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:- to 'work as a driver, second person, trainee driver, guard, conductor, supervisor, observer, authorized officer or engine-man' to 'work at a railway station or other place as a station-master, operator of train signals or shunter of trains or work which otherwise relates to the movement of trains' …" 19 Ms Burns denies that she was "requested or directed by Ros McGuire to stay for any other matter" and claims to have been generally ignorant of her obligations to remain on-site for further testing according to management's discretion. "I was not informed or aware at that time that I was required to stay for a drug urine test to be conducted by external contractors." 20 She states that, after leaving the depot without release or further contact with Ms McGuire or Mr Wong, she went to the home of her son and his father (her former partner) "to try to settle down … I was by this time mentally and emotionally very upset" but she sought no independent medical attention. 21 It seems that she made this visit after going home at first instance. She had left her mobile phone turned on until about 10 am. Until then, she states no contact had been made by the respondent. But, when she left home for her second destination Ms Burns "forgot" to take the phone thereby rendering her uncontactable by management. 22 Reference to entries made in the "Operations Log Book" for that day discloses that management attempted to contact Ms Burns nine times between 12 noon and 8.05 pm. On the following day, Friday 6 August, a further nine attempts were made between 9.14 am and 9.10 pm. Finally, at 12.45 pm on Saturday 7 August, contact was made whereupon Ms Burns was directed to attend a meeting with Mr Baron on the following Monday, 9 August. 23 Invited to attend with a "support person" of her own choosing she was accompanied by another employee, Ms Karen Paparon, in meeting with Mr Baron and Ms McGuire. Further to that interview process Ms Burns agreed to undergo a psychological assessment and was placed on "suspension" with pay pending assessment of the Psychologist's report. When she offered to undergo a "drug test" Mr Baron declined by stating that "it was too late." 24 Consistent with "standard" arrangements following an accident Ms Burns attended a "critical stress debrief with the company's nominated psychologist (Pandelis Tsomis) on 13 August "and was relieved to find out for the first time that there was nothing seriously wrong with me." The Report was not tendered in evidence. 25 Ms Burns describes his recommendation to have been directed at a temporary change to non-driving duties, such as in the role of tram conductor. In her understanding such an arrangement, which would have been acceptable to her, had previously been arranged for another driver, Joe Machino, who was said to have been provided alternative duties as a conductor "for the same error." 26 Ms McGuire, whilst confirming such an earlier arrangement for Mr Machino, said the Company had viewed this to be unjustified in the case of Ms Burns due to her committing a "further breach by abandoning a formal Safety Rail investigation in leaving the site without release and causing herself to become uncontactable." 27 The final interview of Polly Burns occurred on 20th August during which, according to the meeting notes, Mr Baron told her words to the effect: "Dodi (CEO) and I have looked at all the evidence and the seriousness of the incident. You breached safe operating practices and fell asleep while operating (your vehicle). You didn't inform me regarding your health and that you have been suffering migraines. I need to know these things which it says in your employment agreement that you signed. The second problem is that you left the depot while the incident was being investigated and you didn't tell anyone and could not be contacted for several days. You were asked to stay by Ros (McGuire) and Walker (Wong) yet you left without a word." 28 The meeting concluded upon Ms Burns' dismissal with payment of one week and two days' wages in lieu of notice. CONSIDERATION 29 In consideration of this matter I note a variety of additional subject matter raised by the applicant in these proceedings (not mentioned in detail above, or mentioned at all, since they generally are incapable of leading me to any satisfactory conclusion) which, she states, may have contributed to the accident. 30 For instance, Ms Burns' reference to the then current 7-day rotating shift rosters, and pattern of additional shifts by voluntary swap or providing relief from absences, was claimed as to often cause her to suffer fatigue whilst on the job. However, the actual periods worked, in part, are disputed as confirmed by management's reference to the roster and attendance records. 31 Ms Burns' reference to the lack of air flow within the tram cabin, and corroborated by another driver, particularly when exacerbated by operation of the heater, was such as to cause drivers to become sleepy. 32 When combined: "I often discussed with co-workers such as Kristen Tripp the occurrence of 'micro-sleeps' affecting people on rotating shift work. She left the job because she could not handle the night shift. The fatigue I experienced affected my mental processes and judgment. I got headaches, felt drained, but also felt that I had to keep going. I was never able to get a good regular night's sleep." 33 On the day of the accident, 5 August, she claims to have commenced duty at 6.15 am. Reference to management's records illustrate that she, in fact, commenced at 5.45 am and "while the applicant did enquire about permanent night shifts, she stated that it would suit her lifestyle … she never stated the request to be due to ill health, nor provided any evidence" in support. She never mentioned on-going headaches or fatigue. 34 Ms Burns' claim that her shift on 5 August was her "seventh working day in a row" was, according to management's records, also incorrect. It seems that she had only "worked a total of one consecutive day prior to the incident, and three consecutive days prior to her failure to report for duty on 3 August … out of these three days, two were driving shifts, the third being a conducting shift." 35 Ms Burns' further claim that, given the speed at which the tram is travelling after "signal 27" (Lilyfield) 50 metres before the end of the line, "there is not enough distance to stop safely even when the driver is awake … the ATP ("automatic train protection") devices/systems are not able to stop the tram as they are meant to, at Lilyfield Station." 36 But this assertion is roundly disputed by management who state – quite understandably – "that the tram's speed is controlled by the driver and is not a function of the ATP … there is more than sufficient distance to safely bring a tram to a halt at the Station." 37 Whatever the posted speed limits imposed upon light rail, heavy rail, roads or waterways, it is the operator or driver of the vehicle/craft who is ultimately and finally accountable for its safe operation. 38 And, in the absence of any evidence forthcoming as to any aspects of Ms Burns' health which may have contributed towards her "mircosleep", her activities and/or lack of reasonable sleep on the night before, it is difficult to understand how this might have occurred less than two hours after commencing her shift. 39 I am satisfied that she was sufficiently aware of the requirement to make herself available for a complete investigation of the incident to have been carried out in accordance with the terms of the Statute and internal requirements. That she left the site before receiving a urinalysis test could, I accept, have been the product of some genuine misunderstanding borne of a combined state of anxiety and distress. 40 That, in the circumstances, she sought refuge at the home of her son and former partner is also understandable. 41 However, whilst her oversight in respect to leaving her mobile phone at home is acceptable - for a short time - I do not understand how she allowed herself to remain uncontactable for two days. Surely, whatever her level of stress prevailing at the time - and for which she sought no medical attention - this oversight should have been realised some reasonable time after obtaining comfort within the bosom of her estranged family. 42 Ms Burns could have initiated contact herself via another phone or returned home to collect her own, turn it on, and await contact from management. CONCLUSION 43 Having considered all of the evidence, and demeanour of the witnesses, I am satisfied that Ms Burns' dismissal was not harsh, unreasonable or unjust and I therefore decline to intervene. 44 However, in dismissing the application I make two observations as to management's attention to the matter: (i) Why, once advised of the accident did the respondent (through Mr Wong) direct Ms Burns to return the vehicle to depot when such direction could have compounded a risk to public safety had she been under the influence of alcohol or other substances. In my opinion a relief driver should have been despatched for this purpose. (ii) Why the respondent (through Mr Baron) did not arrange a urinalysis test following her attendance at the interview some four days later. In considering the time lag between accident and interview to have been such as "its too late" the parties are apparently not aware that the use of certain illegal substances - such as cannabinoids - can be detected after three months' use. 45 This matter is concluded. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.