[2015] FWC 4472 [Note: An appeal pursuant to s.604 (C2015/4900) was lodged against this decision - refer to Full Bench decision dated 14 October 2015 [[2015] FWCFB 6714] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Gabriel Soares
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2014/7350)

COMMISSIONER LEWIN

MELBOURNE, 3 JULY 2015

Application for relief from unfair dismissal – tram driver – cardinal rules of tramway operator – alleged use of mobile phone while operating tram – valid reason for dismissal – misconduct – dismissal not harsh, unjust or unreasonable

[1] This decision concerns an application made by Mr Gabriel Soares for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Soares was employed by Yarra Trams as a tram driver. Mr Soares’ employment was terminated on 29 April 2014.

[2] Mr Soares was born in East Timor and his first language is Tetum.

[3] Mr Soares was represented by Mr N Campbell of Counsel. Yarra Trams was represented by Ms S Bingham of Counsel. I granted permission for the parties to be represented accordingly because, in my view, Mr Soares could not fairly be expected to represent himself and in the case of Yarra Trams, I considered it would be unfair to Yarra Trams not to allow Yarra Trams to be so represented, taking into account fairness between Yarra Trams and Mr Soares, having granted permission to Mr Soares to be represented by a lawyer. The relevant statutory provisions are sections 596(2)(b) and (c) of the Act respectively.

[4] The conduct of the proceedings was somewhat elaborate due to difficulties coordinating suitable translating and interpreting services and the availability of Counsel for Mr Soares and Yarra Trams. This was largely due to the lack of readily available and sufficiently accredited Tetum translation and interpretation services in Melbourne. There are different dialects of the Tetum language and after one unsuccessful attempt to provide such services, it proved necessary for the Fair Work Commission (the Commission) to arrange for an accredited translator and interpreter with the correct dialect to travel from Sydney to provide the required service.

[5] Mr Soares was employed from June 2011 to 29 April 2014. The termination of his employment occurred on 29 April 2014 and confirmed by letter of 22 May 2014. The contents of that letter are set out below:

Hearing of evidence

[6] The following people gave evidence in this matter:

The background to the termination of employment

[7] The root cause of the events which lead to the termination of Mr Soares’ employment was a complaint by a passenger who travelled on a W class Tram which Yarra Trams concluded Mr Soares was operating on 13 January 2014. The passenger, Ms Fiona Sweetman, was a member of the travelling public. Ms Sweetman was and is unknown to Yarra Trams and Mr Soares, except as a result of the complaint and the subsequent investigation of the complaint. Ms Sweetman sent a “tweet” at 11.53pm on the night of 13 January 2014 as follows:

[8] Ms Sweetman provided a witness statement for the purpose of the hearing, gave evidence in chief affirming the statement and was cross examined. Ms Sweetman was an independent and entirely satisfactory witness. I consider her evidence was not degraded by cross examination in its material content. It is informative to set out Ms Sweetman’s witness statement in full:

[9] As an aide for consideration of their respective submissions, Counsel provided chronologies of events which are considered relevant to the analysis of the issues in the matter. I have attached the respective chronologies to this decision, as Appendix A and Appendix B.

Statutory provisions

[10] When considering an application made under section 394 of the Act which alleges that the termination of an employee’s employment is an unfair dismissal, within the meaning of the Act, the Commission must take into account matters specified in section 387. The relevant statutory provisions are as follows:

[11] I will deal with the matters prescribed by section 387 of the Act in order.

Valid reason

[12] The relevant principle which guides the determination of whether a reason for the termination of an employee’s employment is valid is stated in the case of Selvachandran, 4 which has been adopted by the Full Bench of the Commission in Boris Jurisic v ABB Australia Pty Ltd. 5 It is as follows:

[13] There is a dispute over whether Mr Soares was the driver of the tram on which Ms Sweetman travelled on the night of 13 January 2014.

[14] Before proceeding to deal with Ms Sweetman’s evidence and other evidence concerning what Ms Sweetman says occurred on the night of 13 January 2014, it is necessary to note some aspects of the journey of tram 114 which was the tram Mr Soares was operating at the relevant time. A copy of the Public Transport map of the route of Number 67 tram services is Appendix C to this decision. The record of the relevant journey of the tram Mr Soares operated that night forms a part of Exhibit A8, which is the document “Workplace Investigation Report” of Yarra Trams in relation to the events which lead to the termination of Mr Soares’ employment.

[15] It was submitted by Mr Campbell that consideration of Ms Sweetman’s evidence and information of the progress of tram 114 at the relevant time should combine to lead me to conclude that Ms Sweetman was travelling on another tram and mistakenly identified that tram as number 114. In this respect, in would seem to me that I would need to conclude that Ms Sweetman’s evidence was flawed in relation to the tram on which she was travelling when she observed the driver using a mobile phone. In my view, it is significant that Ms Sweetman gives direct evidence of the events of the night and her observation of the tram number was recorded shortly thereafter in her tweet.

[16] Ms Sweetman’s evidence of her identification of the tram as number 114 is stated at paragraph 13 of her witness statement.

[17] Ms Sweetman was cross examined by Mr Campbell as follows on the subject of her identification of the number of the tram on which she was travelling when she saw the driver operating a mobile phone:

[18] It was not put to Ms Sweetman that she was or could have been mistaken in her identification of the tram.

[19] As will have been noted, Ms Sweetman alighted at Stop 24, Leopold Street. It seems that the tram tracking technology of Yarra Trams does not record the time of arrival at all stops on Route 67. Timing occurs at the Commercial and St Kilda Road intersection and at St Kilda Junction. When Ms Sweetman’s “tweet” was sent, a short time had passed after her alighting the tram, for the reasons set out in her evidence.

[20] Apparently, this caused Yarra Trams, at first, to correlate the “tweet” and the progress of the tram at St Kilda Junction in the early stages of its investigation, after it became aware of the contents of the “tweet”.

[21] At this point, it is convenient to refer to Mr Soares’ witness statements where Mr Soares denies that he operated a mobile phone or device at the relevant time. The first statement is Exhibit A4 to the proceedings and was filed prior to the hearing.

[22] Before setting out the paragraphs of that statement, which refer specifically to the use or non-use of a mobile phone on 13 January 2014, it is necessary to provide an explanatory preface to the evidence of Mr Soares.

[23] After Yarra Trams began its investigation of Ms Sweetman’s complaint, Mr Soares provided information about an incident he said occurred on 13 January 2014 while he was driving the tram at the corner of Swanston Street and Queensberry Street, Melbourne. Clearly, this incident was not the subject of Ms Sweetman’s complaint. Yarra Trams had no awareness of this incident except that which arose from Mr Soares volunteering the information in the course of investigating Ms Sweetman’s complaint.

[24] I will set out the whole of Mr Soares’ first witness statement under the sub-heading 13 January 2014. It may be noted that the contents of paragraph 12 of this statement specifically concerns the complaint issued by Ms Sweetman.

[25] Mr Soares filed a further witness statement, which is Exhibit A5 to the proceedings, in which he expressly responds to paragraphs 12 to 15 of Ms Sweetman’s witness statement, at paragraphs two and three, as follows:

The mobile phone

[26] At this point it is convenient to deal with certain circumstances concerning the mobile device which Mr Soares had in his possession on 13 January 2014. It is deeply regrettable that the device which Mr Soares would have me accept is depicted in a photograph which is the attachment GS-4 to Mr Soares’ further witness statement, does not form part of the evidence in the proceedings. Even more regrettable are the circumstances in which this has occurred.

[27] Yarra Trams’ legal representatives communicated with Mr Soares’ legal representatives seeking discovery of Mr Soares’ mobile phone in the time leading up to the hearing. They were assured that the phone would be voluntarily produced at the hearing. Very shortly before the hearing, Yarra Trams’ legal representatives were informed that the phone had been lost.  9

[28] It is possible that appropriate examination of the data in the phone memory and, if necessary, enquiries of a relevant telecommunications service provider, may have exonerated Mr Soares, by proving that the phone had not been used in any way during the journey of Ms Sweetman or otherwise.

[29] The loss of such a valuable piece of evidence for the determination of the application in circumstances where Mr Soares’ legal representatives had agreed to voluntary discovery of the object is somewhat extraordinary.

[30] By way of observation, Mr Soares’ further witness statement was filed on Monday, 1 September 2014, some three days before Ms Bingham was advised, just prior to the commencement of the hearing on 4 September 2014, by Mr Soares’ legal representatives, that the mobile phone had been lost.

[31] In the circumstances, it is somewhat puzzling that at the time Mr Soares filed his further witness statement, he filed a photograph of the mobile phone. Although, it may be accepted that this photograph might have been taken some time prior to the phone being lost, for purposes other than the hearing of this matter. While this possibility must be allowed for, from the image of the device in Exhibit A5, it would seem unlikely to have been taken for insurance purposes. It is also possible that the photograph was taken for the purposes of the hearing and subsequently lost. In any event, taking the precaution of photographing an item of evidence to be exhibited in a proceeding before the Commission should not be criticised as an excess of prudence. Doing so proved prescient of the risk that the phone might be lost.

[32] Be that as it may, in the absence of the device itself and in the circumstances of the relevant evidence, the best evidence of what happened inside the drivers cabin of the tram Mr Soares was operating on 13 January 2014, around the time Ms Sweetman was travelling and alighting from the tram, is her evidence and that of Mr Soares.

[33] Under cross examination, Ms Sweetman was challenged about her observation of the phone used by the driver of the tram identified as 114. Ms Sweetman testified that:

[34] Mr Campbell asked Ms Sweetman to view the photograph of the phone, which was submitted as the phone owned by Mr Soares at the relevant time, which was lost between when the photograph was taken and the hearing. While the phone is not of the touch screen type, the high quality of the photograph of the phone clearly indicates the phone having a blue screen (attached as Appendix D to this decision).  11

The Cardinal Rules

[35] Yarra Trams’ Cardinal Rules are clear and in my view as far as they are relevant to this matter, well known by Mr Soares. The Cardinal Rules applicable are set out more extensively than in the letter of termination of Mr Soares employment below:

[36] It was for the breach of the Cardinal Rules in relation to the facts deposed to by Ms Sweetman, together with what Yarra Trams believed was dishonest or misleading responses during the investigation of Ms Sweetman’s complaint, that Yarra Trams decided to terminate Mr Soares’ employment.  13

[37] In the circumstances of this case, in order for me to reach the conclusion that Yarra Trams did not have a valid reason for the termination of Mr Soares’ employment, I would need to find that Mr Soares did not breach the relevant Cardinal Rules on 13 January 2014 by using a mobile phone or other device, contrary to the evidence of Ms Sweetman, or, if he did, independently arrive at a conclusion that the breach did not constitute a valid reason for the termination of Mr Soares’ employment. In my view, independent of any perception of misleading or dishonest statements by Mr Soares in relation to Ms Sweetman’s complaint, I consider the use of a mobile phone while operating a tram would be a valid reason for the termination of Mr Soares’ employment.

[38] In relation to the required finding of fact as to whether Mr Soares operated a mobile phone as testified to by Ms Sweetman, it was submitted by Mr Campbell that the proof required for such a finding, while subject to the civil standard, engaged the dicta of the High Court in the cases of Briginshaw v Briginshaw 14 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (Neat Holdings). 15 This, it was submitted, is because of the seriousness of the allegations and the consequences for Mr Soares of such a finding as to the relevant facts.

[39] The following extract from the High Court’s decision in Neat Holdings is pertinent to this submission:

[40] The issue of fact to be determined in this matter is not of the nature of fraud or criminal conduct. Moreover, I consider it a notorious fact, as evidenced by the public necessity for road traffic laws prohibiting the use of mobile devices while driving, that the relevant conduct is mundane. Indeed, the evidence for Mr Soares identifies a number of instances of Yarra Trams drivers using mobile phones while operating a tram. Accordingly, my finding is made on the balance of probabilities according to the evidence before me.

[41] I have decided to accept Ms Sweetman’s evidence in its entirety. I reject Mr Soares’ evidence that he did not use his mobile phone as described by Ms Sweetman’s evidence for reasons which follow.

[42] Clearly there is a difference of motivation between Ms Sweetman and Mr Soares. Ms Sweetman has no interest in this matter beyond testifying to the truth of her observations and the basis for her “tweet”.

[43] While it is submitted that Ms Sweetman was travelling on another tram and mistook the number of the tram when she sent the “tweet”, I accept Ms Sweetman’s unchallenged evidence that she (correctly) identified the tram as 114 shortly before she sent the “tweet.” Accordingly, I find that the tram was being driven at the time by Mr Soares.

[44] Ms Sweetman impressed as an intelligent and conscientious person. It is difficult to see what would have caused Ms Sweetman to send the “tweet” if she had no factual basis on which to send it. There is no basis for a finding that Ms Sweetman is and was at the relevant time anything other than an honest member of the public who is a regular user of public transport with legitimate and objective concerns for the safe operation of the tramway system.

[45] On the other hand, the self-interest of Mr Soares is of a significant magnitude. He may well have no recollection of using a mobile phone at the time Ms Sweetman was waiting to alight on the night of the 13th of January. Given the significance of the consequences for Mr Soares of Yarra Trams concluding that he did use his mobile phone, while operating the tram, if he did not recall doing so he would have a powerful reason to continue to believe that he did not do so.

[46] There is another aspect of the situation which may have been threatening to Mr Soares’ capacity for recollection, acknowledgement and comprehension of the facts referred to by Ms Sweetman’s evidence.

[47] In 2013, Mr Soares had been the subject of an investigation concerning a complaint of a similar kind. The complaint from the passenger on that occasion was as follows:

[48] The investigation report includes the following comment:

[49] This investigation was closed on the basis that no action would be taken against Mr Soares. Consequently, the complaint should be considered unproven for the purposes of any finding of fact by me about it. Nevertheless, it was the case that Mr Soares was interviewed about that complaint. It is inherently probable that, regardless of the undetermined nature of that complaint, Mr Soares would have had residual awareness of it as a part of his employment experience. It is entirely implausible that he had simply forgotten all about it when Ms Sweetman’s complaint came under investigation.

[50] One must therefore allow for some awareness on Mr Soares’ part that he was confronted by another allegation of like behaviour, to that of the 2013 complaint, when faced with notice that a complaint had been received about him using a mobile phone whilst driving a tram on 13 January 2014, some nine months later.

[51] I also find Mr Soares’ evidence that he informed Yarra Trams he had been the subject of a passenger complaining about him using a mobile phone at Swanston Street and Queensberry Street somewhat puzzling. Mr Soares’ evidence is that at that point in the tram journey, his mobile phone fell out of his pocket, through a hole in a pocket, onto the floor and that he picked it up and only briefly looked at the screen to check the time. This incident must have been very brief. If the phone was on the floor, it would seem unlikely that a passenger would notice it, much less complain that the driver was using it. Moreover, if Mr Soares picked the phone up, glanced at the screen and placed it in his pocket, one would think it would be a passenger with an eagle eye and a very high order of vigilance to address a tram driver about such conduct.

[52] Another aspect of Mr Soares’ evidence about what happened at the corner of Swanston Street and Queensberry Street on 13 January 2014, concerns his evidence of the phone falling out of his pocket. As already noted, Mr Soares claims that there was a hole in a trouser pocket (which his evidence maintains was caused by a bunch of keys) through which the phone fell. One must wonder why a phone would be placed in a pocket with a hole large enough for it to fall through. Likewise, one may ponder why one would return a phone to a pocket with a hole in it after it had fallen through the hole? If, in fact, the phone were returned to the other trouser pocket, with no such hole, that would provide a rational answer to the question. However, there is considerable suggestion in the evidence that both trouser pockets had large holes. Mr Soares also said that he could not really recall whether he returned the phone which fell on the floor to his bag or a pocket.  19 Included in a written report of the incident, mention is made of the phone being returned to Mr Soares’ bag.

[53] At paragraph 19 of Mr Soares’ first witness statement, when referring to a meeting with Mr Slattery, Mr Soares refers to what had happened at the corner of Swanston Street and Queensberry Street and how the mobile phone fell to the floor, Mr Soares says:

[54] Mr Soares repeated this evidence:

[55] There is something odd about this evidence concerning the storage of the mobile phone. I find the proposition that Mr Soares was using trouser pockets which were worn through with a hole or holes large enough to allow a phone to fall through to hold the phone and when it did fall through, returned the phone to one of the same pockets, to be entirely unconvincing. Along with contradictory suggestions in the evidence about possibly returning the phone to his bag, this evidence generally undermines my confidence in Mr Soares’ recollections about his handling of his mobile phone while operating tram 114 on 13 January 2014.

[56] Mr Mario Mizzi gave evidence that on 14 February 2014 he met Mr Soares to “discuss the matter” prior to a meeting with Yarra Trams. Mr Mizzi’s witness statement, at paragraph 10, includes the following:

[57] In my view, the evidence seeking to explain the details of the incident at the corner of Swanston and Queensberry Streets is so inherently implausible as to cause me to reject it. The account of the incident is thoroughly unsatisfactory. It does nothing to address the events the subject of Ms Sweetman’s evidence. The effect of that evidence is that I consider Mr Soares to be an unreliable witness with poor or confused recollection of the events of 13 January 2014.

[58] I consider that when Mr Soares first became aware of a complaint having been made by a passenger about him using a mobile phone while driving tram 114, he identified the challenge from the passenger at the corner of Swanston Street and Queensberry Street as the likely source of the complaint and invented an apparently innocent but highly implausible explanation of whatever actually happened at that location. As an observation, it appears that tram 114 did not stop at Queensberry Street during the relevant journey. Accordingly, the tram was most likely in motion when the interaction with the passenger identified by Mr Soares occurred. According to Mr Slattery’s evidence, Mr Soares claimed the tram was stopped at the relevant time.

Alleged inconsistency of explanation of events of 13 January 2014

[59] When Yarra Trams became aware of Ms Sweetman’s “tweet”, Mr Slattery immediately sought a meeting with Mr Soares. The meeting took place at approximately 3.15pm on 14 January 2014.

[60] Mr Slattery’s evidence is that he informed Mr Soares that a complaint had been received that Mr Soares was using a mobile phone in the vicinity of St Kilda Junction the previous night. Mr Slattery’s evidence about what happened at this meeting is contained in his witness statement between paragraphs 11 and 17, which is set out below, as it was amended when testified to:

[61] There is some ambiguity in the evidence having regard to Mr Soares’ evidence about what happened at the corner of Swanston Street and Queensberry Street. It is difficult to be entirely clear whether Mr Soares was responding to an event said by Mr Slattery to have occurred at St Kilda Junction or was thinking about his interaction with a passenger which he says took place at the corner of Swanston Street and Queensberry Street.

[62] If on 14 January 2014 Mr Soares’ reference to checking the time is to the event at the corner of Swanston Street and Queensberry Street, then his response to the complaint of Ms Sweetman, which was the matter of interest to Mr Soares, had been deflected to another event involving a passenger taking issue with Mr Soares using a mobile phone while operating a tram, which Mr Slattery was unaware of prior to 14 January 2014.

[63] I am unable to accept Mr Soares’ blunt denial of using a mobile phone on the night of 13 January 2014 as testified to by Ms Sweetman. I find that he did so as described in Ms Sweetman’s evidence.

[64] I consider Mr Soares breached the Cardinal Rules applicable to employees of Yarra Trams responsible for operating a tram, in particular, insofar as they are set out previously.

[65] Given the nature of the relevant Cardinal Rules, and the nature of Mr Soares’ conduct in breach of those rules, in the context where Mr Soares was responsible for the operation of a tram in a safe and lawful manner, I find that there was a valid reason for the termination of Mr Soares’ employment. Regardless of Yarra Trams’ Cardinal Rules, in my independent judgment, the conduct of Mr Soares operating a mobile phone was a valid reason for the termination of his employment.

Notice

[66] I find that Mr Soares was put on notice on more than one occasion of the reason for the termination of his employment prior to the termination of his employment. These occasions were on 14 January 2014 when Mr Soares was informed by Mr Slattery that a complaint had been received the night prior, on 23 January 2014 when the Special Day Report was discussed with Mr Slattery, on 14 February 2014 during a meeting attended by Mr Soares, Mr Mizzi and Mr Slattery and a further disciplinary meeting on 29 April 2014 attended by Mr Brady, Mr Soares, Mr Paul and Mr Slattery.

[67] The situation which crystallised at the meeting on 29 April 2014, after the lengthy investigation of Ms Sweetman’s complaint, is addressed by evidence given by Mr Brady as set out below:

Opportunity to respond

[68] I find that Mr Soares was provided with several opportunities to respond to the allegation that he used a mobile phone while operating a tram as complained of by Ms Sweetman. In particular, as observed above, there was such an opportunity as late as 29 April 2014.

Support person

[69] It is submitted by Mr Soares that he was denied procedural fairness in that he was interviewed on more than one occasion without a union support person (I will deal with this matter below as a relevant matter). However, on the evidence before me, I conclude that there was no refusal within the meaning of the statutory provisions. I consider Mr Soares did not request a support person in the particular and detailed circumstances such that a request by him was refused. In this respect, I accept Mr Slattery’s evidence of what happened when he discussed the matter with Mr Soares on 23 January 2014, which is summarised in Yarra Trams’ chronology appended.

Unsatisfactory performance

[70] In my view, Mr Soares’ employment was terminated for reason of misconduct, not poor work performance. In any event, on what is before me, Mr Soares’ work performance was not the subject of a warning.

Size of employer

[71] Yarra Trams is a large employer. On the evidence before me, this impacted on the procedures followed in effecting the termination of Mr Soares’ employment such that an extensive and formal investigative procedure was conducted and several meetings with Mr Soares took place, at which the substance of Ms Sweetman’s complaint and the investigation of it were discussed in detail and Mr Soares’ responses sought and recorded. Moreover, Mr Soares was told that Yarra Trams’ view was that his responses to the complaint were inconsistent, if not false in certain ways. Moreover, for several months while the investigation was conducted, Mr Soares continued to be paid by Yarra Trams.

Human Resource Management

[72] Yarra Trams has a centralised Human Resource Management function. However, while providing some advisory input, the investigation and the procedures followed to effect the termination of Mr Soares’ employment became the responsibility of Mr Peter Slattery and Mr Cecil Paul. In my view, this arrangement impacted in a manner whereby the procedures followed by Yarra Trams to effect the termination of Mr Soares’ employment were not fully in accordance with the provisions of the Yarra Trams Enterprise Agreement 2012 – Operations (the Agreement). I consider that the Yarra Trams Disciplinary Policy should have been followed as provided by clause 11 of the Agreement. I will further consider this matter in due course.

Other relevant matters

[73] I consider the length of Mr Soares’ otherwise satisfactory service and the effect of the termination of Mr Soares’ employment on his personal economic circumstances to be relevant considerations.

[74] I consider it would have been appropriate for Mr Slattery to arrange to have a union representative with Mr Soares on 14 January 2014 and 23 January 2014. I also consider the Yarra Trams Enterprise Agreement 2012 – Operations and its terms in relation to “Disciplinary Counselling” to be relevant.

[75] I find the absence of a previous warning for misconduct to be a relevant matter.

[76] It has been put to me that Mr Soares has been treated inconsistently in that other tram drivers have been subject to lesser sanctions for the same offence. I consider this to be a relevant matter. It was submitted that Mr Soares was harshly dismissed because other employees were warned for the use of mobile phones, rather than dismissed. I will take this submission into account.

[77] I consider Mr Soares’ evidence that he was paid as normal between 14 January 2014 and 29 April 2014 as a relevant consideration. I also consider Mr Soares’ evidence that he received payment in lieu of notice as a relevant matter.

Harsh, unjust or unreasonable?

[78] Taking into account all of the matters above, I now turn to consider whether the termination of Mr Soares’ employment was harsh, unjust or unreasonable.

[79] What will constitute a harsh, unjust or unreasonable dismissal was considered by the High Court of Australia in Byrne v Australian Airlines Ltd:

[80] I have found that there was a valid reason for the termination of Mr Soares’ employment. The reason I have found was valid was the use of a mobile phone while operating tram 114 as testified to by Ms Sweetman, which was a breach of the Cardinal Rules of Yarra Trams. The conduct is of a serious nature. The public safety considerations are obvious and significant. They exist independently of Yarra Trams’ Cardinal Rules. On what is before me, there is no basis for finding that the termination of Mr Soares’ employment for such conduct was unjust or inherently unreasonable.

[81] As will have been noted by reference to the appended chronologies, Yarra Trams was not quick to dismiss Mr Soares and went to some considerable lengths to investigate Ms Sweetman’s complaint and to establish extensive procedures prior to effecting the termination of Mr Soares’ employment, which allowed Mr Soares to know what the issues placing his employment in jeopardy were.

[82] Mr Soares had considerable time and several opportunities to respond to the reason for the termination of his employment. The complaint was received on 14 January 2014. Between that date and the meeting on 29 April 2014, Yarra Trams conducted a detailed investigation and provided opportunities for Mr Slattery, Mr Mizzi and Mr Brady to understand and respond to the reason for the termination of Mr Soares’ employment.

[83] There was some suggestion that these procedures were fundamentally flawed and Mr Soares was denied procedural fairness, as contemplated by the relevant statutory provisions. In this respect, I have previously referred to evidence given by Mr Brady who represented Mr Soares on 29 April 2014.

[84] While it would have been appropriate for Mr Soares to have had a union support person with him at all times, ultimately he was represented by a local representative and an official of his union on more than one occasion prior to the decision to terminate his employment. In my view, looked at all round, I do not consider the procedure adopted by Yarra Trams prevented Mr Soares from knowing of and being heard in relation to the complaint of Ms Sweetman. However, due to the “hands off” role adopted by the Yarra Trams Human Resources department, I consider there were a number of instances during the procedure whereby Yarra Trams, through Mr Slattery and Mr Paul, by no fault of their own, did not comply with the requirements of the Yarra Trams Disciplinary Policy.

[85] A more complex issue in this matter concerns Yarra Trams’ conclusion that Mr Soares provided conflicting statements concerning the events of 13 January 2014. I accept Mr Slattery’s evidence that on 14 January 2014, he put to Mr Soares that a complaint had been received that he operated his mobile phone at St Kilda Junction. Nevertheless, it is possible that Mr Soares was talking about the event he has referred to at some length at the corner of Swanston and Queensberry Streets when he answered to the effect that he did not use the mobile phone and only looked at the time. Assuming so, however, it would seem that two passengers observed Mr Soares using or handling a mobile phone while operating tram 114 on 13 January 2014. One, a male person who spoke to Mr Soares at Swanston Street and Queensberry Street, and Ms Sweetman who sent the “tweet” after alighting from tram 114 at Leopold Street. Whatever happened at the corner of Swanston and Queensberry Streets, in my view, Mr Soares’ evidence of the details of that event inspires no confidence. On the contrary, in light of my acceptance of Ms Sweetman’s evidence, I am left with the fact that there were two instances of Mr Soares handling his mobile phone while operating a tram on 13 January 2014.

[86] Mr Brady gave evidence that a number of tram drivers who had used a mobile phone were warned that they would face disciplinary action up to dismissal should they repeat such conduct. However, there is a distinction in the circumstances under which those warnings were issued, rather than the employee concerned being dismissed, from those before me. Mr Brady gave evidence that none of those employees had denied that they had used their mobile phones when faced with the allegation that they did so.

[87] There is the possibility that had Yarra Trams not reached the conclusion that Mr Soares gave confusing and apparently inconsistent or false statements, he may not have been dismissed, but rather may have been subject to a warning that repetition of the relevant conduct would lead to the termination of his employment. However, as has often been observed by courts and tribunals concerned with the determination of matters in relation to alleged unfair dismissals, the Commission does not put itself in the chair of the employer. Rather, the tribunal must arrive at an independent, objective judgment, from its own vantage point, of whether a dismissal is harsh, unjust or unreasonable, based upon the facts and circumstances of each case, taking into account all relevant features of the statutory scheme under which the application before it falls to be decided.

[88] Regardless of any ambiguity about Mr Soares’ answer to Mr Slattery on 14 January 2014 and possible confusion concerning conflicting or inconsistent statements by Mr Soares in response to Ms Sweetman’s complaint, Mr Soares has maintained abject denial of using his mobile phone, as I have found he did, around Leopold Street on 13 January 2014. In essence, this denial, as it is submitted before me, is at least partly based upon Ms Sweetman wrongly identifying the number of the tram in her “tweet,” which I have rejected. Given my finding that Mr Soares did use his mobile phone as stated by Ms Sweetman, Mr Soares’ denial and lack of contrition combine so as to lead me to conclude that the decision to terminate his employment was not unjust or unreasonable.

[89] In my view, the conduct of Mr Soares complained about by Ms Sweetman is of sufficient gravity to make it difficult to fairly judge the decision to terminate Mr Soares’ employment as harsh. I do not consider that, in all the circumstances of the case, the penalty of dismissal is disproportionate to the gravity of the misconduct, notwithstanding Mr Soares has not previously been subject to discipline for misconduct.

[90] Mr Soares’ service with Yarra Trams is close to three years. While this length of satisfactory service must be recognised, I would not describe it as long service of sufficient weight to cause me to conclude that the termination of Mr Soares’ employment was harsh in the factual circumstances of the case.

[91] I have no doubt that the consequences for Mr Soares of the loss of his employment was adverse to his personal economic circumstances. In this respect, it is worthy of note that Mr Soares was suspended without loss of pay for several months prior to the termination of his employment, to enable a thorough investigation of Ms Sweetman’s complaint and provide Mr Soares with what I consider, was substantial procedural fairness. Mr Soares gave evidence that he was paid as usual between 14 January 2014 and 29 April 2014.  26 Moreover, while Mr Soares was summarily dismissed, he was paid an amount of around $5,000.00 in lieu of notice after the termination of his employment,27 although there was a delay in such payment.

[92] I consider such payments associated with the procedures adopted by Yarra Trams have resulted in a “fair go all round” in the individual circumstances of this case to mitigate adverse effects on Mr Soares of the termination of his employment for conduct on 13 January 2014. The substantive procedures and the relevant payments combine to lead me to conclude that the failures of Yarra Trams by not following all of the terms of the relevant disciplinary procedure prescribed by the Agreement, does not give rise to a conclusion that the procedures which were followed to effect the termination of Mr Soares’ employment lead to harsh treatment. I will observe, however, that my conclusion is based entirely on the particular facts and circumstances of this case and that Yarra Trams’ Human Resources department would be acting in the best interest of Yarra Trams to ensure full compliance with the disciplinary procedure at all times. In different circumstances, non-compliance could give rise to a decision that such non-compliance resulted in the termination of an employee’s employment being harsh, unjust or unreasonable.

[93] For all of these reasons, I am unable to be satisfied that the termination of Mr Soares’ employment was harsh, unjust or unreasonable. The application is therefore refused. An order to give effect to this decision dismissing the application will be issued accordingly.

Seal of the Fair Work Commission with Commissioner Lewin's signature

COMMISSIONER

Appearances:

Mr N Campbell of Counsel for the Applicant.

Ms S Bingham of Counsel for the Respondent.

Hearing details:

2014.

Melbourne:

September 4, 24.

November 20, 21.

2015.

Melbourne:

February 24, 25.

Appendix A – Applicant’s chronology

Appendix B – Respondent’s chronology

Appendix C - Public Transport map of the route of Number 67 tram services

Appendix D

 1   Exhibit A4, “GS-3”.

 2   Exhibit R3, “FS-1”.

 3   Exhibit R3.

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

 5   [2014] FWCFB 5835.

 6   Above n 4, 373.

 7   Transcript Day 3, PN3088 to 3093.

 8   Exhibit A4.

 9   Transcript Day 1, PN92.

 10   Transcript Day 3, PN3065.

 11   Exhibit A2, “MM-3”.

 12   Exhibit R7, “CP-1”.

 13   Exhibit R5, [49].

 14   (1938) 60 CLR 336.

 15   (1992) 110 ALR 449.

 16   Ibid, 449 to 450.

 17   Exhibit R5, “PS-1”.

 18   Ibid.

 19   Transcript Day 4, PN4155.

 20   Exhibit A4.

 21   Exhibit A5, at 11.

 22   Exhibit A1.

 23   Exhibit R5.

 24   Transcript Day 5, PN485 to 493.

 25   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 26   Transcript Day 4, PN4277 to 4279 inclusive.

 27   Transcript Day 4, PN4272 to 4274 inclusive.

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