AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Sexton, John
and
Pacific National (ACT) Pty Ltd
(U2002/5282)
VICE PRESIDENT LAWLER |
SYDNEY, 14 MAY 2003 |
Termination of employment - whether termination harsh unjust or unreasonable - differential treatment of comparable cases - application under s.170CE (1) dismissed
DECISION
[1] This is an application by Mr John Sexton ("the Applicant") pursuant to s 170CE(1)(a) of the Workplace Relations Act 1996 ("the Act") for relief in respect of his termination of employment on the ground that the termination was harsh, unjust or unreasonable.
[2] The Applicant was employed as a locomotive driver by Pacific National (NSW) Pty Limited ("the Respondent"). The Applicant had been employed by the Respondent and its predecessor organisations for some 23 years, with 15 of those years as a locomotive driver. He was summarily dismissed on 4 September 2002 following an investigation into a derailment, which occurred on 15 August 2002.
THE INCIDENT
[3] The Applicant's dismissal arose out of a derailment that occurred at the Boral Siding at St Peters on 15 August 2002. There was little or no dispute in relation to most of the relevant facts. The Applicant and his fellow driver, Mr Dennis Milgate, were operating Pacific National service 5WS2. The derailment incident occurred during a shunting operation in which a locomotive driven by Mr Milgate was used to propel about 30 wagons from the main line into the Boral Siding. The Boral Siding diverged from the main line by means of a structure known as an x-frame. A short distance down the siding line from the x-frame, the siding line split into two lines at a set of points. Those two lines travelled in parallel. One serviced the Boral facility. The other serviced a facility operated by Blue Circle Cement.
[4] The locomotive driven by Mr Milgate was propelling the wagons from the rear and consequently Mr Milgate was unable to observe the track down which the wagons were to be shunted. The Applicant's role, as the "shunter" or "ground driver", was to control the operation. Specifically, his duty was to alight from the train, check that the points had been set correctly and then observe the passage of the train into the Boral siding giving Mr Milgate appropriate directions by two-way radio. Mr Sexton admits that he failed to check that the points were set correctly. In fact they were set incorrectly with the result that the wagons in service 5WS2 were shunted down the wrong sideline and collided with a set of stationary wagons that were sitting in the Blue Circle Cement siding causing the rear wagon to run off the end of the siding line and over a conveyor belt pit containing the main walkway from a car park used by Boral's employees. The wagon's rear bogie partially detached and swung into the pit.
[5] It is not in dispute that the pit was the main access route used by employees at the Boral plant when travelling to and from their work car park. It was not contested that the incident could have resulted in death or serious injury to any person who was in the walkway at the time the incident occurred.
[6] On 31 March 2001 the Respondent issued System Operational Notice SON No: OPS 03/01 in relation to shunting procedures ("System Operational Notice"). This notice was in the following terms:
"Safe shunting in yards and Terminals
An analysis of recent accident investigations have revealed a lack of alertness and non-adherence to procedures by shunting staff in many yard derailments and collisions. In particular the failure of shunting staff to precede/pilot all propelling shunting movements has resulted in a high proportion of yard shunting accidents.
To eliminate any misunderstanding the following instruction will immediately apply when carrying out propelling movements for any rail shunting movement:
A competent employee undertaking propelling shunting movements must
1. Maintain constant contact with the locomotive driver in accordance with National Rail's voice communications protocols
2. Check all points in the direction of travel prior to the leading vehicle traversing the points. Where points have been "trailed through", the driver must contact the ground shunter/driver, who is then required to confirm that the points are correctly set before the next shunt movement takes place.
3. Be in a position where the propelling movement is fully observable for both sides of the leading wagon in advance of the shunt movement
4. Be positioned on the ground in advance of the shunt movement or on the leading wagon end step in the direction of travel
5. Not remain inside of any motor vehicle while the shunting instructions are being given to the locomotive driver.
Should there be any concerns at the interpretation of this system operational notice, the local Manager must be contacted and the competent employee must not make a localised judgement without proper advice."
(emphasis in original)
[7] The Applicant signed an "Acknowledgement Receipt - SON 03/01" on 30 May 2001 signifying that he had "received and comprehended Systems Operations Notice 03/01 issue 2". The Applicant had also been subjected to a shunting performance appraisal on 23 July 2001.
[8] The Respondent contended that the Applicant had breached each of items 1, 2, 3 and 4 in the System Operational Notice. It was common ground that "National Rail's Voice Communication Protocols" required radio communications every five seconds. Mr Sexton did not seek to maintain compliance with that standard but rather indicated that compliance with such a standard was impractical and that he had maintained regular communication with Mr Milgate that was sufficient in all the circumstances.
[9] It was conceded that Mr Sexton breached item 2 in the System Operational Notice. The main factual contest between the parties was in relation to items 3 and 4 of the System Operational Notice. Mr Sexton gave the following account of the incident in his statement (Exhibit 2):
"After locking the frame into position, I turned to walk into the Boral Sidings, I noticed that I could not walk directly along the rail line owing to a large quantity of rails, prefabricated turnouts and boxes of equipment belonging to the Rail Infrastructure Corporation (the Government owned track owner in NSW) stacked adjacent to the frame and along the rail line for approximately 20 - 30 metres.
Concerned over tripping over these hazards, I walked out to the far side of the obstruction and headed directly to the access gate. I then called to the co-driver, by the radio, and advised him to commence propelling the train into the siding.
Concentrating on the obstacles and issuing instructions to the driver on the radio, I overlooked checking the points leading into the Blue Circle siding.
As I walked towards the unloading bins I periodically looked over my shoulder and advised the co-driver that he was right to keep coming back and I actually stopped once or twice to turn around to observe the movement of the wagons.
Shortly after I entered the Boral gate adjacent to a large green shed, I momentarily lost sight of the rear of the train (for about 15 - 20 seconds) and advised the co-driver of this fact, further explaining that the train still had a considerable distance to travel.
I continued to walk further into the Boral siding and once again visually checked the train but did not notice that it was travelling on the wrong road into the Blue Circle cement sidings due to the fact that I was positioned ahead of the shunt at a distance that caused my view to be distorted by a parallax effect.
It was at this time that I was preparing to walk behind some weldmesh fencing adjacent to the Boral amenities block when I heard a bang and looked around to see five cement wagons moving backwards in the Blue Circle Cement siding. I immediately instructed the co-driver to stop the shunt, which he did. The train and cement wagons continued for approximately 15 metres before coming to a stand with the rear bogie of the last wagon falling into the underpass of the conveyor pit at the Boral aggregate unloader.
I then advised the co-driver what had happened and the co-driver secured the locomotive and he made his way to the derailment site where we inspected the damage."
Mr Sexton substantially adhered to this version of events in his oral evidence.
[10] A plan of the relevant area was tendered in evidence (Exhibit 10) and was marked in various ways by Mr Sexton during this evidence. A facsimile of Exhibit 10 is Attachment A to this decision. The point marked S2 was where Mr Sexton commenced walking around the obstruction referred to in his statement. The dotted line is the path that he claims to have followed. The point C is where he claims he made the call to Mr Milgate to commence shunting the wagons. The point G is an open gate between the corner of a substantial "green shed" and the Boral siding line. The point V is where Mr Sexton indicated that he lost sight of the wagons. S3 is the point marked by Mr Sexton to indicate where he was standing at the time the collision occurred. There was some tension between this point and the point indicated for that event by Mr Sexton during his interview with Mr Edwards.
[11] The impression created by Mr Sexton's statement is that having made a decision in the legitimate interests of safety not to walk between the stacked rails and the track, Mr Sexton was somehow obliged to follow a route that prevented him from assuming a proper position from which to observe the lead wagon of the train as it was shunted. Moreover, there was some focus during the evidence on whether strict compliance with item 3 of the System Operational Notice was impractical or unsafe. During cross-examination Mr Sexton sought to characterise the Respondent's position as requiring him to walk backwards - something that he considered as unsafe. Mr Sexton sought to ridicule the suggestion that strict compliance with item 3 of the System Operational Notice was practical by suggesting that would involve a situation whereby he would walk several metres away from the train, stop and turn, radio for Mr Milgate to start the train, wait until the train had travelled several metres then tell Mr Milgate to stop the train before he turned and walked several metres further - repeating this process for the whole of the shunt. He indicated that such an approach could turn a ten-minute operation into an hour and a half operation.1
[12] Given the central importance of these aspects of the matter, a view of the scene of the accident was conducted during the first day of the hearing.
[13] It was apparent at the view and I find that:
(a) It was entirely possible for Mr Sexton, had he been minded to do so, to have safely assumed a position from which he could have observed the lead wagon at all times as it proceeded from the x-frame into the siding and past the points (at least until the lead wagon was adjacent to the gate) in compliance with item 3 in the System Operational Notice. The gate marked G on Exhibit 10 was such a position.
(b) The stack of rails and other items adjacent to the x-frame in no way prevented Mr Sexton from complying with item 3 in the System Operational Notice.
(c) Beyond the stack of rails and other items adjacent to the x-frame there was no obstruction for some tens of metres before the gate was reached and that the natural path to the gate was more or less parallel to the rails and close to them. The ground in this area, although uneven, was clear of obstructions. In particular the dotted line marked by Mr Sexton on Exhibit 10 exaggerates the impact of the rails etc. on any path he was obliged to follow by virtue of that obstruction.
(d) In particular, the points were well clear of the stack of rails and other items adjacent to the x-frame. This obstruction in no way prevented Mr Sexton from safely approaching the points and checking that they were correctly set in compliance with item 2 of the System Operational Notice.
[14] In the present case it was entirely practical, and indeed in the light of the view, obvious, for Mr Sexton to have walked to the points and checked them and then walked to point G before calling Mr Milgate and signalling for him to commence the shunting. From this vantage point the propelling movement would have been fully observable for both sides of the leading wagon in advance of the shunt movement from the x-frame and across the points until the lead wagon was proximate to the gate on the Boral siding line. Mr Sexton could then have called Mr Milgate to stop the shunt before repositioning himself at point F3 or thereabouts to observe the balance of the shunt. This would have complied with item 3 of the System Operational Notice and would have involved only one stoppage of the train during the whole of the shunting movement. Moreover, it was apparent from the view that the Applicant's failure to comply with items 2 and 3 of the Standard Operational Notice were the cause of the derailment: compliance with either of those items in the manner suggested above would have averted the derailment.
APPLICANT'S RECORD
[15] This was not the first time the Applicant has been involved in a serious safety incident. The Applicant was also involved in a derailment of a Pacific National wagon at the Boral siding on 12 December 2000. As a result of this incident, an investigation was conducted by the Respondent and the Applicant was issued with a formal written warning on 24 May 2001. That letter bears the following handwritten annotation:
"John was particularly open and frank during the investigation and was clear about accepting responsibility for the collision and how to avoid it in the future by propelling into the sidings and unloading toward Marrickville."
During cross-examination, the Applicant agreed that this statement was accurate2.
[16] The Applicant was also involved in several other incidents, namely:
· 2 April 1997 - the Applicant was driving a train which derailed during a shunting operation;
· 27 July 2001 - the Applicant collided with wagons at the BHP Cringilla exchanged sidings during shunting operations when the Applicant failed to respond to a shunter's instructions and propelling a further 60 meters without receiving correct radio instructions.
· 9 November 2001 - the Applicant was found to have failed to correctly "cut-in" a locomotives braking system which resulted in a collision between the locomotive and wagons whilst shunting in the Sydney Operations Yard; and
During cross examination, the Applicant took issue with the use of the term "collision" being used to describe the incidents on 27 July 2001 and 9 November 2001, describing them both as being in each case a "heavy couple up"3. For present purposes I am prepared to assume as correct this characterisation of those incidents.
CONSIDERATION
[17] Section 170CG(3) of the Act governs the Commissions inquiry into whether a dismissal has been harsh, unjust or unreasonable. It is in the following terms:
"s.170GB(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant."
In addition, s.170CA(2) of the Act provides:
"The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned."
I now turn to consider each of the matters that I am required to have regard.
s170CG(3)(a) - Valid reason
[18] In order for a reason for termination to be a "valid reason" within the meaning of s.170CG(3)(a) the reason must be "sound, defensible or well founded" and "a reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason to be valid"4. In considering whether a reason is valid "it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical, common-sense way to ensure that the employer and employee are each treated fairly"5. Determining whether a reason is valid requires an objective analysis of the entire factual matrix. However in examining whether the reason for the termination is valid, it is not the role of the Commission to substitute is view for that of the employer but to assess whether the employer had a valid reason: Watson v Mermaid (1996) 142 ALR 681 at p. 685.
[19] It is appropriate to bear in mind that the seriousness to be attached to acts of neglect as a justification for termination will vary according to the circumstances, including in particular the nature of the work and the consequences of neglect. In Baster v London and Country Printing Works [1899] 1 QB 901 Darling J observed (at p.p. 903-904):
"Neglect as often arises from forgetfulness as from anything else; and, if the forgetfulness is with respect to an important thing it may well, in my view, be good ground for dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might not even justify complaint or remark; but to forget to do a thing, which, if not done may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty. ... The lives of hundreds of [people] may be sacrificed because of something done, or not done, in a moment of forgetfulness by a man in change of machinery. To any one who knows about the working of mines and railways in this country, and remembers that a moment of forgetfulness may cost the lives of a hundred men, it is impossible to give weight to the contentions put forward for the appellant - that forgetfulness is not neglect unless it is habitual, and that forgetfulness whilst in charge of complicated machinery should be treated with exceptional leniency."
[20] In Alidair Limited v Taylor (1977) ICR 446 Bristow J on behalf of the English Employment Appeal Tribunal held: (at 453 - 54):
"In our judgment there are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure of that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger-carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into possible effects of, for example, thalidomide, the driver of the Manchester to London express, the driver of an articulated lorry full of sulphuric acid are all in situation in which one failure to maintain the proper standard of professional skill can bring about and make a disaster."
In my opinion, these principles are applicable in the present case when determining whether there was "a valid reason for the termination related to the capacity or conduct of the employee" within the meaning of s.170CG(3)(a).
[21] I have concluded that the Respondent had a valid reason for the termination related to the conduct of the Applicant. In this respect, I find:
· The applicant was aware of and failed to comply with items 2 and 3 of the Standard Operational Notice, Pacific National's procedural guidelines as to the performance of shunting operations by its employees. In particular:
· The Applicant failed to "check all points in the direction of travel prior to the leading vehicle traversing the points" as required by item 2 so as to ensure that service 5WS2 was propelled into the Boral siding and not the Blue Circle Cement siding. The Applicant concedes in his statement, I think correctly, that an obstruction of the sort he described did not absolve him of his duty of correctly setting and checking the points during the shunting procedure.
· The Applicant failed to assume "a position where the propelling movement is fully observable for both sides of the leading wagon in advance of the shunt movement" as required by item 3 of the Standard Operational Notice in circumstances where it was entirely practical for him to have done so.
In this respect, the Applicant's conduct was also in breach of his responsibilities pursuant to the National Rail Corporations Enterprise Agreement No. 4 (as varied) in that he did not adhere to National Rail's policies, and perform quality work in a safe and responsible manner in accordance with personal competencies and experience and National Rail's performance standards.6
· As the Applicant himself admitted, the accident could have resulted in serious injury, or even death if a person had been in the walkway at the time of the derailment.
· The Applicant had received a warning following a derailment during shunting on 12 December 2001 (see below).
· The Applicant caused the derailment of a Pacific National wagon at the Boral siding in December 2000, also whilst conducting shunting operations. By the Applicant's own admission, this accident could also have resulted in serious injury or death.
· The accident giving rise to the Applicant's termination resulted in approximately $35,000 worth of damage and jeopardised the Respondent's relationship with Boral, with whom it has a $15 million contract.
[22] There was some debate as to whether the Applicant failed to observe the requirements as to radio protocol during shunting. I accept that the sound of aircraft overhead may have interfered with his capacity to do so. I have not taken this matter into account in determining that the Respondent had a valid reason to terminate the Applicant.
s170CG(3)(b) - Whether the Applicant was notified of that reason
[23] It was not in contention that the Applicant was not notified sufficiently of the reasons for his dismissal. In particular, Pacific National wrote to Mr Sexton and outlined clearly the reasons why the Respondent was considering terminating his employment and invited his response (Exhibit 4).
s170CG(3)(c) - Whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the Applicant
[24] It was not in contention that the Applicant was given an opportunity to respond to the reasons given by the Respondent for his dismissal. The Applicant was interviewed by Mr Edwards on 15 August 2002 and again on 20 August 2002. Mr Edwards was the representative of the Respondent charged with investigating the incident and recommending action against the Applicant. The Applicant conceded that on both of these occasions he was given an opportunity to tell Mr Edwards what happened and fully explain his conduct.
[25] Following these interviews and Mr Edwards investigation, a letter admitted into evidence as Exhibit 4 was received and signed by the Applicant. That letter outlined the findings of Mr Edwards investigation, and concluded:
"Please respond by outlining reasons for your actions and other matters you feel should be considered. Please send your written response in an envelope marked "confidential" to my attention at:
Ron Edwards
Pacific National
PO Box 1206
Auburn NSW 1835
...
As stated previously, a written response in relation to the above is required by no later than 14:30 hrs on Tuesday the 3rd of September 2002. You will be further required to attend an interview at 15:00 hrs on Tuesday the 3rd of September at the office of the Regional Operations Manager - Sydney whereby you may verbally explain the contents of your written reply in relation to this incident to both myself and the NSW/QLD Intermodal State Manager."
The Applicant provided a explanation of his conduct by letter dated 30 August 2003 (Exhibit 5).
[26] In cross-examination, the Applicant also conceded that on 3 September 2003, he attended an interview with Mr Edwards and Mr Perkins, with Mr Barden of in attendance, where he given an opportunity to explain his conduct on 15 August 2003 to the company, and any other factors that he wanted them to take into account in considering whether to terminate his employment7. At that interview, Mr Barden was given an opportunity to make submissions on the Applicant's behalf, and a number of emails (Exhibit 7) were presented in support of the Applicant's position.8
S.170CG (3)(d) - Warning of unsatisfactory performance
[27] The Applicant was issued with a written warning, which he acknowledged as having received on 7 June 2001 in relation to the incident on 12 December 20019. During the Applicant's oral evidence, some tension arose as the whether he was willing to accept responsibility for the derailment which occurred on that day. During cross-examination, the Applicant was emphatic that this incident was not the result of a breach of the safe shunting procedures. I sought to clarify the Applicant's evidence10:
"THE VICE PRESIDENT:... Ms Hoctor was asking you questions about the letter of 24 May at page 150 she drew your attention to the handwritten annotation on page 151:
John was particularly open and frank during the investigation and was clear about accepting responsibility for the collision and how to avoid it in the future by propelling into the siding and unloading toward Marrickville.
There seems to me to be a tension between you accepting responsibility on page 151 and what is in paragraph 23 [of the Applicant's Statement] where you are suggesting that it wasn't - you seem to be suggesting it wasn't your responsibility. Can you assist me to resolve that tension. ...
MR SEXTON: No, I am not actually trying to make out in the paragraph that it wasn't my responsibility. I believe that the Boral personnel had been trained in the basic shunting movements and hand signals and so forth and on this occasion the chap sort of gave me a kind of a vague hand signal which, you know, I thought these blokes are not experts in shunting they are just sort of - I just interpreted that as meaning, come towards me. What he was actually saying was, bye-bye, ta-ta, take it out and split it, stand the wagons aside. Now, I accept responsibility in the sense that, okay, with my experience I guess I should have conferred with him, walked down to him possibly and conferred with him: Did you mean come back one or - but I took it on face value and the derailment occurred."
I am satisfied that the warning in relation to the incident which occurred on 12 December 2001 pertained to safety during shunting procedures and is relevant to the current proceedings.
s.170CG(3)(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.
s.170CG(3)(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.
[28] In Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace11, Lacy SDP considered the manner in which the Commission is to approach an analysis of cases under these provisions. His Honour stated12:
"In each of paragraphs (da) and (db) the Commission is required to have regard to the degree to which a particular phenomenon would be likely to impact on the termination of employment procedures. Read literally neither paragraph (da) nor paragraph (db) posits as the primary consideration matters of fact. In each case the requirement relates to an assessment of the degree of likelihood of impact. It does not require an assessment of the actual impact of the specified phenomenon, but rather the degree to which it would be likely to impact."
I have adopted this approach. In the present case the Respondent is a large organisation with dedicated human resource management specialists or expertise. These factors would be likely to impact on the procedures followed in effecting a termination because a business of that size with dedicated human resource management specialists or expertise can be expected to have developed guidelines and procedures which management are expected to follow and which afford procedural fairness to the employee who stands accused of serious misconduct. There is no suggestion that the Respondent failed to follow its own procedures in this regard. I am satisfied that the procedures followed by the Respondent were fair and afforded the Applicant procedural fairness before the decision to terminate was taken. The matters referred to in paragraphs (da) and (db) of s.170CG(3) do not have any operation adverse to the Respondent in the present case.
s.170CG(e) Any other matters that the Commission considers relevant
Expression of regret and apology
[29] It is appropriate to take account of the expression of regret and apology containing in the Applicant's letter to Mr Edwards of 30 August 2002:
"I regret and sincerely apologise to both Pacific National and Boral for the occurrence of this incident and any damage it may have caused, whatever the nature of such damage..."13
The value of this expression of regret and apology is somewhat diminished by the approach taken by the Applicant in the hearing of this matter. That approach was one by which he sought to excuse or justify his alleged failure to comply with item 3 of the Standard Operational Notice by reference to the obstruction constituted by the stack of rails and other equipment adjacent to the x-frame. It became apparent on the view that this obstruction did not in any meaningful way prevent the Applicant from observing the requirements of item 3.
Age and length of service
[30] It is relevant that the Applicant was 54 years of age at the time of the dismissal, and had worked with the Respondent and its predecessor for some 23 years. The personal and economic consequences of his termination were potentially devastating. Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a "fair go all round".
Positive performance by the Applicant
[31] The Applicant tendered a bundle of emails (Exhibit 7) which he contended demonstrated his positive performance as an employee of the Respondent. These emails demonstrate, amongst other things, that the Applicant was active in identifying problems and making suggestions as to solutions for problems or improvements. I have taken these matters to account in the decision I have reached.
Differential Treatment of Comparable Cases
[32] The Applicant submitted that the treatment of other cases by the Respondent is also a relevant consideration. Specifically the Applicant relied upon the treatment of one David Mathie who was involved in a derailment in circumstances that were similar in some respects to the present case. The Applicant also relied upon the treatment of Mr Milgate (who received a warning).
[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been "harsh, unjust or unreasonable". In National Jet Systems Pty Ltd v Mollinger14 the Full Bench concluded that in the particular factual circumstances it was appropriate for the member of the Commission at first instance to have regard to different treatment afforded to another employee involved in the same incident.15 That case involved the termination of the first officer of an aircraft over incident where the flaps of the aircraft were retracted too soon following takeoff. The Captain on the same aircraft was not terminated notwithstanding that he also bore responsibility for the incident. It is apparent from the reasoning that on the particular facts of the case there was no proper basis for distinguishing between the two individuals and consequently the non-termination of the Captain was a factor in favour of a finding that the termination of the first officer was harsh, unjust or unreasonable.
[34] In Serco Gas Services Pty Ltd v Alkenamde16 the Full Bench adopted the observation of the Full Bench in National Jet Systems that
"There is little doubt that s170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances."
and continued17:
"We do not think there is any justification in the context 170CA(2) of the Act for implying that a consideration of the comparative treatment of other employees is only relevant to the extent that it demonstrates conduct on the part of the employer which may be regarded as oppressive or discriminatory on some unlawful grounds."
[35] Moreover, in Serco Gas Services the Full Bench considered a submission that the decision in Loty and Holloway v The Australian Workers' Union18 (the decision from which the notion of "fair go all round" in s.170CA(2) is drawn) "is consistent with the notion of employers treating different classes of employees differently provided that the individual is given a fair go as between that employee and the employer and the employer's conduct is a rational and logical consequence of that circumstance". The Full Bench agreed that Loty's case "does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round."19
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round" within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing "apples with apples". There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.
[37] In Hepburn v Department of Justice Office of Corrections20 Spender J found that a decision by the Department to terminate a prison officer who had established a relationship with a prisoner "was not based on a genuine consideration of the circumstances of her case and of a penalty appropriate to those circumstances" but rather "to avoid the embarrassment" the Department had experienced in another case21. On the question of comparative treatment Spender J found that the decision maker had "given no or scant genuine consideration" to a number of relevant matters including "the desirability of parity or equality of treatment with other disciplinary breaches"22 and concluded23:
"It is trite that every case has to be decided on its own facts. But the evidence of these five instances, imprecise as it is to detail, lends force to the submission, which I accept, that there was such a disconformity between the actual breach of discipline of which Ms Hepburn was guilty and the penalty imposed on her as to require the conclusion that termination of her employment was not for a valid reason."
That conclusion had already been established by other evidence. More importantly, it is clear from the reasons that Spender J had sufficient detail of the "five instances" to reach the conclusion that "disconformity" to which he referred were gross24. The Full Court of the Federal Court dismissed an appeal against the decision of Spender J.25
[38] In Electricity Commission of New South Wales t/a Pacific Power v Nieass26 the Full Commission of the Industrial Relations Commission was concerned with an appeal against a decision ordering the reinstatement of five employees terminated for the fraudulent manipulation of an electronic work timing system. The Full Commission inter alia considered the issue of consistency of treatment by an employer:27
"The Commissioner dealt exclusively with what he saw as being inconsistent punishment. We have serious doubts whether alleged inconsistency of punishment should form part of the consideration of the reasons for intervention under s.246 in the manner in which the Commissioner say was appropriate. The response to misconduct is a matter of discretion. The time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide. It is desirable that employers where they can should exercise leniency. Employers should not be discouraged from such a course by labouring under the disability that once a benign view is taken in one case that no other view is available." (emphasis added)
[39] Under s.246 of the Industrial Relations Act 1991 (NSW) the Commission had jurisdiction to deal with a claim in respect of a dismissal that was "harsh, unjust or unreasonable". In my opinion the emphasised passage is equally applicable to a consideration of whether a termination is "harsh, unjust or unreasonable" under s.170CE and s.170CG of the Workplace Relations Act 1996 (Cth) and the Commission ought not allow the use of differential treatment as a factor in determining that a particular termination is harsh, unjust or unreasonable to develop in such a way as to act as a disincentive to employers to show leniency in appropriate cases.
The treatment of Mr Mathie
[40] The Applicant relied upon a Performance Management Interview Form relating to one David Mathie (Exhibit B). That document relates to a derailment of a single wagon at the Boral siding on 12 September 2001. The Respondent had in effect claimed as against Mr Mathie that he had failed to observe items 1 and 3 of the Standard Operational Notice. Mr Mathie received a warning. Witnesses called by the Respondent were cross-examined to the effect that Mr Mathie's case was comparable to that of the Applicant. Mr Edwards, the relevant manager of the Respondent, disagreed. The effect of his evidence was that the treatment of the two individuals was in fact consistent because Mr Mathie's incident was his first incident and he was treated in the same way that the Applicant had been treated in relation to the Applicant's first derailment at Boral (ie. in December 2000): both received a warning.28 I accept Mr Edwards' evidence in this regard. Mr Ross on behalf of the Respondent identified other points of distinction between the two cases: Mr Mathie's case did not involve a failure to check points and the consequences in terms of damage and the potential for death or injury were more serious in the Applicant's case. Mr Mathie's case is not properly comparable to the Applicant's case primarily because Mr Mathie did not have a prior safety warning at the time of his incident at the Boral siding.
[41] The affidavit of Mr Ross annexes a table29 which summarises "three relevant incidents involving safework breaches by Pacific National employees during 2002"30. The table indicates that in relation to two of the incidents employees were dismissed whereas in the third incident the relevant drivers were issued with a warning. Each of the incidents involves facts different to those in the present case. None of those incidents assists the Applicant. If anything, they demonstrate that the Respondent has dismissed other employees who were guilty of breaches of safe working procedures resulting in an accident.
[42] Even if Mr Mathie's case has been more closely analogous to the Applicant's case I would not be inclined to view that the differential treatment of Mr Mathie rendered the Applicant's termination unjust, harsh or unreasonable. A single comparator based on an unrelated incident would ordinarily not be sufficient to justify such a characterisation, particularly where there are apparent counter examples. In the absence of exceptional circumstances, such and approach would run counter to the important policy considerations referred to in Electricity Commission of New South Wales t/a Pacific Power v Nieass31.
The treatment of Mr Milgate
[43] Mr Milgate received a warning in relation to the incident on 15 August 2002. However, his circumstances are readily distinguished from those of the Applicant. Mr Milgate was driving the engine and was not performing the functions of the shunter. That task fell to the Applicant. The immediate and substantial cause of the accident was failure of the Applicant to observe the requirements of items 2 and 3 of the Standard Operational Procedure. Mr Milgate's contribution to the accident was inconsequential by comparison. The reasons given by the Respondent for the differential treatment of Mr Milgate were that he relied upon the instructions given by Mr Sexton; that he had not received a previous formal warning in relation to shunting collision or breach and that he was under supervision and mentoring with a new permanent co-driver at the time.32 I accept that Mr Milgate's circumstances were such that it was entirely appropriate that he be treated differently to the Applicant.
CONCLUSION
[44] Having considered the matters specified in s.170CG(3) and the requirement in s.l70CA(2) that in an application in respect of a termination of employment a "fair go all round" is to be accorded to both the employer and employee, in all the circumstances I have come to the firm view that the termination of the application was not harsh, unjust or unreasonable. In the context of the previous incidents in which the Applicant was involved and the previous warning, the seriousness of the Applicant's breaches of procedure in the incident giving rise to his termination, the seriousness of the derailment that was caused by those breaches and the broader consequences of such breaches for the Respondent justified the termination of the applicant notwithstanding his age and length of service. I dismiss the application under s.170CE(1).
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
Mr Barden for the Applicant
Ms Hoctor for the Respondent
Mr Furlan for the Respondent
Hearing details:
2002.
Sydney:
December 10 to 11.
Printed by authority of the Commonwealth Government Printer
<Price code F>
Attachment A
4 Selvacandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Northrop J) at p 373
6 Clauses 14.1.3 and 14.1.4 respectively.
9 Attachment RJE13 to Exhibit A
14 Giudice J, Polites SDP and Gregor C, 18 March 1999, Print R3130
15 ibid at [25] - [27]. See also Serco Gas Services Pty Ltd v Alkenamde, per Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [6]
16 Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [5]