Transport Appeal Boards New South Wales Medium Neutral Citation: Smith v Rail Corporation of New South Wales [2011] NSWTAB 13 Decision date: 03 August 2011 Jurisdiction: Civil Before: Connor C (Board) Decision: Appeal for reinstatement in employment rejected Catchwords: DISMISSAL - rail services - train driver - breach of established code of conduct - past unsatisfactory employment record - alleged protected industrial action - alleged breach of provisions of the collective agreement Legislation Cited: Federal Fair Work Act 2009 Cases Cited: Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Federated Storemen and Packers' Union Case (1988) 22 IR 198 John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 Pacific Power v. Crump (1993) 48 IR 296 Smith v RailCorp [2011] NSWTAB 3 Category: Principal judgment Parties: Michael Glen Smith (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Leigh Heaney,Rail, Tram and Bus Union (Appellant) Annette Baxter, Rail Corporation of New South Wales Respondent) File Number(s): TAB 959 of 2011 DECISION INTRODUCTION 1On Wednesday, 27 April, 2011 Mr Michael Smith lodged a notice of appeal to the Transport Appeal Board concerning the termination of his services as a train driver with the Rail Corporation of New South Wales on Monday, 4 April, 2011. It is alleged by RailCorp that Mr Smith breached the RailCorp code of conduct and established procedures for train drivers. Mr Smith has pleaded not guilty to those allegations in his notice of appeal but now understands that his actions were wrong. 2Relevantly, the RailCorp code of conduct provides: "We are responsible for behaving positively. RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in this code of conduct. You are also to adhere to the following general principles: * Put safety first in everything we do. *Always act in the best interest of RailCorp. * Maintain and promote high levels of acceptable behaviour. * Help and build and maintain a 'just culture' where employees are treated fairly and justly. As an employee, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, awards, policies, procedures, rules and job requirements. In your work at RailCorp you must: * carry out your duties carefully, safely, honestly, courteously and fairly; * use RailCorp resources properly, efficiently and economically; * treat members of the public and colleagues fairly, consistently and with respect; * be honest and accurate in timekeeping and in meeting attendance requirements; * create and maintain full and accurate records of work performed, including reasons for your decision making; * carry out all lawful directions from managers/supervisors to the best of your ability." 3The RailCorp train working procedures [TWP102] states as follows: "Unless authorised, employees must not interfere with any equipment on RailCorp trains" 4And: "Unauthorised persons must not enter or remain in a crew compartment, at any time." 5The matter came before Macdonald C for conciliation on Thursday, 14 April, 2011. Mr Smith is a member of the Rail, Tram and Bus Union which represented him in those conciliation proceedings. The conciliation was unsuccessful and with standard directions to the parties for the filing of the necessary evidentiary material, the file was scheduled for arbitration and ultimately allocated to me for a hearing on Thursday, 21 July, 2011 and Friday, 22 July, 2011. 6Mr Heaney represented Mr Smith and the RTBU in those arbitrated proceedings and Ms Baxter represented RailCorp. Mr Heaney called Mr Smith to give evidence in the hearing under oath. THE EMPLOYMENT HISTORY 7Mr Smith commenced employment in the middle of 1992, at first as a junior station assistant and subsequently as a guard in the middle of 1994. He became a trainee train driver and later was qualified as a train driver late in 1999. Ms Baxter asserts that Mr Smith has "...an extensive disciplinary history...", essentially related to his consistent failure to follow directions given to him and appropriate procedures known by him and concerning his attitude. 8For instance, in the middle of 2006 Mr Smith removed a taxi booking sheet from the front desk of the train crew allocation centre, attempted to copy it and failed to follow directions for its return or attend the centre following the incident. Whilst there was no disciplinary penalty imposed on him over that incident, he was directed to participate in mediation. He has also been counselled and received a reprimand for making inappropriate comments to a female drug testing officer. 9In late 2009 he received a final warning for unacceptable behaviour arising out of his failure to report to the train crew allocation centre to work as directed. Mr Smith claimed that he was unable to be contacted during his rostered hours because he was "...having lunch on his birthday..." and his "...phone battery had gone flat...". He also initially claimed payment for an eight hour shift when the rostered schedule was for seven hours only. 10Mr Smith was rostered on duty on Monday, 14 December, 2009. He arrived late for that roster. He claimed in his evidence that the bus he had hailed had not picked him up and when he telephoned and informed RailCorp of his difficulty and asked if he could take a taxi he was told to take the next bus that was available, which he did. Nevertheless, he subsequently instructing the roster clerk to record him as commencing his shift at the correct time, which the roster clerk declined to do. Mr Smith relinquished his shift shortly thereafter, claiming to the roster clerk that he intended to "...go off injured...". Mr Smith was removed from the roster on Thursday, 21 January, 2010 pending disciplinary investigation and ultimately received a two week suspension without pay. 11That suspension was the subject of an appeal by Mr Smith to the TAB which ultimately came before Bishop C for arbitration and who in her decision on Tuesday, 15 February, 2011 dismissed the appeal [ Smith v RailCorp [2011] NSWTAB 3]. I have read the decision of Bishop C and concur with her findings and the conclusion she reached. Mr Smith commenced his two week suspension from Friday, 18 February, 2011. 12Following the suspension Mr Smith was informed by letter dated Monday, 1 February, 2010 that he was to remain at home on base pay until the outcome of the disciplinary investigation over the incident on Monday, 14 December, 2009. Mr Smith subsequently raised the matter as a dispute with RailCorp's employee relations division on Friday, 16 April, 2010. Essentially, Mr Smith argued that since he had been suspended on base pay since Thursday, 21 January, 2010, RailCorp was in breach of the collective agreement under which he was engaged. RailCorp disputes that claim of a breach of the collective agreement. It was nevertheless recommended that Mr Smith's return to duty. However, having regard to concerns over the lack of supervision available to Mr Smith in his substantive role as a train driver, he was returned to alternative administrative support duties (at Burwood) effective from Sunday, 26 June, 2010. 13Mr Smith was provided with a letter dated Wednesday, 30 June, 2010 from RailCorp confirming that arrangement and indicating that RailCorp was prepared to support a management plan of non-work related rehabilitation. Mr Smith signed that letter to indicate that he understood it and he remained at those alternative duties up to a period of leave from Monday, 12 July, 2010 to Friday, 20 August, 2010. He was to return to work after that date at Burwood in his alternate duties (according to RailCorp) or as a train driver (according to Mr Smith). However, a further incident - which ultimately led to his dismissal - intruded. THE CURRENT INCIDENT 14On Friday, 20 August, 2010 Mr Smith attended Central Railway Station (Platform 12) and entered the crew compartment on the train service [N237], refusing to vacate the crew compartment and allow Mr Peter Edwards, the rostered driver, to take charge of the service when Mr Edwards requested him to do so. Mr Smith informed Mr Edwards that he was"...taking industrial action..." against RailCorp. Mr Stephen Pearce, the depot manager of Central Inter-City Service, was required to attend the scene and he directed Mr Smith to leave the compartment. 15Mr Smith's action delayed the departure of the train from Central Railway Station by 16 minutes or 17 minutes and threw out the schedule for a subsequent train. His action was reported by Mr Pearce to Mr Craig Dance, the RailCorp regional crewing manager, who referred it for investigation. Mr Daren Jay, a senior investigator undertook that disciplinary investigation. 16There appears to be no doubt in my mind that at that time Mr Smith was still obliged to present himself at Burwood for the alternative duties. He seems to have taken the view unilaterally that his period of time engaged on those alternative duties had gone on long enough and, as he described the situation in his evidence, he intended to "...make a point...", "...get justice..."and "...bring matters to a head...". 17In any event, the fact remains that on Friday, 20 August, 2010 Mr Smith was not rostered at work at all - either as a train driver or in the alternative duties. His return to work following his period of leave was not until Monday, 23 August, 2010. RailCorp personnel records reveal that Mr Smith was paid as a rostered day off on Friday, 20 August, 2010. According to Mr Smith, he had been informed by his timekeeper that he was to resume work on Friday, 20 August, 2010 but when he contacted his rostering officer, he was informed that he was not on the roster for Friday, 20 August, 2010. 18From Tuesday, 2 November, 2010 to Friday, 18 February, 2011 Mr Smith was returned to train driving duties pending conclusion of the investigation concerning his conduct on Friday, 20 August, 2010. He was suspended for two weeks without pay on Friday, 18 February, 2011 (following the decision of Bishop C which confirmed that suspension) and then resumed work on alternative duties until his dismissal. 19On Wednesday, 1 December, 2010 Mr Jay wrote to Mr Smith outlining the allegations made against him as a breach of the code of conduct and the RailCorp train procedures. Mr Smith's response was, among other things, that RailCorp was again acting in breach of the collective agreement for train drivers by reallocating him to other duties and that he was, in fact, on duty on Friday, 20 August, 2010 but taking part in industrial action which was protected industrial action within the meaning of the federal Fair Work Act 2009. Mr Smith claimed that he received advice to support his position (from an unidentified RTBU delegate and an unidentified officer of Fair Work Australia) concerning the protected industrial action but there is no evidence before me to support his claim in that respect. In my opinion, the proper course for him to have adopted was to raise his concerns with a more senior officer of the RTBU. 20Mr Smith was invited by letter dated Monday, 20 December, 2010 to attend a voluntary disciplinary interview scheduled for Monday, 10 January, 2011. He declined to attend the interview, replying to that effect in a letter of Wednesday, 5 January, 2011. The RailCorp formed the preliminary view that Mr Smith should be dismissed. Mr Smith was informed of that preliminary view by letter dated Friday, 18 February, 2011 from RailCorp. 21Mr Smith's response was in a letter dated Monday, 7 March, 2011, viz: "....On Friday, 20 August, 2010 my annual leave had finished and this date was my first day back. I had contacted my rostering officer a few days previous and asked what my first turn of duty was and I was informed I was stood down and not on the roster. I advised him I believed this was a breach of the 2008 union collective agreement at clause 37.5 where an employee's period of suspension exceeds 17 weeks they will resume their duty at that point. I was informed he could not help me in that matter. I had also issued a dispute notice to Mr Steve Pearce on Friday, 16 April, 2010 and RailCorp did not respond to my dispute. I then wrote to my local Member of Parliament, Ms Judy Hopwood, Monday, 24 May, 2010 who forwarded my letter to the Minister for Transport (who) replied on Monday, 26 July, 2010. I then called Fair Work Australia and was given some advice on protected industrial action. I believe I had tried everything I could have to be placed back on my roster to drive trains and the only option I had now was to take protected action. I then went to Platform 12 Central Station on Friday, 20 August, 2010 and entered the crew compartment of N237 and at the time I believed I could do this as I was taking protected industrial actions. For all of my life I have wanted to be a train driver and I believe my record of driving trains is good. To be stopped from driving trains for so long was devastating for me and I feel I entered into a depressive state during this time. From my school days I have been bullied and harassed and I have not been able to deal with issues affecting me and I find it difficult to communicate and fully understand directions from supervisors and managers that do not seem right to me. I have been diagnosed with a medical condition that RailCorp are aware of and I must provide a medical report to RailCorp each year. To be removed from driving trains because of what happened on Monday, 14 December, 2009 for so long and other drivers who have incidents are back driving in a matter of days or weeks..." 22RailCorp is satisfied that Mr Smith's medical condition - which he described in his evidence as Asperger syndrome - is under control and, subject to the yearly medical clearances he provides, his continued employment was consistent with its obligations with respect to the National Standards for Assessment of Rail Safety Workers. Nevertheless, the outcome of the investigations was that RailCorp terminated Mr Smith's services on Monday, 4 April, 2011. SUBMISSIONS 23Mr Heaney submitted that Mr Smith acted on his belief that he was entitled to act as he did on Friday, 20 August, 2010. He now recognises that his conduct was wrong. Mr Heaney highlighted that Mr Smith had been driving trains for the RailCorp for a lengthy period of time and that he loved that work. Indeed, it was Mr Smith's love of the job of driving a train that prompted him to take the action that he did. Also because of his medical condition he had become anxious to return to drive trains and believed that the lengthy investigation was unfairly denying him that right. He consequently acted in desperation. 24Ms Baxter argued in her submissions that, in the circumstances, the termination of Mr Smith's services was the appropriate penalty to impose for him in view of his actions on Friday, 20 August, 2010. He had, in her view, no entitlement to believe that he was actually on duty on Friday, 20 August, 2010 and that he was still to be engaged on those alternative duties when he was rostered to return to work on Monday, 23 August, 2010. She claimed that his actions were deliberate, considered and planned in advance and that in the process he had disrupted and delayed the train service from Central Railway Station. Ms Baxter does not believe that Mr Smith may use his medical condition to excuse his conduct, since the regular medical reports have confirmed his fitness to carry out work for RailCorp. CONCLUSION 25Mr Smith was obviously confused over his right to take protected industrial action. He now appears to accept that his claim that he was taking protected industrial action was incorrect. In the first place, his actions - taking up a position in the crew compartment of a train and refusing to move until he was directed to do so - is an odd form of industrial action and not something that falls under the type of industrial action ordinarily contemplated as protected . I understand that as at Friday, 20 August, 2010 protected industrial action in relation to ongoing negotiations for a new enterprise agreement between RailCorp and the RTBU (and Unions New South Wales) was put on hold. 26Moreover, Mr Smith's actions - on his own, apparently without the RTBU support or knowledge and without prior notification to Rail Corp - cannot properly be categorized as industrial action, protected or otherwise. As Macken J of the former State Industrial Commission indicated in the Federated Storemen and Packers' Union Case (1988) 22 IR 198 at p.199, industrial action is always group action. The concept underlying protected industrial action, is to provide some legitimization to a co-ordinated industrial response in negotiations, following a ballot of members of the trade union representing them. Mr Smith was acting alone and he was not entitled to act as he did on Friday, 20 August, 2010 and defend his actions by simply calling it industrial action. It was not. 27Nor, in my opinion, is Mr Smith correct in his assertion that RailCorp was in breach of the status quo provisions of clause 37 of the collective agreement. That provision requires that investigations on disciplinary matters be completed within 17 weeks at which time the employee concerned should be returned to normal duties "...unless there are exceptional circumstances...", ie complex issues being investigated or other litigation having a bearing on the outcome of the investigation etc. Mr Smith regards his transfer to alternative duties as still constituting part of his suspension from duties. It is not, in my opinion. 28And on Friday, 16 July, 2010 Mr Greg McDonald, the senior employee relations officer (projects), had already written to Mr Smith outlining the RailCorp's position in that respect. In particular, Mr McDonald wrote: "....I again wish to reinforce that the operation of the status quo provisions apply to work procedures and practices in place immediate prior to the change that brought about the dispute... Normal working as directed should be conducted by yourself until the matter is resolved. Where you are directed to undertake alternative work or remain away from the workplace as a result of a disciplinary investigation this falls with the scope of normal work as directed... " 29In her submissions, Ms Baxter does not rely on the RailCorp's interpretation of the status quo provisions in Clause 37, as outlined by Mr McDonald, submitting that Mr Smith's conduct was inappropriate in any case. But I am prepared to conclude from the evidence before me that RailCorp was not in breach of the status quo provisions of Clause 37 by providing Mr Smith with alternative employment. 30In the written statement which formed the basis of his evidence in this hearing, Mr Smith indicated that: "....I now know my actions in trying to return to my driver's role were wrong and I should have followed the dispute settling procedure..." 31But in his oral evidence Mr Smith seems to still be under the impression, that RailCorp was in breach of the collective agreement. His reliance on that alleged breach by RailCorp does not, in my opinion, justify his conduct on Friday, 20 August, 2010. He had no right to take matters into his own hands and challenge the decision made by RailCorp to place him on alternative duties, which he had already accepted when he signed the letter RailCorp sent to him on Wednesday, 30 June, 2010. 32That having been said, there may be occasions where a particular incident which led to the dismissal, considered on its own, would not actually justify that dismissal and a lesser penalty may be more appropriate, a suspension, counselling or a warning letter. As Mr Heaney submitted, the question remains whether, to use the language of the Full Bench of the State Industrial Relations Commission (Fisher J - President, Hungerford J and Connor C) in Pacific Power v Crump (1993) 48 IR 296 at p.302, "...the ultimate sanction of termination of employment was too severe a penalty in the circumstances [ Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231]. 33But the decision of an employer should also be considered in the context of the employee's overall employment record. If that record is unsatisfactory, the later offence may simply be the straw that breaks the camel's back [ John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517] . For instance, in Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Cook J of the former Commission commented (at p.27) that: "...in my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to the observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement..." 34I appreciate that driving a train is something which Mr Smith has from childhood been enthusiastic about. That was his evidence in this hearing. It nevertheless appears to me that Mr Smith has for some time been skating on some fairly thin ice in his employment relationship with the RailCorp. His conduct on Friday, 20 August, 2010 was unacceptable considered on its own, but bearing in mind Mr Smith's past conduct, it raises significantly more concern over his general attitude at work. ORDER 35In the circumstances, the TAB sees no grounds to intervene in support of Mr Smith in this hearing. I therefore propose to dismiss his appeal. P J CONNOR Commissioner 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. Decision last updated: 03 August 2011