they had said but the applicant was otherwise vague about the locations and distances involved.
[121] Mr Gellard and Mr Bushby together then interviewed the applicant at approximately 2.00 a.m.
[122] The evidence of Mr Bushby is that the questions they had prepared were in part based on the transcript of radio communications that Mr Gellard had earlier prepared.
[123] The notes of that interview, which both Mr Gellard and Mr Bushby swear are correct, include them saying to the applicant that based on the radio transcript he called Mr O’Neill letting him know that the applicant was coming back into 7 Road which the applicant agreed was correct.
[124] They then asked the applicant whether the Shunters had given him an instruction for the propelling movement and the applicant replied “Not directly”.
[125] The applicant then said by that he meant, “I overheard on Channel 28 that he was in position”. He was then asked, “Did he give you an instruction to go back from 412 into 7 Road?” To which the applicant answered “No”. He was then asked whether he could explain why he commenced the propelling movement without instructions from the Shunter and the applicant replied, “From hearing that the Shunter was in position.”
[126] The notes of this interview show that the only thing the applicant wanted to add was that he had raised concerns about the radio transmission from Simeco radios being used in the shunt.
[127] The notes of this interview were signed at the time as having being read and understood by the applicant.
[128] Approximately 2 hours later Mr Bushby and Mr Gellard interviewed Mr O’Neill and Mr Kemlo who said they had not given any instruction to the applicant before the propelling movement started.
[129] Under cross-examination Mr Gellard explained that the radio transcript was compiled by himself having listened to the radio communications that occurred around the time of the incident. He acknowledged that the transcript does not include all the radio communications at the time but only those that he believed were relevant to the investigation. He was adamant however that there were no other communication that he did not transcribe which in any way could be construed as having been any type of instruction given to the applicant by the Shunter.
[130] He acknowledges that the radio transcript he prepared does not include any mention of the words “When you get the light right to set back...” which were included in Mr O’Neill’s incident statement taken on the night in question as having been spoken by Mr Kemlo the Trainee Shunter. His evidence was that that was because he did not hear anything like that on the tape at all.
[131] His evidence was that whatever radio problems there might have been with Simeco hand-held radios this did not affect the recordings of the radio communications.
[132] In his evidence Mr Gellard pointed out that should a Driver believe there is any break in radio communication when he is undertaking a movement because of radio failure he is required to immediately stop the movement until radio communications are re-established 9.
[133] His evidence further was that the Driver is required to acknowledge that he has received an instruction from the Shunter by repeating that instruction correctly and so confirming it 10.
[134] Both Mr Gellard and Mr Bushby in their oral evidence confirmed and were not shaken on the fact that in their initial discussions with the applicant on the night of the incident he had acknowledge that he had moved the train without authority.
[135] The oral evidence of Mr O’Neill was that after Mr Kemlo gave the instruction to the applicant to commence the propelling movement there was no acknowledgement from the applicant of that authority. His evidence was that there were no radio difficulties experienced on that night.
[136] When cross-examined on the words spoken by Mr Kemlo, which Mr O’Neill recorded in his incident statement, as authorising the applicant to commence the propelling movement Mr O’Neill said that the words he recorded were “close enough, but not exactly what we said...” on the night and that his statement recorded words “to the effect of” what was said by Mr Kemlo and the words actually said were “pretty close” to those in his incident statement. Mr O’Neill readily acknowledged that the words he had written down in his incident statement at the time of the events may not have been exactly what was said word for word on the night by Mr Kemlo.
[137] When under cross examination he was asked to explain why the radio transcript did not include the full statement he had recorded in his incident statement, specifically the words “When you get the light...” were not there, Mr O’Neill’s reaction was to readily acknowledge that was the case but to observe that the rest of the authorisation given by Mr Kemlo was there in the transcript as he had written it in his incident statement.
[138] Mr O’Neill was not challenged on the critical point of his evidence in chief that the applicant had commenced the propelling movement before he had been given the instruction to do so.
[139] In his oral evidence Mr Kemlo says that on the night in question Mr Wardle did not raise any concerns about the radio during the shunting activities and he did not remember there being any bad communications on the radio.
[140] Under cross-examination Mr Kemlo was quite clear and unequivocal on the critical point that the applicant had moved the train from where it had been stationery at the 91 Road before he had received any instruction from Mr Kemlo to begin the propelling movement 11.
Findings on the evidence
[141] Against the applicant’s evidence given at hearing as to what he now believes must have happened on the night in question there is the evidence of Mr O’Neill and Mr Kemlo as to their particular memory of what did happen. Neither Mr O’Neill nor Mr Kemlo were shaken on their critical evidence.
[142] Supporting the version of events as explained by Mr O’Neill and Mr Kemlo is the evidence of both Mr Bushby and Mr Gellard that in the preliminary informal stage of their investigations the applicant acknowledged he had moved without authority. Importantly this acknowledgment by the applicant that he had done the wrong thing occurred before the radio transcription had even been made by Mr Gellard 12. Consequently the argument on behalf of the applicant that these initial admissions by him were wrongly influenced by the allegedly incomplete radio transcription is not correct.
[143] Further I accept the evidence of Mr O’Neill that the particular words he wrote in the incident statement as to the instruction Mr Kemlo gave to commence the propelling movement were not exactly the words spoken on the night by Mr Kemlo. Mr O’Neill’s evidence, given openly and forthrightly, was that he interpreted the radio transcript as recording that instruction from Mr Kemlo where it reads “8167 North Carmen have 31 for 7 your right to set back 80 cars to couple”.
[144] I note that the transcript shows that immediately before this the applicant as Driver 8167 says “Carmen Eamon 8167 coming back into 7 now” in other words he is already moving the train back into the 7 Road.
[145] In any event the applicant’s reliance on Mr O’Neill’s incident statement by itself does not deal with the simple but critical difference between the applicant’s version of what occurred and the respondent’s version. The difference is whether the instruction given from the Shunter to the applicant to commence the movement was given before the applicant began the propelling movement or at a time after he had already commenced the propelling movement.
[146] In terms of the accuracy and completeness of the transcript of radio communications Mr Gellard was not shaken in his evidence that he did accurately record all of the relevant radio communications and on balance I accept that is the case.
[147] I also note that the transcript does not record any positive confirmation by the applicant acknowledging an instruction authorising him to commence the propelling movement which he is required to give.
[148] It should also be observed that any questions about the functioning of the Simeco hand-held radios do not assist the applicant. The obligation upon the applicant is not to commence a train movement until he has received a positive instruction authorising him to do so from the Shunter and he is required to confirm receipt of that authorisation by repeating the instruction back himself. If there had been a handheld radio failure then the instruction from the Shunter to the Driver may not have been received which would mean that no train movement should have been commenced. In any event that is not what was argued by the applicant during the hearing. The applicant consistently in his evidence said that he now believed he was given a positive instruction authorising him to begin the propelling movement 13.
[149] Separately the applicant’s argument as to the timing of when he believed he must have been given the authorisation to commence the propelling movement was unconvincing. On his version of events this instruction must have been given to him quite a long time before he commenced the propelling movement and in all likelihood before the Shunters had decided amongst themselves which of them was to control that movement, which is obviously improbable.
[150] Considering all of this there is a considerable weight of evidence from multiple witnesses which supports the respondent’s view as to what happened on the night in question which is contrary to the evidence of the applicant which was not based on his memory of events but rather was a favourable reconstruction of events that was never raised by him prior to the hearing of this matter.
[151] My finding is that on 11 October 2012 the applicant commenced a propelling movement before any instruction from a Shunter authorising him to do so had been given. I also find that this unprotected propelling movement continued for approximately 200 metres before the Shunters became aware that the triple being propelled by the applicant was moving.
[152] As such the actions of the applicant were a breach of the respondent’s Shunting Principles which he was required to follow.
The legislation
[153] The Act sets out in section 387 the matters that the Commission must take into account when considering whether an employee’s dismissal was harsh, unjust, or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Was there was a valid reason for the dismissal?
[154] The applicant on 11 October 2012 commenced a propelling movement before any instruction from a Shunter authorising him to do so had been given. This conduct was a breach of the respondent’s Shunting Principles.
[155] The applicant’s actions were a valid reason for dismissal related to his conduct which put at risk the safety of other people including other employees.
Was the person notified of that reason?
[156] The respondent notified the applicant of the reason why they were considering dismissing him. This was first explained to him during the investigation interview on 16 October 2012. Expressly on 25 October 2012 during a meeting with Mr Poole and Mr Dalton he was told that the respondent had concluded its investigation and identified that he had commence the propelling movement prior to obtaining authority to do so which was a breach of the Shunting Principles and that the respondent was considering terminating his employment because of this.
Was the person given an opportunity to respond to the reason?
[157] The applicant had opportunities to respond to the respondent’s concerns about his conduct during the meeting on 11 October 2012 with Mr Bushby and Mr Gellard and when he was interviewed further on 16, 25 and 26 October 2012 in the course of those meetings with Mr Poole and Mr Dalton.
[158] The applicant was invited to show cause why he should not be terminated and replied in writing to this invitation.
Any unreasonable refusal to have a support person present
[159] There was no refusal by the respondent to allow the applicant permission to have a support person accompany or assist him in any discussions related to the dismissal.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[160] The respondent is a large business with dedicated human resource management staff and the procedure followed in effecting the dismissal was appropriate given this was the case.
Other factors
[161] On behalf of the applicant it was argued that the respondent had erred in only drug testing the applicant on the night of the incident and not also Mr O’Neill and Mr Kemlo.
[162] A number of the respondent’s witnesses to their credit conceded that in hindsight this was probably not appropriate.
[163] I note that this incident only came to the attention of the respondent because it was reported by Mr O’Neill and Mr Kemlo to their seniors. It has not been at all suggested that Mr O’Neill and Mr Kemlo may have been affected by drugs or alcohol on the night in question. Nor was it found that the applicant was so affected.
[164] Accepting that the respondent may not have properly followed its own procedures in this regard I do not accept that this in any way affects the question of whether the dismissal of the applicant was harsh, unjust or unreasonable. The respondent’s error on this did not prejudice the applicant.
[165] In addition it is argued for the applicant that Mr O’Neill and Mr Kemlo upon realising that the applicant’s train was already moving, should have immediately radioed him to stop the movement. The evidence is that rather than stopping the train an instruction was given by Mr Kemlo to the Driver that he had only 40 cars to couple, rather than 80, and the Shunters then monitored the balance of the propelling movement to its conclusion.
[166] This issue was explored with some of the respondent’s witnesses and the evidence is mixed as to whether the Shunters actions were incorrect in this regard.
[167] Having reviewed that evidence and the Shunting Principles my conclusion is that at the moment the Shunters became aware the train was already moving they were, as Mr O’Neill explained, in a position to properly protect the track which the train was propelling into. Consequently there was no danger in them allowing the movement to continue under their control as they did and immediately providing the applicant with a revised wagon count of 40 cars to couple. As such I do not accept that Mr O’Neill and Mr Kemlo’s actions in the circumstances would attract any criticism and would warrant disciplinary action by the respondent.
[168] The applicant also sought to contrast the decision made by the respondent to dismiss the applicant in this instance with its response to past safety breaches involving other employees. Contrary to this the evidence of a number of the respondent’s witnesses is that as part of its considerations when deciding what action should be taken it reviewed previous safety breaches and concluded that dismissal in this instance would be consistent with its actions in those prior cases.
[169] The evidence provided by the applicant on previous instances of safety breaches involving others was incomplete and limited. This did not allow the Commission to make a proper comparison and consequently I have no basis to conclude that the respondent’s actions on this occasion were inconsistent with past disciplinary action.
[170] The applicant had been employed with the respondent for approximately nine years. Evidence was provided that in recent times the applicant’s performance reviews had scored him as being just short of meeting expectations. Attention was drawn by the applicant’s representative to some positive observations made in his most recent performance review in terms of feedback from his “leader”. Having read these carefully those comments are not positive ones about his past performance but rather exhortations and encouragements to the applicant about how he could and should perform better in the future.
[171] Evidence was also given about a written warning and a negative file note the applicant had been given in 2011.
[172] In summary the applicant’s employment record particularly in the more recent past was not unblemished. The applicant was not a high performing employee such that the respondent might reasonably have considered what occurred on 11 August 2012 as an aberration. Dismissal of the applicant in these circumstances was not a disproportionate response.
[173] There are no other matters that would cause the Commission to conclude that the applicant’s dismissal should be judged as being harsh, unjust or unreasonable.
[174] The respondent has statutory obligations regarding safety within the workplace and in order to comply with those, and no doubt also for good business reasons, imposes obligations upon its employees to follow prescribed procedures in its rail operations. Indeed the evidence is that the majority of injuries and fatalities involving railways happen in marshalling yards in the course of shunting including propelling movements 14.
[175] On this occasion Mr Wardle ignored the respondent’s Shunting Principles and commenced a propelling movement of the train he was driving without instruction to do so from a Shunter. This was a dangerous act for which the respondent decided it was appropriate to dismiss Mr Wardle. My conclusion is that the respondent’s decision to dismiss Mr Wardle in all the circumstances was not harsh, unjust or unreasonable. The dismissal was not unfair.
[176] Consequently I will dismiss Mr Wardle’s application and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
G. Pinchen, representative for the applicant.
S. Heathcote, solicitor for the respondent.
Hearing details:
2013.
Karratha:
March 6, 7.
1 Transcript at PN15.
2 Exhibit R2, Document 11.
3 Transcript at PN2210 to PN2219.
4 Ibid., at PN488 to PN508.
5 Exhibit R2, Document 11.
6 Transcript at PN505 to PN509.
7 Ibid., at PN720 to PN722.
8 See Exhibit R2, Document 13, Question 10.
9 Transcript at PN938 and see Exhibit R2, Document 9, 4.2.9 of the Shunting Principles.
10 Transcript at PN989 to PN994.
11 Ibid., at PN1266.
12 Exhibit R1, Document 3 at paragraph 19 to 28 and Document 4 at paragraph 20 to 24.
13 See Exhibit R2, Document 9, 4.2.9 of the Shunting Principles.
14 Exhibit R1, Document 4 at paragraph 6.
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