Garland, Robert v State Transit Authority [1997] FCA 850

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of judicial registrar - no point of general principle

Workplace Relations Act 1996 (Cth)

ROBERT GARLAND v STATE TRANSIT AUTHORITY

NI 4061 of 1995

Madgwick J

Sydney

15 July 1997

IN THE FEDERAL COURT OF AUSTRALIA )) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 4061 of 1995 ) GENERAL DIVISION )

BETWEEN: ROBERT PETER GARLAND

Applicant

AND: STATE TRANSIT AUTHORITY

Respondent

JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 15 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application for review is dismissed. 2. The original application for relief by the applicant is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 4061 of 1995 ) GENERAL DIVISION )

BETWEEN: ROBERT PETER GARLAND

Applicant

AND: STATE TRANSIT AUTHORITY

Respondent

JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 15 JULY 1997

EX TEMPORE REASONS FOR JUDGMENT

(Revised from transcript)

HIS HONOUR: In this matter the applicant, Mr Garland, seeks a review of a decision of a judicial registrar. Mr Garland claims that his employment by the State Transit Authority, which I will call the STA, was unlawfully terminated by his employer on 30 March 1994. As the termination of employment provisions of the then Industrial Relations Act 1988 (Cth) came into operation on 30 March 1994, Mr Garland must show that his employment was then terminated in order that this Court will have jurisdiction. The real question is whether Mr Garland voluntarily resigned his employment on 10 March 1994. This matter was litigated before the Transport Appeal Board in appeal number T171 of 1994 and a decision was given on 16 August 1994. That body expressed the conclusion, in substance, that Mr Garland had indeed so resigned and determined that, on that account, the Board had no jurisdiction in the matter. However, the Board continued: "Whilst this determination concludes the matter the Board further concludes that the acceptance of the letter of resignation came to the notice of the appellant certainly not later than 6 May 1994 but the documents purporting to be appeal documents were not received until 15 June 1994, well outside the statutory period of 21 days in which the notice of appeal is required to be lodged with the secretary. The documents before the Board therefore do not constitute a valid appeal and the papers are marked 'No Jurisdiction'." It seems to me that the Board was really deciding the matter upon the basis that, assuming there was a disciplinary determination against Mr Garland which could have given rise to an appeal to the Board, nevertheless his appeal was late and the Board had no jurisdiction to determine the matter, but in deference to the evidence and argument that had been put before it, the Board expressed its views and conclusions upon the resignation issue. Difficult questions concerning issue estoppel might possibly arise in some cases, but it seems to me that, had the Board's decision been the judgment of a court, one would say that its findings about the supposed resignation were merely inessential remarks insofar as its necessary conclusions of law and fact were concerned, and that no issue estoppel would arise. In any case I prefer to deal with the matter for myself entirely afresh. The case is an unfortunate one. Mr Garland suffers from an underlying mental illness which ebbs and flows in its severity, among other things causing him more or less distress. He has been treated for many years and it appears that most of the time his condition is adequately controlled by medication. The case is doubly unfortunate because he was assaulted on more than one occasion in the course of his work as a bus driver for the STA; he had had medical attention and seems to have been in need of psychological attention at or about the commencement of March 1994. On 3 March 1994 there were made known to him concerns felt by his officers in charge at the Randwick Bus Depot about apparent failures by him to account for some hundreds of dollars in notes he had collected in the course of his work as a bus driver. Mr Garland ably explained before me the system whereby accounts are kept of amounts due by bus drivers at the end of a driving shift. The drivers produce such coins as they have, which are fed through a coin counter. Notes are dealt with in a different way. The buses contain a device which imparts information to a so-called "smart card" as passengers pay or are credited with payment by the bus driver upon entering the bus. Back at the depot, the smart cards can be read and the amount which the bus driver ought to have received in cash from the passengers is computed. The drivers are to make up in notes the short fall between the amount so determined from the smart card, and the coins which have been counted on the counting machine. There are formal requirements for acquittance. Mr Garland acknowledges that there were in fact some hundreds of dollars which he did not so acquit but says, as I understand it, that he was in no good condition psychologically, that he overlooked doing it (or something of the kind), but that certainly there was no dishonest intent and no disrespect for his employer's systems. He gave evidence that he was gravely upset by the untoward incidents of violence which he had sustained as a bus driver and that these were compounded by misunderstandings with his employer. On one occasion he was blamed for an incident for which he was blameless. He had had time off work. He felt that his superior officers were unsympathetic to his position and condition. No doubt they had performance targets of some sort to try to meet, and they complained to him about the way in which his absences and behaviour were costing the Authority money. Mr Garland perceived that this was a persistent motif in their conversations with him. Some discontent was expressed to him on 3 March when he returned to the depot early and indicated that he was going off work sick. He had been employed by the Authority for some years. He apparently had a considerable amount of sick leave available to him and he had other leave credits which he could have utilised against any absence caused by physical or psychological ill health. He also believed that he had a good workers' compensation case and he has put medical material before me from his treating psychiatrist which is very supportive of that position. On 10 March, he went with his then de facto wife, Ms Bubba Fisher and their children to the depot for the purpose of filling in a claim for workers compensation. Upon his arrival it seems that management were also concerned to arrange a disciplinary inquiry which Mr Garland says he was very willing to undergo in relation to the unaccounted money collected as fares. It seems that arrangements were made for that disciplinary proceeding to be held a few days later. Mr Garland and Ms Fisher sought the advice of union delegates Mr Bryson and Mr Bourke. Apparently they had a more pessimistic view of Mr Garland's prospects in the disciplinary proceeding than Mr Garland himself had. Their advice to Mr Garland was that he ought to resign. One of them said that he would be able to find Mr Garland another job after his resignation with the STA at another depot. Mr Garland, to say the least, was unattracted to this advice. This advice, however, appears to have concerned and alarmed his de facto wife, as well it might. She had the welfare of their children, perhaps, as the matter uppermost in her mind. She asked whether there was any chance that the police might be brought in. One or the other or both of the union delegates said that the possibility could not be ruled out. Thereafter it seems that Ms Fisher added her advocacy to that of the union delegates in urging Mr Garland to resign. It seems likely to me that Ms Fisher wrote out one resignation for Mr Garland to sign but he refused to sign it and tore it up. She and the union advisers persisted however, and she wrote out (what was exhibit A before the judicial registrar) a blue coloured STA form known as a "general report form". On the balance of probabilities, the signature thereon is that of Mr Garland. On the balance of probabilities, it can only have got there on 10 March 1994, and, on the balance of probabilities, it was not put onto a blank form but placed on the form by Mr Garland at the time, under pressure but in the knowledge that he was signing his resignation. Ms Fisher gave evidence and impressed me as doing her best to assist the court. Her recollection of the matter is somewhat faint as to detail but she does remember a blue form, she did identify her writing on it and she does remember Mr Garland's reluctance to sign. Her evidence at first was that she believed he did not sign, and that he continued throughout to resist. A good deal of other material was tendered, some of it from Mr Garland himself, in an ill-advised effort to rely on differences of detail, which would confirm that in fact he resigned. Evidence was given before me by Mr Rowley, the operations controller at the time at the Randwick depot. He gave evidence that one of the union delegates gave him Mr Garland's signature on a blue form like exhibit A. However, Mr Garland and his wife came to see him soon after. Mr Garland said he was seeing a counsellor and asked would he be able to withdraw the resignation if, after discussing the matter with his counsellor, he wished to do so. (Mr Garland confirmed in his evidence that he was seeing a counsellor about this time). Mr Rowley replied that that would not be possible and Mr Garland thereupon asked to have his resignation back. Mr Rowley let him have it back. Some time later, Mr Rowley saw from his office that Mr Garland and Ms Fisher were still in the car park and he asked Mr Fahey, another officer with a supervisory role over Mr Garland, to ask him to move on. Mr Fahey came back claiming that Mr Garland had again given him his resignation. Mr Rowley says that, in order to clear the matter up one way or the other, he went down to the car and, in effect, asked Mr Garland whether he really wanted to resign. Mr Garland indicated that he did. The balance of the evidence, on the probabilities, is very strongly that Mr Garland did indeed voluntarily resign on 10 March. A further question arose in my mind fairly early in the proceedings, when I saw some of the medical material tendered by Mr Garland and when I saw the account of the investigating police who apparently saw Mr Garland within weeks of 10 March. On 10 March Mr Garland would have been - and I use the word in its ordinary sense - considerably stressed by the events of the day. His medical condition is such that stress may exacerbate his symptoms. The investigating police advised their superiors that, even if the evidence raised some inference of dishonesty by Mr Garland, the matter should not be pursued because, on account of the mental condition they had observed in him, the matter would undoubtedly come to nothing in court. It is obvious therefore why I was concerned to try to investigate what Mr Garland's state may have been on 10 March. I do not say anything to the positive discredit of Mr Rowley or Mr Fahey, because nothing justifies me in so doing, but I do not close my eyes to the possibility that people in management positions often have pressures upon them that may induce them to perceive matters in various ways that may differ from what a detached observer considers is going on. Hence I prefer to give no particular weight to the assertions by Mr Rowley that Mr Garland was entirely rational. However, it is quite impossible to put aside the assessment of Ms Fisher. As much as anybody, she must have known when Mr Garland was in a relatively good condition and when he was not. She was herself concerned shortly before the 10th March because she had not seen him for some days. She must have had an eye to his condition. She is a sensible sort of woman. She had realised that Mr Garland had not been in touch with the STA since 3 March and, practically, put him in touch with management to get things sorted out. Had she felt that Mr Garland was in no condition properly to consider his future, I have no doubt that she would have brought this to the attention both of STA management and the representatives of Mr Garland's union. I also do not shut my eyes to the fact that, occasionally, one finds union delegates in a particular workplace who have their own fish to fry with management, for one reason or another, and who, on occasions (particularly with a fractious and troublesome member as I think probably they perceived Mr Garland to be) tend to act more as an adjunct to management than as the shield of their member. However, nothing apart from Mr Garland's likely state of upset would hint at such a situation on 10 March and there was much that would militate against it. It is notorious that in the field of public transport employment, trade unionism has been long and strongly established. The union delegates were bus operators themselves and they were fundamentally well-disposed towards Mr Garland, it seems to me, in that they wanted to avoid the risk of trouble from the police, and one was prepared to help him by finding him a job elsewhere with the STA. I believe that it is likely that, had either of the union delegates thought they were dealing with a man who was in such a state of upset that he should not be making decisions on behalf of his own and his family's economic future, it would not have been difficult for them to call a pause with management, and it would be unlikely to have worsened their own relations with management for them to have tried to do that. Mr Garland did not really deny the incident recounted by Mr Rowley where Mr Rowley gave him back the resignation first tendered, except that Mr Garland says that he never signed any such document knowingly. In fairness to Mr Rowley, he had a couple of hundred or more bus drivers under his operational control. There were established procedures. This was a large employer. In such a situation there is unlikely to be much that is new under the sun. The impression I have of Mr Rowley was that procedures could just take their course; either there would be a disciplinary inquiry (the result of which he would abide one way or the other) or there would be Mr Garland's resignation. He simply wanted to know, it seems to me, which course Mr Garland actually did prefer, in the light of contradictory indications that he, Mr Rowley, had received on 10 March. I indicated that the matter fell to be decided on the balance of probabilities. This is in deference to arguments put by Mr Garland. I should say at the outset that I think Mr Garland honestly believes that he never did resign and probably nothing I now say or that anyone else might say will ever persuade him to the contrary. Mr Garland says, and there seems to be no dispute about it, that it is unusual for a "general report form" to be printed on blue paper. Mr Garland says he has never seen one before. He had never had any difficulty getting such forms on white paper and he proffered the view that no other bus driver would have seen a blue form either. By contrast, Mr Rowley, in an apparently convincing way, was able to explain that the STA did have supplies of blue paper for another purpose, and when white paper of the particular kind usually used for printing out the general report forms was not at hand, resort was had to blue paper. There was nothing very remarkable about this. What is exceptionally telling, however, is that Ms Fisher distinctly remembers "bluey-green" forms and the blue form , in exhibit A, does tend also to a slight greenish tinge. Next, the general report form, after announcing that that is what it is, has an injunction in brackets that reads, "headings must be filled in". This refers to two boxes at the top of the form. On the left, there is a space for the depot stamp to be affixed and attention is drawn to this by the imprint on the form of the words "Depot Stamp". The blue form has no sign of a depot stamp having been stamped on it. On the right of the form, the other box has the words "Identification Disc" and the normal system is that the drivers run their identification disc (a card) with raised letters and figuring them through a machine so as to imprint it on the form. No information from such a disc appears on exhibit A. According to Mr Garland, in other circumstances the STA is keen to deny the validity of general report forms which do not have both the depot stamp and the identification disc imprint. He points out that the combination of both is an assurance to the employee as well as to the Authority that it truly is the employee who is filling in the report form. Mr Garland refers to occasions where, on these forms, people have apparently "been volunteered" for service at other depots; in other words, involuntarily transfers have been sought to be foisted upon them. On the blue form in the box for the identification disc the following appears: "Garland R 722249" This is written in blue biro and the formation of the letters and numerals suggest that they were written by someone other than Ms Fisher, who filled in the text in the middle of the page, or the signatory of the form, whom I am quite satisfied was Mr Garland. He says that the form should not be accorded significance without those safeguards. If it were a question as to whether it was administratively right or desirable that his resignation should have been accepted, there might be something to be said for this. However, that is not the question before me, and it is not for me to import such artificial and technical bureaucratic requirements. On the face of it, Mr Garland knowingly signed a written resignation, in whatever form, and was in a mental state such that he knew what he was doing. That is a clear and unambiguous indicator that he did indeed resign on 10 March 1994. As to whether the signature is his, numerous other signatures of his are in evidence and available for comparison and it appears to me to be his. His former de facto wife had no doubt that it was his signature. Mr Garland then points out that he is unlikely to have authorised his resignation in this or any other fashion on 10 March because there was no need for it and he stood to lose by it: for example, he would not have available to him his untaken sick leave and he might make his position as to workers compensation worse; he says it would be a ridiculous thing to do. I am not persuaded by this, for two reasons. The first is that his de facto wife was very concerned about possible involvement by the police and she seems to have regarded Mr Garland's resignation as a small price to pay for keeping the police away. In saying that I do not mean to reflect upon Mr Garland's honesty in any way: it may be that Ms Fisher had an exaggerated fear of what may attend police interest in a person, equally it may not. The second reason is that it is not so easy to make generalisations about what other people might perceive to be in their own economic interests. Certainly, experience in worker's compensation-type litigation shows that there are many cases where people indeed think, for one reason or another, that it is in their interests to resign from, and also then to make a workers compensation claim concerning, their employment. I am not persuaded by what Mr Garland says in this regard. There is from time to time, I have to say, an element of opportunism in the way he approaches the case. My conclusion is that Mr Garland's employment was terminated not at the initiative of the employer, but at his own initiative. That initiative was undertaken under pressure and advice from union representatives and his de facto wife. It was not his preferred course but, upset and troubled, he acceded to the pressure upon him and in the end he did, in my view, resign on 10 March. Subsequently he has come to regret it and he has persuaded himself that he did not resign, but there is no satisfactory explanation of the web of circumstances and for Ms Fisher's evidence, except that he did indeed resign. Mr Garland was heard before the Transport Appeal Board and was also heard before the judicial registrar, who apparently came to the same conclusion as I have. It will nevertheless be obvious that I have reconsidered the matter for myself afresh. The application for review will be dismissed. The original application by Mr Garland for relief in respect of allegedly unlawful termination of employment will be dismissed for the reason that he resigned his employment on 10 March 1994.