The Australian Rail, Tram and Bus Industry Union, New South Wales (on behalf of Polly Marie Burns) and Connex [2005] NSWIRComm 1045

Industrial Relations Commission of New South Wales

CITATION: The Australian Rail, Tram and Bus Industry Union, New South Wales (on behalf of Polly Marie Burns) and Connex [2005] NSWIRComm 1045

APPLICANT Barrister PARTIES: Ross Hanrahan RESPONDENT

FILE NUMBER(S): 5149 of 2004

CORAM: Patterson C

CATCHWORDS: Unfair dismissal - "Tram" driver on Sydney light rail system - accident due to claim of "microsleep" - serious damage - alcohol test proved negative - applicant abandoned work site before testing for other substances could be arranged - uncontactable for two days - dismissed - Held - Dismissal not harsh, unreasonable or unjust - application dismissed

Industrial Relations Act 1996 LEGISLATION CITED: Rail Safety Work (Rail Safety Act)

HEARING DATES: 12/09/2004

DATE OF JUDGMENT: 03/18/2005

APPLICANT Mr R Hanrahan of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Mr M Baron Ms R Maguire

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PATTERSON, C

18 March 2005

Matter No IRC 5149 of 2004

The Australian Rail, Tram and Bus Industry Union, New South Wales (on behalf of Polly Marie Burns) and Connex

Application by The Australian Rail, Tram and Bus Industry Union, New South Wales on behalf of its member Polly Marie Burns re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2005] NSWIRComm 1045

1 This Application for relief was filed by The Australian Rail, Tram and Bus Industry Union, New South Wales Branch (the "Union") on behalf of its member, Ms Polly Marie Burns, who was dismissed from her role as "tram driver" on the Sydney light rail transport system. 2 Operated by Connex Sydney Pty Ltd the light rail loop extends from Central Railway through Haymarket before terminating at Lilyfield and returning to Central. A round trip is scheduled over a period of 48 minutes. 3 In the early hours of 5 August 2004 Ms Burns was operating a tram from the city area to Lilyfield and return. Whilst approaching this terminus stop, at approximately 7.20 am she fell asleep thereby causing the vehicle to continue past the stop platform and remaining in motion until brought to a sudden involuntary halt by striking the safety stop buffers situated "50 metres" further along the line. 4 The tram is fitted with a black-box recorder which records speed, braking, acceleration "and so forth". Management's subsequent examination revealed that the vehicle had struck the "stops" at approximately 12 kilometres per hour which is 7 kph in excess of the posted speed limit for this area. 5 Whilst Ms Burns suffered no physical injury from the event, one of two other persons on board had experienced considerable bruising to his knees apparently due to a fall. (The tram was later put out of action whilst the resultant damage was being assessed. Cost of repairs was estimated as being between $100,000 and $150,000.) 6 Following the accident Ms Burns informed the "Controller," Mr Walker Wong, who directed her to return the vehicle to depot. When she arrived Ms Burns states that she was "shaking" in shock and Mr Mick Galle, contract maintenance manager, was waiting for her. "He stood with his arms folded and said to me 'that is fucking negligence … I hope you get the sack." 7 She then reported to the office of Mr Mick Baron, Operations Manager and, as he was not present at the time, she spoke to his assistant, Ms Ros McGuire. Having attributed the cause of the accident as being due to a "micro-sleep" Ms Burns was asked to "go and fill out a report". 8 Moving, then, to the Control Room she was provided with an "incident form" and, whilst "filling it out," Mr Wong administered "an alcohol (breath analysis) test" at about 7.50 am. The test proved negative. 9 Returning to Ms McGuire's office, who observed that the incident was "quite serious," Ms Burns asked "what happens next" whereupon she admits to being advised to "keep your phone on … Mick Baron will ring you." 10 Ms Burns states that she was not specifically asked to remain in the control room area pending Mr Baron's arrival and, by about "8.25 am," she was feeling increasingly "upset and disturbed" and left the area a few minutes later. 11 Ms McGuire states, in contrast, that Ms Burns was asked to remain in the depot for Mr Baron's arrival or until advised otherwise by herself or Mr Wong. It was management's intention to arrange, via an external agency, a urinalysis test to establish whether or not any foreign substances may have been present in her body system. As arrangements were being put in place for the test management discovered that Ms Burns had departed contrary, they state, to her standing obligations – well known to her – and pursuant to her contract of employment. She was unable to be contacted for two days. 12 Employed under the Sydney Light Rail (State) Consolidated Award 1997 (the "Award") Ms Burns was said to have been made aware of her obligations pursuant to clause 32 "Occupational Health and Safety" upon being first employed in December 2001, 3½ years earlier. 13 I reproduce below an extract of those provisions which deal with alcohol and other substances which may "impair an employee's capacity" to operate the equipment safely: "32. Occupational Health and Safety (i) The employer and employees bound by this award shall co-operate positively to minimize occupational health and safety risks in the workplace. The provisions of Occupational Health and Safety Act 1983 shall be used as part of the continued development of improved occupational health and safety policies and practices within the workplace. Employees Safety, Health and Welfare - (ii) Medical Examinations - (a) Pre-employment medical examinations shall be conducted as part of the selection process to ensure that prospective employees are fit in the context of the medical requirements of positions. In accordance with safety legislation and regulations, employees shall also submit to ongoing medical assessments, as directed, at regular intervals during employment. (b) Alcohol and Other Drugs - (1) As part of the efforts to achieve the highest standards of safety and health, the Company has a zero blood alcohol level and drug-free policy. (2) This means that all employees involved in the safe operation of the Sydney Light Rail must have a zero blood alcohol content, and be free from the influence of other drugs whilst at work. For the purposes of this policy a zero blood alcohol level is regarded as 0.02 gm of alcohol per 100 ml of blood, and other drugs are defined as substances which may impair an employee's capacity for safe operation whilst subject to duty or on the Company premises or using Company equipment. (3) All employees shall be subject to intermittent testing. Employees will also be tested where it is suspected that they are functioning or attempting to start work under the influence of alcohol or other drugs. Similarly, employees will be tested following any incident or accident where the involvement of alcohol or other drugs is suspected or where injury to person(s) or damage to property has occurred . (4) Employees who breach the Company's standards or who refuse to agree to testing shall be subject to counselling and/or disciplinary action . The consumption of illegal and/or agreed specified drugs and alcohol during the course of a shift is prohibited. Any breach of this policy may result in dismissal . (c) …." 14 Further, an employee's conditions of employment include continuing compliance as complemented by an extensive internal strata of policies and procedures dealing with "narcotic, illegal drugs or other prohibited substances, misuse of legal drugs and inhalants, alcohol or intoxicating beverages." 15 Specific reference is made to mandatory reporting concerning the use of legal/prescribed medications which may have implications for safety, a blanket prohibition against employees reporting for work whilst impaired by any restricted substance … and: ". Co-operation with Authorised Representatives of The Company: In order to achieve the 'Purpose' of the policy as outlined above The Company reserves the right to request employee participation in ' Fit for Duty' tests, urinalysis and breath analysis tests. However an employee who declines to participate in a 'Fit for Duty' test, urinalysis or breath test will be subject to disciplinary action as if they had failed that test.'" 16 The policy provides a list of circumstances which may require testing – pre-employment, random sampling, for reasonable cause and: ". Work Related Injury or Accidents Employees who are involved in a work related accident or injury can be requested to undergo breath analysis and or urinalysis . An employee found to be in breach of the Alcohol and Other Drugs Policy will be subject to disciplinary action up to and including termination of employment." 17 Testing procedure and protocols stipulate the conditions under which testing shall be performed, medical disclosure, sample analysis and review of test results, expenses. 18 The policy also makes important reference to the: " Railway Safety Work (Rail Safety Act) Railway Safety Work is defined by the Rail Safety Act as 'Any of the following classes of work carried out by a railway employee', and includes but is not limited to a worker undertaking rail safety work as defined in a jurisdiction's rail safety legislation and therefore includes without limitation an employee, contractor, subcontractor or volunteer performing work on a railway or tramway system:-