RICHARD JOSEPH ZEBEHAZY -v- AUSTRALIAN NATIONAL RAILWAYS COMMISSION [1995] IRCA 349

C A T C H W O R D S INDUSTRIAL LAW - termination of employment - termination the subject of Appeal to Disciplinary Appeal Board - relevance of discipline process - relevance of availability of review under Administrative Decisions (Judicial Review) Act - whether valid reason for termination - whether termination harsh unjust or unreasonable INDUSTRIAL RELATIONS ACT, 1988, ss 170DC 170DE 170 EA 170EB 170DF PUBLIC SERVICE ACT, 1922 AUSTRALIAN NATIONAL RAILWAYS ACT, 1917 AUSTRALIAN NATIONAL RAILWAYS COMMISSION ACT, 1983 ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT, 1977 ss 5 10 11 GOVERNMENT RAILWAYS ACT, 1912 (N.S.W.) TRANSPORT ADMINISTRATION ACT, 1988 (N.S.W.) TRANSPORT APPEAL BOARDS ACT, 1980 (N.S.W.) Maggs v. Comptroller General of Customs (Matter No. N1510 of 1994) RICHARD JOSEPH ZEBEHAZY -v- AUSTRALIAN NATIONAL RAILWAYS COMMISSION NO. AI 1036 OF 1995. Before : Linkenbagh JR Place: Canberra Dates: 16 June 1995 and 24 July 1995

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT AI 1036 of 1995 RICHARD JOSEPH ZEBEHAZY Applicant AUSTRALIAN NATIONAL RAILWAYS COMMISSION Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR LINKENBAGH DATE: 24 July 1995 PLACE: CANBERRA THE COURT ORDERS THAT: 1. The application is dismissed. Settlement and entry of Orders is dealt with in Order 36 of the Industrial Court Rules.

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT AI 1036 of 1995 RICHARD JOSEPH ZEBEHAZY Applicant AUSTRALIAN NATIONAL RAILWAYS COMMISSION Respondent BEFORE: JUDICIAL REGISTRAR LINKENBAGH DATE: 24 July 1995 PLACE: CANBERRA REASONS FOR JUDGMENT This is an application under Section 170 EA of the Industrial Relations Act, 1988, in which the Applicant seeks a remedy in respect of the termination of his employment as a Reservations Clerk at the Canberra Railway Station. The Application was heard on 16 June 1995 and 24 July 1995, and on 24 July 1995 an order was made that the application be dismissed. I now publish my reasons for making that order. THE FACTS I find the facts as follows: . the Applicant commenced duty with the Australian Railways Commission at Canberra Station on 20 August 1979, as a Grade 2 Clerk. . initially the Applicant was employed under the provisions of the Australian National Railways Act, 1917. . that Act was repealed in 1983 when the Australian National Railways Commission Act, 1983, was passed. . Railway Service Rules & By-laws, including a Boards of Appeal by-law, were made pursuant to the provisions of the relevant Acts. . in about 1985, the State Rail Authority of New South Wales took over the management of the Canberra Rail network. . on 7 November 1985, an Agreement ("the Agreement") pertaining to the takeover of the Canberra Rail Network was certified in the Australian Conciliation and Arbitration Commission, to settle an industrial dispute. The Agreement essentially preserves Australian National Railways Commission benefits for existing employees but enables their services to be utilised by the State Rail Authority of New South Wales. . under the Terms of the Agreement the Applicant became a category 2 employee of the Australian National Railways Commission, working on secondment for the State Rail Authority of New South Wales. . the Applicant thereafter worked on a day to day basis as if he were a State Rail Authority employee. He could have elected to transfer to the State Rail Authority fully, but did not do so. . the Applicant's duties were to answer telephone enquiries, with the assistance of information available on a computer terminal, which he operated. . the Agreement reserves to the Australian National Railways Commission the power to take formal disciplinary action, on the advice and recommendation of the State Rail Authority management. . the Agreement provides that positions at Canberra occupied by Australian National Railways Commission staff, will not be subjected to staff review unless actually vacant. The positions were therefore preserved to the incumbent employee. . the State Rail Authority is constituted under the Transport Administration Act, 1988. The Regulations under that Act and the provisions of the Government Railways Act, 1912, and the Transport Appeal Boards Act, 1980, provide the framework for conditions of service, disciplinary provisions, and appeal mechanisms, similar to those which apply to employees under the Australian National Railways Commission Act, and the Rules and By-laws made pursuant to that Act. . the State Rail Authority has published a Human Resources Manual, which includes a Code of Conduct for employees. . on 16 August 1993, the State Rail Authority notified the Australian National Railways Commission in writing of "a long history of complaints" relating to the applicant, totalling 18, and requested assistance to implement disciplinary action. . on 6 October 1993, a warning was issued, in terms that if the Applicant came under notice for misconduct again, his services "will be terminated". That warning arose from formal disciplinary action, and a finding of misconduct, following admissions by the Applicant that he had been abrupt and rude to a customer, and had failed to ensure that a booking was available for that customer. . on 17 June 1994, the Applicant failed to make a booking when requested to do so by a customer. This incident was the subject of a formal record of interview on 15 July 1994, when he was reminded of the terms of the warning of 6 October 1993, and which concluded in a written acknowledgment by the Applicant that he "fully understood the consequences of what will happen in the future, if another letter is received about me". His conduct was to be reviewed on 15 August 1994. . that review took place on 18 August 1994, when three instances of the Applicant's being late for duty, were discussed. A further review date was fixed for 8 September 1994. . on 21 October 1994, the Applicant was given notice that his employment would be terminated from 28 October 1994, after a formal disciplinary procedure relating to the Applicant's conduct on 18 August 1994 (the same day as the review of his conduct), when he failed to follow correct procedures relating to a booking for a passenger. The Applicant admitted his conduct. He also admitted that he contacted the passenger personally after the passenger had lodged his complaint with the State Rail Authority. . the Applicant appealed to a Disciplinary Appeal Board, as to the severity of the decision. The Board heard the appeal on 29 November 1994, and confirmed the decision to dismiss. The Board give written reasons for its decision. . the Applicant then filed this Application. An order extending the time for filing was made on 27 April 1995. Evidence was given as to the Applicant's work history and performance by Ms Walsh and Mr Albrighton for the Respondent. The Applicant and Mr Bond, the Canberra Station Master, gave oral evidence. The Respondent's witnesses relate a history of poor performance and complaints about the Applicant by the public, and other staff. Ms Walsh worked with the Applicant for five years and supervised him for three and a half years, and was well placed to observe his performance and conduct. It was her duty to deal with the complaints, which mostly related to the Applicant's manner. Her opinion was that he could his job well and apply himself when he needed to, and that there was no pattern to his exhibitions of unsatisfactory behaviour. Ms Walsh has spent a great deal of time consulting with the Applicant. She offered him counselling and the opportunity to attend courses intended to improve his skills, reminded him about the Employee Assistance Scheme and internal training, all of which he declined. She has formed the view that he was not willing to better himself. Ms Walsh varied his duties as much as she was able to do, with some signs of improvement, and made adjustments to his duties to try and overcome his punctuality problems. Mr Albrighton's opinion was that the Applicant was treated generously. He confirmed Ms Walsh's view that the Applicant was not interested in attending any courses unless they were compulsory. The Applicant twice attempted a compulsory course in the use of the "Trains" computer information, and failed to pass the course at both attempts. Mr Bond was called by the Applicant. He confirmed that there were many telephone enquiries in the course of a working day, and that the Applicant had a "terrible telephone manner". Mr Bond's opinion was that the Applicant was not able to cope with advances in technology. The Applicant confirmed that because of his limitations in understanding the computer information, he was directed not to tell customers any fares on the phone. He told the Court that he did not receive adequate training and that he was not permitted sufficient breaks away from his computer screen. That evidence is at variance with the evidence of Ms Walsh. He also gave evidence that at times he suffered stress which was partly work related and partly generated by his personal circumstances. That evidence must be taken with the Respondent's evidence that the Applicant was offered counselling and the services of the Employee Assistance Scheme on many occasions. THE RELEVANCE OF THE DISCIPLINARY APPEAL PROCESS The Full Court of this Court considered the applicability of the provisions of the Industrial Relations Act, 1988, relating to unlawful termination, to employees under the Public Service Act, 1922, in Maggs v. Comptroller General of Customs (Matter No. NI 510 of 1994). The Court held that there was no inconsistency between the application of the two Acts in relation to the termination of employment as a result of disciplinary action against the employee, because the Public Service Act applied up to the point of coming into effect of the direction to dismiss, and the Industrial Relations Act applied thereafter. The Court also said that the purpose of the Industrial Relations Act was to impose a set of minimum standards relating to the termination of employment, and recognised that some employers have in place a set of minimum standards. In the case of Commonwealth Public Servants, those standards are contained in the Public Service Act, 1922, and in the case before me, in the Australian Railways Commission Act, 1983. The Full Court said that the provisions of the Industrial Relations Act "would not become important except on those occasions, hopefully rare, when the adopted standards were not observed". The standards and procedures contained in the Australian Railways Commission Act are at least as favourable to the employee as the minimum standards required by the Industrial Relations Act, and in the absence of any challenge to the mode of application of those standards and procedures in the particular case, there cannot be said to be any breach of the requirement for procedural fairness. This termination has been the subject of an appeal to a Disciplinary Appeal Board, constituted pursuant to the provisions of the Australian Railways Commission Act, 1983. The Board confirmed the decision to dismiss the Applicant. The parties took no issue before me with the constitution of the Board, or its discharge of its function. This Court's powers do not include any express power to review the decision of the Board. The Board is an independent body, constituted under an Act of the Federal Parliament, and it has prima facie discharged its Statutory duty. At the very least, its decision should be considered by this Court as part of the chain of events which resulted in the termination of the employment of the Applicant. At the most, it might be said that in the absence of any challenge to the proper discharge of the Board's functions, its decision should prevail. However, the Full Court in Maggs' case determined that there was no inconsistency between the Public Service Act and the Industrial Relations Act, and this Court should therefore enquire as to whether any provisions of the Industrial Relations Act have been breached, notwithstanding the decision of the Board. Such an enquiry should be made, in my view, without impugning the integrity of the decision of the Board. It is not necessary for me to consider what significance the Court should give to such a decision in cases where one of the parties challenges the process or substance of the making of that decision. THE APPLICATION OF THE INDUSTRIAL RELATIONS ACT,1988 The tests to be satisfied under Sections 170 DC, 170 DE and 170 DF require consideration of the facts. The process which was followed was that set out in the disciplinary provisions, and was done in a timely fashion. There was no breach of Section 170 DC. Section 170 DF does not apply. Section 170 DE requires a valid reason, based, in this case, on capacity or conduct, and that the termination must not otherwise be harsh, unjust or unreasonable, or, in other words, substantive fairness. I have no difficulty in finding that, on the facts, there were valid reasons, based both on the Applicant's capacity and conduct, for the termination of his employment. His ability to perform his allotted tasks was limited, as was his ability to learn new procedures, and his conduct continued to be unacceptable, despite the efforts of his supervisors to improve it, notwithstanding that there were some signs of improvement between 6 October 1993 and August of 1994. The question of whether the termination was harsh, unjust or unreasonable, is more difficult. The personal consequences to the Applicant have been severe. He has lost his source of income, and his superannuation benefits, although he has now gained other employment. This question however involves consideration of the interests of both parties. The Applicant was locked into his position by the terms of the Agreement, and because there were no other positions for Australian National Railways personnel in Canberra. Mr Martin submitted that he was "trapped", and if that were so, then his poor performance and attitude might be excused to some extent. However I do not accept that proposition. It is equally likely that the Applicant became complacent because of his knowledge of the, apparently, absolute security of his job. Although the Applicant was locked into his position whilst he was an Australian National Railways employee, and remained in Canberra, he had the option to apply to transfer to the State Rail Authority, or to other Australian National Railways vacancies elsewhere, should he have wished to do so. He elected to remain in a position to which he was not suited, and refused all offers of training and assistance. Further, he was fully aware of his obligations in dealing with the customers whose calls he answered, and must accept the consequences of his actions and his failure to discharge his duties properly. I do not agree with Mr Martin's submission that the Applicant worked in appalling conditions, or the suggestion that the Respondent was motivated to make the Applicant's position redundant. Neither of those submissions is supportable on the evidence before me. It must also be remembered that an employment relationship is a two-way relationship, involving mutual rights and duties. Just as the Applicant was locked into his position, the Respondent was handicapped in structuring its workplace and workforce by the inability to make changes to do with the position occupied by the Applicant, and the Applicant's occupancy of that position whilst he was not fully competent to perform all the duties of the position. The Respondent has taken all the steps it could reasonably have taken, given the restrictions imposed upon it by the Agreement. I find that whilst the termination has had severe consequences for the Applicant, in all the circumstances it is not harsh, unjust or unreasonable. THE RELEVANCE OF THE AVAILABILITY OF REVIEW UNDER THE PROVISIONS OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT, 1977 Prior to the commencement of Division 3 of Part VI A of the Industrial Relations Act, 1988, the only further avenue for action available to an employee who had been the subject of Public Service disciplinary action, was an application to the Federal Court for review on the grounds set out in Section 5 of the Administrative Decisions (Judicial Review) Act, 1977. That avenue was available to the Applicant in these proceedings. Section 10 of the Administrative Decisions (Judicial Review) Act provides that a right under that Act is in addition to other rights. The Full Court of this Court said in the Maggs' case to which I have referred, that such an application is not an adequate alternative remedy within the meaning of Section 170 EB of the Industrial Relations Act, because "such a review is limited to the grounds stipulated in the Act. The Act does not enable the Court to act upon its own view of the facts, as this Court must do in an unlawful termination claim." An application under the Administrative Decisions (Judicial Review) Act therefore remains an available course for the employee to follow, and the applicant could apply simultaneously under that Act to the Federal Court for a review of the Board's decision, and to this Court, under Section 170 EA, claiming a remedy for unlawful termination. As Professor G J McGarry observes at p. 166 of his text "Aspects of Public Section Employment Law", each tribunal will be obliged to follow its own Statutory charter, as interpreted in the case law. The inherent absurdity of the possibility of conflicting orders being made by the two Courts in respect of the same termination, need not be addressed further here. This Applicant did not apply under Section 5 and any application at this stage would be out of time under Section 11 of the Administrative Decisions (Judicial Review) Act. In conclusion, and applying the view of the Full Court in the Maggs' case, that this Court must act upon its own view of the facts, I find that there has not been, on the evidence before me, any breach of the provisions of the Industrial Relations Act by the Respondent, and therefore the application is dismissed. I certify that this and the preceding 11 pages are a true copy of my reasons for judgment. Date: Representatives of the Applicant:Mr R Wadham and Mr D Martin Public Transport Union Representative of the Respondent: Mr B Larkins State Rail Authority Dates of hearing: 16 June 1995 and 24 July 1995 Date of Order: 24 July 1995