1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Nicolas Farmer
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2014/5560)
COMMISSIONER WILSON MELBOURNE, 22 SEPTEMBER 2014
Application for relief from unfair dismissal.
[1] Nicolas Farmer was employed by KDR Victoria Pty Ltd, trading as Yarra Trams, as a
tram driver from 13 December 1999 until his dismissal on 21 February 2014.
[2] At the time of his dismissal he was employed to work out of the Yarra Trams East
Preston depot.
[3] Mr Farmer was dismissed by Yarra Trams on 21 February 2014 for reasons arising out
of its investigation of an incident on Friday, 7 February 2014 in which Mr Farmer is alleged
to have been using his mobile phone as he was driving the tram across an intersection.
[4] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four
initial matters to be considered before considering the merits of the application. Neither party
put forward that any initial matter required determination. As a result, and it being consistent
with the evidence, I find that Mr Farmer’s application was made within the 21-day period
required in s.394(2)(a) and that he was a “person protected from unfair dismissal” within the
meaning of that expression in s.382 at the time of the dismissal. I also find that Yarra Trams
was not a “small business employer” within the meaning of that expression in s.23, an
accordingly an issue of consistency with the Small Business Fair Dismissal Code does not
arise. I also find, that Mr Farmer’s dismissal was not a case of “genuine redundancy” as
defined in s.389 of the Act.
[5] For the detailed reasons set out below, I find Mr Farmer was unfairly dismissed within
the meaning of the Act.
[6] For the reasons set out below, this matter will now be the subject of a further hearing
before me in respect of the appropriate order under either s.391 (Remedy – Reinstatement etc)
or s.392 (Remedy – Compensation). Yarra Trams submitted in the hearing that I should
initially make findings in respect of whether Mr Farmer’s dismissal was unfair, without
proceeding to determine what should be done as a result of such a finding. In addition, I hold
the view that it is appropriate in all the circumstances to afford both parties an opportunity to
[2014] FWC 6539 [Note: An appeal pursuant to s.604 (C2014/6736) was
lodged against this decision - refer to Full Bench decision dated 4 February
2015 [[2015] FWCFB 454] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB454.htm
[2014] FWC 6539
2
bring forward such evidence or submissions as they may wish before I make a decision on the
question of remedy.
LEGISLATION
[7] The legislative provisions which are relevant to this matter are set out in s.387 of the
Act, which is as follows;
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.
BACKGROUND
[8] Yarra Trams’ East Preston depot employs about 145 tram drivers divided into four
teams, each of which is managed by a Team Manager.
[9] On Friday, 7 February 2014 Mr Farmer was driving the route 86 tram. He had
commenced work on that particular day at 3.40 pm1 and, by the time of the incident for which
he was dismissed, had completed several runs along the route 86 which goes between the
Docklands area on the edge of the Melbourne CBD and Bundoora.
1 Transcript, PN 730
[2014] FWC 6539
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[10] At about 7 pm, Mr Farmer was driving the tram away from the city towards Bundoora
along Plenty Road and was approaching the intersection of that road with Dunne
Street/Kingsbury Drive. The intersection is a significant traffic-light controlled one and on
the north-eastern side of the intersection is the Latrobe University and the Latrobe Medical
Centre and on the south-western side of the intersection there is a McDonalds outlet. Plenty
Road at that particular point is a divided highway with two dedicated tram tracks in the centre
of the road. Passengers for trams going towards the city obtain access to and from the tram
from a dedicated platform on the south-eastern side of the intersection; and similarly
passengers for trams going away from the city obtain access to and from the tram from a
dedicated platform on the north-western side of the intersection.
[11] Mr Farmer’s evidence, which is accepted by Yarra Trams, is that shortly before 7 PM
he had been driving the route 86 tram in a generally north-east direction along Plenty Road.
Not far from the intersection with Dunne Street/Kingsbury Drive, the tramline and road
undertake a bend to the left (from the perspective of the traffic moving away from the city).
As Mr Farmer approached the intersection, he was required by traffic signals to stop the tram,
which he did, and the tram came to a halt on the southern side of the intersection.
[12] By coincidence, directly on the other side of the intersection from the tram was a car
in which travelled a team leader from the East Preston depot, Ms Bernadette Doyle. Ms
Doyle was a passenger in the car, being driven by Dr Mary Noseda. Ms Doyle was off duty at
the time and she was travelling with Dr Noseda to a social function nearby. The car in which
the women travelled was stopped in a right-turn lane on the opposite side of the intersection to
Mr Farmer’s tram and was waiting for a green arrow traffic light in order to turn right, across
the tramlines and north-east bound carriageway of Plenty Road and into Dunne Street. The
evidence is that the women’s car was slightly beyond the thick white line indicating the limits
of the right-turn lane. This had come about because Dr Noseda was unfamiliar with the area
and had been caught in that position when the right-turn arrow turned red. The only
significance of this is that the vehicle was slightly forward into the intersection, thus arguably
closer to the tram and possibly more able to see across the intersection and into the tram.
[13] Dr Noseda’s evidence is that she saw the tram approaching the intersection from the
south on the other side of the intersection.2 Her evidence about what she saw includes that
being unfamiliar with the area she was also uncertain about the traffic light cycle and so was
paying careful attention to the tram. She gave evidence that as she waited for a green arrow
for the lane in which she was stopped, the tram started to progress across the intersection in
accordance with its traffic signals, and that as it did so she clearly observed the driver looking
at his mobile phone which he held in his right hand.3 Dr Noseda’s witness statement includes
that the driver held this in such a way as to be “away from the tram passengers, clearly
believing that he would not be seen”.4 What Dr Noseda saw and when she saw it as the tram
crossed the intersection is the subject of contest between the parties.
[14] Dr Noseda remarked on what she had seen to Ms Doyle. When she did so, Ms Doyle
was looking downwards to a street directory. Dr Noseda’s evidence, which is broadly
consistent with Ms Doyle’s, is that she said to Ms Doyle words to the effect of “look at that”,
causing Ms Doyle to look up and see the tram before it crossed the intersection. Ms Doyle
2 Exhibit R3, para 7
3 Ibid, para 10
4 Ibid
[2014] FWC 6539
4
agrees that Dr Noseda said this to her, at which point she looked up from the street directory
and was able to identify the driver as Mr Farmer.
[15] Both witnesses gave evidence that they saw the driver of the tram, as the vehicle
crossed the intersection, with a black object in his hand,5 which each took to be a mobile
phone. Each witness says that they saw the tram and the driver for a number of seconds and
that, given the positioning of their vehicle, they were quite close to the tram as it crossed
across the intersection and moved past them to the tram stop on the north-western side of the
intersection.
[16] The incident took place on a Friday evening and at a time when Ms Doyle was
rostered off duty. The evidence of both Ms Doyle and Dr Noseda is that they discussed what
they had seen, with both forming the view that they had seen the Applicant with a mobile
phone in his hand and appearing to use it as the tram crossed the intersection.
[17] On Monday, 10 February 2014, Ms Doyle reported her observations to another team
manager at the East Preston depot, Ms Bel Bayram, whom she knew to be Mr Farmer’s team
manager. Ms Bayram’s evidence on Ms Doyle’s report includes that Ms Doyle recognised
the driver as Mr Farmer, driving tram number 2129, with him being seen “leaning towards his
right side, trying to be out of view from the passengers on board; he had a mobile phone in his
hand and he appeared to be texting or scrolling.”6 She asked Ms Doyle if she was certain with
what she had seen, who confirmed she was, saying that “it was clearly visible from the tram
window that the Applicant was using his mobile phone whilst the tram was in motion. Both
[Ms Doyle and Dr Noseda] were in shock of witnessing this dangerous and inappropriate
behaviour.”7
[18] On Tuesday, 11 February 2014, Dr Noseda made her own report about her
observations to Ms Bayram in an email, which includes the following observations;
“A tram was travelling through the intersection coming from the city to Bundoora and,
at the point of passing my car, was no more than 3 metres away from me. I could
clearly see the driver with his head bent down and towards the right with a mobile
phone in his right hand. I was shocked and equate this behaviour with that of any car
driver who does the same and for which penalties apply. I also am aware that heavy
sanctions for drivers leaving themselves open to distraction have been publicised in
the press, and therefore consider it appropriate to inform you of this dangerous and
inappropriate behaviour.”8
[19] Having received the complaint from Ms Doyle, Ms Bayram approached Mr Farmer on
Monday 10 February just after he had signed on for his afternoon shift.9 She told him that it
had been brought to her attention that he had been seen using his mobile phone while driving
the tram and she asked him if he had, which he denied. In the same conversation she told him
that it was a serious matter and a breach of the Yarra Trams Cardinal Rules.10
5 Transcript, PN 1090 - 1091; 1280 - 1282
6 Exhibit R4, para 18-19
7 Ibid
8 Exhibit R3, attachment MN-1
9 Transcript, PN 470
10 Exhibit R4, para 21
[2014] FWC 6539
5
[20] The evidence between Ms Bayram and Mr Farmer on this conversation differ. Ms
Bayram’s account is that Mr Farmer initially said he could not remember such an incident,
and that after she told him it had been on the Friday evening, 7 February at about 7 pm, Mr
Farmer said he could not remember.11 Ms Bayram’s witness statement records that Mr’s
Farmer then stated “I may have had a look at my phone and put it back in my bag”.12 Mr
Farmer denies saying this, or that he could not remember.13 Both agree that Mr Farmer then
became angry or agitated,14 and that afterward Mr Farmer proceeded to undertake his shift for
the evening without incident.
[21] There was a further meeting between Yarra Trams and Mr Farmer on 12 February
2014, at which a union delegate attended as a support person for Mr Farmer. In the course of
that meeting Mr Farmer put forward the explanation that he had been driving with a personal
effects bag on a side tray inside the driver’s cabin, which fell off and scattered its contents
which Mr Farmer then had to retrieve.15 His evidence on this subject includes that the speed
of the tram combined with the bend on the track as it approached the intersection caused the
tram to lurch,16 and the bag flipped forward. Because the bag was unzipped its contents
dropped out.17 Mr Farmer could not recall whether the bag might have fallen off at other
times in the shift and denied it was implausible that the bag had not fallen off at other times
during the same shift, if it was on the shelf he referred to and it was unzipped.18
[22] In the same meeting, Mr Farmer brought a bag with him, which he emptied onto a
table. The contents of the bag had a number of personal belongings, including wallets, phone,
case and glasses cover.19 Ms Bayram recalls the phone displayed was white, and that she also
saw the contents of Mr Farmer’s bag included an auxiliary phone charger that was black with
a silver rim, which she conceded could be mistaken for a mobile phone if it was held in a
hand at a 45 degree.20 Ms Bayram also agreed that she had not informed Mr Farmer before
meeting that the report was he had seen been using a black mobile phone.21
[23] Following the meeting on 12 February 2014, Ms Bayram communicated again with
Ms Doyle and Dr Noseda about what they had seen and she specifically put to them the
proposition that Mr Farmer might have been repacking the contents of his bag when they saw
him and that he was not operating his mobile phone. Ms Bayram’s evidence on what they
said to her includes putting the proposition to Ms Doyle that she might have seen Mr Farmer
putting personal belongings back into his bag, rather than using a phone. However Ms Doyle
11 Transcript, PN 1425
12 Exhibit R4, para 21
13 Transcript, PN 654 - 655; 675 - 676
14 Transcript, PN 662 - 663
15 Exhibit A4, p1
16 Exhibit A4; Transcript PN 832
17 Transcript, PN 738
18 Transcript, PN 740 - 749
19 Ibid, PN 1438
20 Ibid, PN 1532 - 1536
21 Ibid, PN 1539
[2014] FWC 6539
6
remained adamant that she saw Mr Farmer either texting or scrolling on a mobile phone. Ms
Bayram recalls Dr Noseda being similarly adamant.22
[24] In addition to checking with Ms Doyle and Dr Noseda about what they had seen, Ms
Bayram also undertook what she refers to as a “visibility test” in which she checked a tram at
the East Preston depot to see whether a driver could be seen using a mobile device from the
driver’s cabin window from outside of the tram at a distance of about three metres away. Her
evidence on this point is that it was possible to see such activity from outside of the tram.
[25] Following these steps, Ms Bayram completed an investigation report which was
provided to managers within Yarra Trams including Victor Foudoulis, the Manager of Lines
at the Yarra Trams East Preston Depot. Amongst other things, the investigation report
recorded the allegations and Mr Farmer’s denials and that Ms Doyle and Dr Noseda remained
adamant that;
“A phone was clearly visible in his hand from the drivers cabin window as he passed
them at the intersection of Plenty road and Dunne street. Witnesses were asked if they
could provide a description of the mobile phone; they described it as being black in
colour, but were unable to ascertain which brand it is.”23
[26] The investigation report also recorded that a visibility test had been conducted and;
“This exercise showed that from a distance of 3 metres (outside of the tram) a driver
with the build of Farmer could be seen using a mobile device from the drivers cabin
window.”24
[27] The report noted Mr Farmer’s work history, including that he had been;
“...counselled, warned and given instruction in relation to the use of mobile devices
whilst in control of a tram on 4 occasions between 2007 and 2012”.25
[28] The investigation report concluded that;
“...based on the available evidence it is the view of this investigation that Driver
Farmer is in breach of the following rules:
Cardinal Rule no.2 - Handheld mobile devices
Rule 9 (3) General Conduct
Rule 23 (1) (3) (5) Driver distractions”.26
[29] Having indicated these findings, the investigation report contained a single
recommendation that Mr Farmer “undergo disciplinary counselling” in relation to these rule
breaches.
22 Ibid, PN 1440- 1446
23 Exhibit R4, attachment BB-4, p.9
24 Ibid
25 Ibid, p.10
26 Ibid
[2014] FWC 6539
7
[30] Mr Farmer was requested to attend a disciplinary meeting on 21 February 2014. He
received a notification of the meeting on the day prior to the meeting which said he was
“required to attend a disciplinary counselling interview”. The letter made no reference to
Yarra Trams considering that he might be dismissed, and advised that these matters would be
discussed at the interview;
“Breach of Cardinal Rule No 2- Handheld Mobile Devices
Breach of Rule No 23 - Driver Distractions
Breach of Rule 9- General Conduct
Service to date - previous breaches of the above rules”.27
[31] Mr Farmer’s witness statement records that at the meeting he was told that the
investigation had found as a fact, on the balance of probabilities, that he was using a mobile
phone; and that his explanation was not accepted even after showing those in attendance his
black auxiliary charger.28 Mr Farmer also recollects being informed the witnesses were
adamant he was using a phone which they said was black; he was informed that the
investigation showed it was possible for the witnesses to see from the vehicle into the tram
cockpit; that he was not permitted to see any of the reports, although his union representative
was given access to them before the interview but that he was not given the complete report;
and at the end of the interview he was dismissed.
[32] Several issues relating to the conduct of the meeting held on 21 February were raised
in the hearing of this matter, and which have relevance to the statutory criteria contained
within s.387 of the Act. These include;
A contention both by Mr Farmer and his union representative, Phil Altieri, who
also gave evidence in these proceedings, that they had not received a copy of the
investigation report prior to the meeting and that this was a departure from usual
practice on the part of Yarra Trams;
That when they were provided with a copy of the investigation report in the course
of the meeting they were not provided with the whole report;
That it appeared to each that Yarra Trams representatives had already made their
mind up about what is to be done as a consequence of the allegations and that they
were disinterested in hearing or exploring Mr Farmer’s side of the story, and as the
meeting progressed, they were reading from a script.
[33] These contentions of Mr Farmer and Mr Altieri were disputed by Yarra Trams.
[34] At the conclusion of the meeting, Mr Foudoulis told Mr Farmer that he was to be
dismissed. A letter to that effect, dated 24 February 2014, was subsequently provided to Mr
Farmer, which communicates the following;
“Dear Nicholas (sic),
Termination of Employment
27 Exhibit A4, p2
28 Ibid
[2014] FWC 6539
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This letter is to confirm the decision that was communicated to you in the presence of
your union representative at a disciplinary counselling meeting held at East Preston
Depot on Friday 21 February 2014.
You were interviewed in relation to a serious and repeated breach of Yarra Trams
Rules and Procedures with respect to the following;
• Cardinal Rule 2: Hand Held Mobile Devices
• Rule 9 (3): General Conduct; and
• Rule 23: Driver Distractions
These breaches were sufficient to warrant dismissal with notice. You were given an
opportunity to respond, which you did, however your responses were not considered
acceptable.
You were advised that Yarra Trams had lost trust and confidence in you and your
ability to modify your behaviour, and accordingly your employment was terminated
with effect from Friday 21 February 2014 in lieu of notice.
Arrangements will be made as soon as possible for your final pay, including four
weeks pay in lieu of notice, to be calculated and paid via EFT to your currently
nominated Bank account.”
CONSIDERATION
[35] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account the legislative factors set out earlier.
(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)
[36] It is of course the case that in considering whether or not there was a valid reason for
the dismissal of a person related to their capacity or conduct, that the Commission requires
satisfaction that the reason is “sound, defensible or well founded”.29
[37] However in matters such as this, in which the conduct of the person is said to have
involved misconduct, there is a need to subject the allegations to careful scrutiny, avoiding
“inexact proofs, indefinite testimony, or indirect inferences”.30 In considering the evidence, a
“proper degree of satisfaction is required having regard to the seriousness of the
allegations”31, noting that “the strength of the evidence necessary to establish a fact or facts
on the balance of probabilities may vary according to the nature of what it is sought to
29 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at p373
30 Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J
31 Budd v Dampier Salt Ltd 166 IR 407; [2007] AIRCFB 797, at [14]
[2014] FWC 6539
9
prove”.32 In a case such as this involving misconduct the Commission must determine
whether the conduct occurred.33
[38] Importantly, this matter involves allegations of serious misconduct and principally
whether Mr Farmer used his mobile phone contrary to policy. If he did, that in itself is
serious misconduct, being contrary to Yarra Trams’ Cardinal Rules 2, Rules 9 and 23, and
sufficient in Yarra Trams’ view to “warrant dismissal without notice” as set out in the
company’s letter of termination to Mr Farmer. In addition, if he did use his phone as alleged,
and did not admit that to Yarra Trams in the course of the investigation, then that dishonesty
may call into question whether Yarra Trams could have trust and confidence in him in the
future.34
[39] In this matter, the allegations made against Mr Farmer relate to a single event that took
place over a very short period of time. The only witnesses were some distance away and are,
in the course of giving evidence, entirely dependent upon their memory of what occurred,
with no assistance to be had from documentary, photographic or video evidence. The
seriousness of the allegations are such that if the event as alleged took place, then Mr Farmer
was in breach of the Yarra Trams Cardinal Rules.
[40] The evidence of Mr Farmer is that as the tram approached the intersection of Plenty
Road with Dunne Street/Kingsbury Drive, his bag spilled its contents onto the floor (which
included his phone and the auxiliary charger). He retrieved the items out of a concern for
safety and, as the tram crossed the intersection, he inspected the charger to see if it was all
right. His assumption is that this is what Ms Doyle and Dr Noseda saw and reported to Yarra
Trams.
[41] Both Ms Doyle and Dr Noseda gave a description in the hearing of what they observed
Mr Farmer doing as the tram crossed the intersection. Both say that Mr Farmer had an object
in one hand that was black, and that Mr Farmer was touching the object with the other hand.
Each gave a demonstration of what they meant about him touching the object. The
demonstration was of a person with a phone or screen-based device in one hand and the other
hand touching or swiping a screen as one might use applications or settings on a mobile
phone. Mr Farmer denies either that he had a mobile phone in his hand as the tram crossed
the intersection, or that he was using it.
[42] The evidence in these proceedings shows Mr Farmer owned at the relevant time and
had in his bag on the tram on 7 February 2014 a black auxiliary mobile phone charger and a
white mobile phone. Mr Farmer brought these objects to hearing and he was cross-examined
about his ownership of them. The cross examination did not disturb his assertion that he
owned these in February 2014 and that he had them with him on the tram on the day in
question, and that he had no other phone with him on that day.
[43] The evidence of both Ms Doyle and Dr Noseda about distances and timings associated
with the tram as it moved across the intersection had some consistency, but also some
variation. Both agree they first saw the tram when it was either on the other side of the
32 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, per Mason CJ, Brennan, Deane and Gaudron JJ,
at [2]
33 Edwards v Giudice and Others [1999] FCA 1836, [6] - [7], per Moore J
34 Streeter v Telstra (2008) 170 IR 1, see [23]
[2014] FWC 6539
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intersection, or part way across the intersection;35 and that each saw the tram only for a few
seconds as it passed by them. Dr Noseda’s evidence is that the tram was about halfway
through the intersection when she first saw the driver36 and that she saw the driver handling
an object in his hand for about 5 to 10 seconds37. Ms Doyle recollected the tram to be about
three metres away at its closest point.38 Dr Noseda’s recollection varied between it being one
and a half metres away when she first saw it39 to it being either one metre or three metres
away from her car at the tram’s closest point.40
[44] I am satisfied that each of Ms Doyle and Dr Noseda saw the tram as it crossed the
intersection and that each saw Mr Farmer driving the tram and that each saw him with a black
object in his hand. I am also satisfied that each saw him visually inspecting the object in his
hand. The evidence of both Ms Doyle and Dr Noseda is consistent with Mr Farmer’s own
evidence, with the exception of their contention that he held and was using a mobile phone, in
that he concedes he held in his right hand his black auxiliary phone charger41 as the tram
moved from the southern side of the intersection through to the tram stop on the north-eastern
side of the intersection.42
[45] However, on the basis of the evidence provided by each of Ms Doyle and Dr Noseda I
am unable to be satisfied that either saw Mr Farmer “using his mobile either texting or
scrolling whilst his tram was in motion” which is the principal allegation in the investigation
report. For the same reason I am unable to be satisfied that “a phone was clearly visible in his
hand from the driver’s cabin window as he passed” through the intersection. While I can be
satisfied that Mr Farmer held an object in his hand as it passed through the intersection,
critically I am unable to be satisfied that the object was a “mobile either texting or scrolling”
or “a phone”. I am unable to be so satisfied because each witness identified the object as
black and neither witness identified the object as the colour of Mr Farmer’s phone, which was
white. To accept the object in his hand as a mobile phone in the face of Mr Farmer’s
evidence about the colour and dimensions of his equipment would be to settle for something
less than a proper degree of satisfaction, and would be to rely on “inexact proofs, indefinite
testimony, or indirect inferences”.
[46] The documentary evidence in this matter includes the Yarra Trams’ “Rules and
Procedures”, which contain within them the tram company’s Cardinal Rules. Both Ms
Bayram and Mr Foudoulis gave evidence about the introduction and operation of the Rules
and Procedures and the Cardinal Rules. The edition of the Rules and Procedures containing
Cardinal Rules commenced in August 201343 and start with a message from the company’s
Chief Executive Officer which includes;
35 Transcript, PN 1030; 1256
36 Transcript, PN 1253 - 1255
37 Transcript, PN 1185
38 Transcript, PN 988, 992, 1038, 1127
39 Transcript, PN 1262
40 Transcript, PN 1187 and 1263
41 Transcript, PN 507 - 510
42 Transcript, PN 411 - 413
43 Exhibit R4, para 4
[2014] FWC 6539
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“Rules are important in that they set the safety and performance boundaries within
which a business operates. At Yarra Trams, rules help to reduce the risks associated
with operating across a large and complex network.”44
[47] Beneath a heading of “what are the major changes?”, the booklet contains the
following in respect of driver distraction;
“All mobile phones, transistor radios, multimedia devices or other electronic equipment
must not be used by drivers while in control of a moving or stationary tram. It is a
requirement that this equipment is switched off while the tram is in operation (unless at
a terminus).”45
[48] Within the booklet are eight Cardinal Rules which include Cardinal Rule 2, referring
to “hand-held mobile devices”. The rule states;
“NEVER operate a tram, plant or machinery while using a handheld mobile device.”46
[49] The notification provided to Mr Farmer prior to the disciplinary meeting on 21
February 2014 advised that Yarra Trams was investigating not only a breach of Cardinal Rule
2 but also a breach of Rule 9 (General conduct) and Rule 23 (Driver Distractions). The letter
advising Mr Farmer of his termination of employment advises he was found to have be in
breach of Cardinal Rule 2 and Rule 23 and, in relation to Rule 9, it specifies his breach was of
sub-rule 9 (3). Cardinal Rule 2 is referred to above and Rules 9 and 23 provide the following;
9 General Conduct (in the category of “Customers”)
“1. Drivers are to be courteous, respectful and polite to other employees and
passengers at all times.
2. Offensive behaviour or language between drivers or towards any other
person/s is not permitted and will be dealt with in accordance with disciplinary
procedures.
3. Drivers must not behave in any way likely to put public safety in danger or
undermine public confidence.
4. Drivers must not undertake activities outside working hours that may
undermine public confidence.”
23 Driver Distractions (in the category of “Tram Services”)
“1. Drivers must not allow themselves to be distracted while their tram is in
motion.
2. Drivers are to acknowledge passenger enquiries but must not communicate
further until the tram is stationary.
44 Ibid, attachment BB-1, p.4
45 Ibid, p.7
46 Ibid, p.22
[2014] FWC 6539
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3. The operation of any type of mobile phone, transistor radio, multimedia
device or any other electronic equipment by drivers while in control of a
moving or stationary tram is not permitted (except for hearing aids). This
equipment must be switched off while the tram is in operation but may be
turned on at a terminus.
4. Drivers must not wear any type of headphones or earpiece while in control
of a moving or stationary tram, even if the headphone or earpiece is not
connected.
5. Drivers must not read while in control of a moving or stationary tram. Only
table cards may be read when the tram is stationary.
6. Drivers must not be distracted from driving when consuming food and/or
beverages.”
[50] The Applicant and Ms Doyle and Ms Bayram each gave evidence about the safety
implications of loose items in the driver’s cabin. The evidence of each was that while it was
unsafe for items to be on the floor of the tram, retrieval of such objects might have to wait
until the tram was stopped.
[51] Mr Farmer’s evidence on this subject included that he reached down for some items
before the tram crossed the intersection and that some other items were retrieved when he
crossed the intersection and pulled up at a tram-stop. Only the charger was in his hand when
he crossed the intersection. Other items remained on the floor behind him and were picked up
on the other side of the intersection.47
[52] Ms Doyle’s evidence was that she would stop the tram to retrieve something that had
fallen down; and that she could not stop the tram across an intersection and in which case it
would be necessary to wait until she got into a platform stop, when it would be necessary to
open up the cabin door because the cabin is a very tight space.48
[53] Ms Bayram agreed with Ms Doyle that retrieval of loose items on the cabin floor
should only done if the tram was stationary and it was safe to do so; and that more than likely
it would be necessary for a driver to get out of their seat to be able to collect the item, but that
it may not be necessary to leave the cabin.49
[54] In relation to the three grounds of dismissal advanced by Yarra Trams, I make the
following findings about whether the conduct alleged against Mr Farmer occurred;
Cardinal Rule 2 – Hand-Held Mobile Devices
Because of the evidence given and the findings I have made, it is not possible
for me to find that the conduct alleged against Mr Farmer occurred. That is, I
47 Transcript, PN 797 - 799
48 Transcript, PN 1104 - 1105
49 Transcript, PN 1515 - 1528
[2014] FWC 6539
13
am unable to find that Mr Farmer operated a tram while using a handheld
mobile device.
The Yarra Trams Rules and Procedures do not define “hand held mobile
device”, however it would be consistent with the evidence to interpret such
phrase as referring to a prohibition on operating a tram, plant or machinery
while using a mobile phone. In this regard, I note while the Macquarie
Dictionary does not define “mobile device” it does define the word “mobile”.
Once meaning of the word “mobile” is a “mobile phone”, which is the only
one of 10 meanings that has the context of an object or device.50 I consider
therefore that a breach of Cardinal Rule 2 would entail using (whether
phoning, texting, reading or operating) a mobile phone while driving.
Rule 9 – General Conduct and Rule 23 – Driver Distractions
I am not satisfied that Mr Farmer behaved in a way likely to put public safety
in danger (which might amount to a breach of sub-rule 9 (3)).
Mr Farmer’s evidence is that his bag fell and spilled its contents and that he
retrieved what had spilled onto the floor. Other than the evidence that he was
at a busy intersection, there is no evidence that the intersection was objectively
more busy or dangerous than could be expected and that by corollary retrieving
the items had the potential to more significantly endanger public safety or
undermine public confidence than the alternative of not retrieving the items.
I find, however, that Mr Farmer’s action of inspecting the auxiliary charger as
he crossed the intersection could undermine public confidence, which would
amount to a breach of sub-rule 9 (3). There is, however, no evidence before
me about the relative severity of such a breach. That is, it is foreseeable that
certain actions of a driver might undermine public confidence in a greater
manner than others. I have no evidence as to whether the inspection of the
auxiliary charger might be at the greater or lesser end of such a spectrum.
I am also satisfied that Mr Farmer allowed himself to be distracted whilst his
tram was in motion (which is a breach of sub-rule 23 (3)).
The prospect that a tram rocks or lurches as it travels along is entirely
foreseeable, as is the likelihood that unsecured items might fall off shelves, or
out of open bags that fall off shelves. Mr Farmer’s own evidence was that his
bag had fallen off other times.51
As a result, the need to retrieve items spilled onto the floor is attributable, at
least in part, to a failing on his part. Even so, I am not satisfied that this
failing, on its own, rises to the level of it forming a valid reason for his
dismissal. The evidence also includes that the driver’s cab in the particular
model of tram is confined and that there is limited storage space and that the
shelf in question is an open shelf. This evidence allows the possibility that
50 Susan Butler (ed), Macquarie Dictionary, (5th ed, 2009), p1071
51 Transcript, PN 744 -745
[2014] FWC 6539
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even reasonable steps taken by a driver to secure their personal belongings in
the course of the shift may be insufficient to prevent the occasional tipping
over of a bag or other objects.
Despite this allowance on my part, I find that Mr Farmer had his personal
effects bag with him and that it was open.52 Experience with the bag tipping
over on prior occasions showed that, on the balance of probabilities, the bag
would similarly tip over and spill its contents again. Objectively, Mr Farmer
allowed himself to be distracted while his tram was in motion.
[55] On balance, and after finding that Mr Farmer did not breach Cardinal Rule 2, but that
he breached Rules 9 and 23, I consider Yarra Trams did not have a valid reason to dismiss Mr
Farmer when it did. The breaches of sub-rule 9 and Rule 23 are, in context, important
matters, but not so significant as to amount to a valid reason to dismiss. The breach of rule 23
potentially led to the breach of sub-rule 9. That is, by allowing his personal effects bag to be
in a position to tip and spill, Mr Farmer then needed to retrieve the items that spilled. While
he should not have inspected the charger after he picked it up, he did. There is, however,
insufficient evidence before me to lead to the view that those actions, of themselves, would
reasonably lead to such an undermining of public confidence as would require or allow Yarra
Trams to dismiss Mr Farmer.
[56] The evidence available to the Commission, and also to Yarra Trams at the time it
made the decision to dismiss Mr Farmer, was that, on the balance of probabilities, taking into
account the need for a proper degree of satisfaction having regard to the seriousness of the
allegations, Mr Farmer was not using a mobile phone at the time the tram crossed the
intersection. While the evidence of Ms Doyle and Dr Noseda was that they saw Mr Farmer
with a black object in his hand, close questioning of either in an objective manner by the
Yarra Trams representatives would have demonstrated to the company that, on the balance of
probabilities, the device may have been something other than a mobile phone, which calls into
question the witnesses recollection of what they saw Mr Farmer doing with his hands.
[57] Although Yarra Trams had a right to be concerned about the report of Ms Doyle and
Dr Noseda, an objective and potentially arm’s-length investigation might have demonstrated
to the company that their observations were not definitive and that, in the absence of other
corroborative evidence or the admissions of Mr Farmer, the company risked relying upon
“inexact proofs, indefinite testimony, or indirect inferences”.
[58] As a result, I find that, in the context of the whole of the evidence, Yarra Trams did
have not a valid reason for dismissal of Mr Farmer.
(b) whether the person was notified of that reason
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person;
[59] Taken together, these criteria require that fairness requires an employee is notified of a
valid reason for their termination before any decision is taken to dismiss them, so that they
can be given an opportunity to respond to the identified reason, and by corollary an
52 Transcript, PN 738
[2014] FWC 6539
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opportunity to respond is an opportunity provided before a decision is made to dismiss the
employee.53
[60] It is the case that Mr Farmer was notified of the reason for his dismissal before he was
dismissed. He had notice of the allegations made of him prior to the meeting held on 21
February 2014 and was given notice in the form of a “Call in Notice – Internal Disciplinary
Hearing” notification provided to him on 20 February 2014.
[61] There is, however, some concern relating both to the notification about the meeting
which was given to Mr Farmer on 20 February as well as about how the Yarra Trams
representative decided to dismiss Mr Farmer within the meeting on 21 February.
[62] As previously referred to, Mr Farmer was not provided with a copy of the
investigation report prior to the meeting on 21 February, when the evidence indicates that it
was made available to Yarra Trams managers by 18 February at the latest.
[63] The evidence of Mr Altieri and Mr Foudoulis in this respect is that Mr Altieri
requested a copy of the report prior to the meeting and that, somewhat vaguely, he was told to
speak to HR.54 Altogether this is unsatisfactory, especially within the context of the evidence
given by Ms Bayram that, with respect to the conclusion within her report that when she
recommended in her report that Mr Farmer “undergo disciplinary counselling in relation to
the following rule breaches” she meant that he be dismissed. Given such intent, the report
should have been provided to Mr Farmer at the earliest opportunity, and most certainly prior
to the meeting on 21 February. This is reinforced by Mr Foudoulis’ evidence that it was his
decision to dismiss Mr Farmer and that he did not receive direction from any of his superiors
to dismiss Mr Farmer.55 This being the case, the report, once finalised, and the uses to which
it would be put was within Mr Foudoulis’ control. Mr Farmer and his representative were
entitled to see the product of the investigation and the recommendation it made as soon as it
was completed.
[64] In addition to the question about the prior provision of the report, Mr Farmer puts
forward that the Yarra Trams representatives, and Mr Foudoulis in particular, were reading to
a script once within the meeting, seemingly as if a decision had already been taken. Mr
Altieri put forward that the Yarra Trams policy in respect of use of mobile phones appears to
have changed recently. He also put forward that, within the context of a set of managerial
“talking points” circulated prior to a union organised rally, that the company perhaps had a
quota of dismissals. The implication of the evidence given by Mr Altieri, as well as Mr
Farmer, is that by the time of the meeting on 21 February, Mr Foudoulis was in some way
under direction to terminate Mr Farmer’s services irrespective of what he might have said in
the meeting.
[65] On the other hand Mr Foudoulis’ evidence is unambiguously that it was his decision to
dismiss Mr Farmer. Notwithstanding this, the impression gained by me from Mr Foudoulis’
evidence, is that there was not a meaningful engagement with what Mr Farmer brought
forward to the meeting either by way of explanation, or in the form of the physical evidence
he had with him.
53 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [71]‒[75].
54 Transcript, PN 1854 - 1855; 2082 - 2083
55 Transcript, PN 2074
[2014] FWC 6539
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[66] I am therefore not satisfied that Mr Farmer was accorded an opportunity to provide
and have considered by Yarra Trams a defence of substance that would then be weighed and
taken into account before it made its decision about what should occur in relation to its
findings about the incident on 7 February 2014.
(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;
[67] The evidence demonstrates that Mr Farmer was accorded an opportunity to have a
representative in attendance at the meeting held on 12 February 2014 and the dismissal
meeting on 21 February 2014. No additional considerations arise in relation to this criterion
beyond the issues already referred to above about the notification and conduct of that meeting,
and in particular that the potential for dismissal was not intimated in the company’s
notification for the meeting on 21 February and that the investigation report had not been
provided to the meeting despite a request from Mr Farmer’s union.
(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
[68] Yarra Trams argue that Mr Farmer was dismissed because of his misconduct on 7
February 2014 and that he had previously been warned about the subject matter of the
misconduct on previous occasions.
[69] As referred to above, I have determined that I am unable to find that Mr Farmer
operated a tram while using a handheld mobile device; that I am not satisfied that Mr Farmer
behaved in a way likely to put public safety in danger or undermine public confidence; but
that I am satisfied that Mr Farmer allowed himself to be distracted whilst his tram was in
motion. The only finding that is overall negative to Mr Farmer is that in respect of being
distracted, and my finding in relation to that matter is that it did not, of itself, comprise a valid
reason for dismissal.
[70] Yarra Trams do not rely on Mr Farmer’s past conduct as reasons for dismissal,
although they took it into account in forming their recommendations in the investigation
report. As a result, within the context of these findings, the argument that Mr Farmer had
previously been warned about his behaviour has limited effect.
[71] Notwithstanding this observation, Yarra Trams submit that Mr Farmer’s employment
history shows an occasion in August 2007 in which Mr Farmer was found to have breached
the company’s policy with the use of an earpiece while driving; an incident in March 2008 on
a similar issue; a warning issued in September 2010 regarding the use of a mobile phone
while driving; and lastly counselling in 2008 also for the use of a mobile phone. In context, it
can be inferred that perhaps Yarra Trams might be more lenient toward a person in Mr
Farmer’s situation of a report about a breach of the company’s Cardinal Rules and Rules, but
without his employment history; however there was not direct evidence on this point.
[72] In Mr Farmer’s case, his employment history appears to have become merged to some
extent in consideration with what Yarra Trams believed him to have done in February this
year. However, I am not satisfied that the evidence about the extent to which Yarra Trams
relied upon Mr Farmer’s past history rises to the level of suggesting that Mr Foudoulis’
[2014] FWC 6539
17
decision to dismiss was taken because of, or for reasons that substantially include, Mr
Farmer’s employment history.
[73] Overall, however, I am satisfied that Yarra Trams had made Mr Farmer aware before
his dismissal of the consequences of using a mobile phone while driving.
(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
[74] I consider this to be a neutral criterion, with there being no evidence about the size of
the Respondent that would lead to the view that the size of Yarra Trams would be likely to
impact on the procedures followed in effecting Mr Farmer’s dismissal.
(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;
[75] The evidence includes that Yarra Trams has human resource management staff,
however there is no substantial evidence about the extent of their involvement in the decision
to dismiss Mr Farmer.
(h) any other matters that the FWC considers relevant.
[76] Counsel for Mr Farmer referred me to the decision of DP Booth in Nasrieh v
ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus,56 a matter involving a bus driver who
admitted using a mobile phone while in control of his bus57 and who, it was alleged, had four
prior occasions in which he had been observed using his mobile phone while in control of the
bus. Relevantly, DP Booth found that while the Applicant’s conduct in using a mobile phone
whilst in control of a bus constituted a valid reason for dismissal, the conduct did not meet the
higher threshold of serious misconduct (with reference to Regulation 1.07 of the Fair Work
Regulations).58 DP Booth then found the dismissal of Mr Nasrieh to be harsh and therefore
unfair, and subsequently ordered reinstatement.59 Without making any comment as to the
merits of reinstatement in this matter, I consider the circumstances in this matter to be
distinguishable to those in Nasrieh v ComfortDelGro. As DP Booth noted in her decision, the
case before her turned on its own particular facts, as does this one.
[77] I do not find any other matters that are relevant and which require being taken into
account.
[78] It is also appropriate to record that my decision in this matter fundamentally turns on
the extent to which Mr Farmer complied with Yarra Trams’ Cardinal Rules and Procedures.
Those rules do not prohibit employees from carrying mobile phones with them in their cabin,
or even prohibit their use during the course of a shift (allowing them to be turned on at a
terminus). To that extent, a mobile phone is an object that is permitted by Yarra Trams to be
within the drivers’ cabin in the same way might be a water bottle or a personal effects bag.
56 [2012] FWA 9617
57 Ibid, at [18]
58 Ibid, at [36] - [37]
59 Ibid, at [59] and [64]
[2014] FWC 6539
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[79] I have found above that Yarra Trams did not have a valid reason to dismiss Mr
Farmer, and that there were defects in the steps taken by the company to decide what it should
do as a result of its investigation. I consider that a more objective process of inquiry and
investigation, coupled with a more considered process of allowing Mr Farmer to put forward
his version of events, together with an objective consideration of what he had to say, would
have led the company not to dismiss him from employment.
[80] As a result, I find that Mr Farmer’s dismissal was harsh and that accordingly he was
unfairly dismissed within the meaning of the Act.
[81] Having made this finding, it is necessary for me to now consider a suitable remedy, if
any, in the manner dealt with in ss.390 - 393 of the Act. In order to assist this consideration, I
will give the parties until 5pm Monday 20 October to file such additional submissions and
witness statements as they wish to rely upon. If I consider that a hearing in relation to remedy
is required or either party makes a request for a hearing, and after taking into account the
provisions of s.399, and s.397, which requires the Commission to conduct a hearing in matters
involving facts the existence of which is in dispute, the hearing will be on Monday 27
October 2014 at 2pm.
COMMISSIONER
Appearances:
Mr A Newman (of Counsel) for the Applicant
Mr N Barkatsas (VECCI) for the Respondent
Hearing details:
2014.
Melbourne:
August, 4 and 5
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Price code C, PR555622
& THE FAIR WORK - - OMMISSION THE SEA
