DISPUTE RE ALLEGED UNFAIR DISMISSAL OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00344

DELIVERED : MONday, 10 june 2013

FILE NO. : CR 65 OF 2012

Applicant

AND

Public Transport Authority of Western Australia

Respondent

Catchwords : Industrial law (WA) - Termination of Employment of Union member – Whether incident sufficient to warrant termination of employment – Consideration of prior conduct and performance – Principles applied – Application dismissed

Legislation : Industrial Relations Act 1979 ss26(1)(a) and (c), 44(9)

Result : Application dismissed

Representation:

Applicant : Mr C Fogliani

Respondent : Mr D Anderson of counsel

Case(s) referred to in reasons:

Miles v The Federated Miscellaneous Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385;

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

Reasons for Decision

1         Mr Claydon is a member of the Union and was employed by the Public Transport Authority as a Transit Officer in about mid-2007.  As a consequence of a series of incidents, Mr Claydon’s employment was terminated by the Authority on 9 November 2012 by the payment of four weeks’ salary in lieu of notice. The Union, on behalf of Mr Claydon, now challenges his dismissal and seeks his reinstatement.

2         The Authority contended that Mr Claydon’s dismissal arose from a long history of difficulties with Mr Claydon’s punctuality and his inability to work without supervision. Events that occurred on 22 July 2012, when it is alleged that Mr Claydon was not ready to commence work “fully rigged up” at his appointed start time, were the “straw that broke the camel’s back” for the Authority.  This is challenged by the Union.  It contended that the events of 22 July 2012, viewed in context, were relatively minor and were not sufficient to warrant Mr Claydon’s dismissal.

3         In determining this matter, the Commission will consider the events of 22 July 2012 and Mr Claydon’s prior conduct and performance.

22 July 2012 incident

4         On 22 July 2012 Mr Claydon was rostered on shift to commence work at 3pm at the Stirling Train Station.  As a result of a customer complaint about an unrelated matter, the Authority had cause to review the CCTV footage for the station.  In the course of doing so, Mr Claydon was observed entering the station office at approximately 3pm, and the Authority contended he was not ready for the commencement of his rostered shift at his designated start time.  It was common ground that to be ready for a rostered shift at the designated start time, means being “rigged up” and ready to start work. For a Transit Officer, being “rigged up” means being fully dressed in uniform and wearing the accoutrement belt, but excluding the OC spray canister. The requirement to be rigged up in this fashion is to enable Transit Officers to attend to any issue as a part of their responsibilities, including assisting a member of the public who may need security assistance.

5         Also on this occasion, Mr Claydon was observed remaining in the station office for approximately 98 minutes, without the approval of the Shift Supervisor. It was also common ground in relation to this matter that the Authority’s Transit Officer Operations Manual, requires Transit Officers to seek the permission of their supervisor to remain in the office beyond 15 minutes at the start of a shift.  This is because Transit Officers are required to maintain a high degree of visibility for members of the public, on train platforms and in car parks.  Transit Officers are also required to greet trains on their arrival at stations.  A safety presence is required for patrons during these times.

6         These requirements were referred to in the testimony of Mr Svirac, the Authority’s Transit Manager Security, Transperth Train Operations. In particular, Mr Svirac testified that punctuality is important because a Transit Officer not only needs to be able to respond to issues with members of the public, but to assist other Transit Officers.  For safety reasons, Transit Officers are required to work in pairs.  If, for example, Transit Officers are required on a particular train, one of the Transit Officers being late for duty may result in the train service being without security for its whole journey.

7         Because Mr Claydon remained in the office for approximately 98 minutes without approval, Mr Svirac said that the Stirling Station platform did not have the presence of two Transit Officers as required.

8         Mr Claydon did not dispute the fact that he arrived for work just before his appointed start of shift and was not fully rigged up as he was required to be.  He was aware of the requirement. This was not the first occasion he had been either late for work, or arrived right on his appointed shift commencement time. There had been a long prior history of problems with Mr Claydon’s punctuality, which to his credit, Mr Claydon acknowledged in his testimony. I will deal with the prior history later in these reasons.

9         Mr Claydon testified that he had been at his nephew’s birthday party on the day in question and lost track of time.  He said he arrived at work at 2:59pm in part uniform.  Inside the office, Mr Claydon put on his uniform shirt and vest.  He testified that he took approximately 45 to 60 seconds to do this.  Mr Claydon accepted, however, that he did not have his radio and OC spray on at the time.  In response to a question from the Commission, Mr Claydon agreed that he often “cut it fine” and “shaved it close to the bone” in terms of his punctuality.  He was involved a number of activities outside of work:  33T

10      In terms of the allegation that he spent some 98 minutes in the station office, contrary to the manual, Mr Claydon said that he was quite tired from a broken sleep the night prior.  He was also required to review an incident report he had completed from the previous night shift. While the incident report had been lodged with the Supervisor, Mr Claydon said that he was checking it to make sure all the details were correct.  A copy of the incident report form was exhibit A1. The narrative of the incident is one paragraph or so in length. Most of the remaining pages in the document are crossed out as not applicable. Mr Svirac testified that such a report, from his experience, should take no longer than five to 10 minutes to review.

11      Mr Claydon testified that his Transit Officer partner was on the platform at the time that he was in the office.  Furthermore, he contended that on Sundays, the only obligation on Transit Officers is to greet “football specials” and all train services after 7pm. Mr Svirac’s testimony was to the effect that all Transit Officers know, or should know, that they are required to greet train services on the platform.  He emphasised the importance of Transit Officers being visible to the public and being present, with their Transit Officer partner, to attend to any issue that may arise or to provide necessary safety support.

12      Whilst the Union argued that Mr Claydon was present at work by 3pm, I do not consider that it was acceptable for a Transit Officer to arrive at work literally seconds prior to the appointed start of shift.  In my view, as a matter of common sense, there is an obligation on a Transit Officer to arrive at the workplace in good time to get rigged up and to be prepared to commence duty at the appointed start of shift time.  On his own admission to the Authority in the course of the investigation, Mr Claydon did not comply with this obligation.

13      Moreover, I do not accept in the circumstances, it was reasonable to spend over one and a half hours in the station office reviewing exhibit A1, which can only be regarded as a relatively brief document. The fact of Mr Claydon not obtaining the approval of his Shift Supervisor, contrary to the manual is one thing. Equally important, however, was his absence from the platform, and thus, not being able to provide appropriate safety support for his Transit Officer partner on the day in question. Such an absence from the platform and the surrounds of the station was contrary to the obligations imposed on a Transit Officer under the manual, to ensure patron safety by being present for the arrival of trains, following passengers to car parks and otherwise having visibility for patrons. Safety for both patrons, and other Transit Officers, is of paramount importance.

14      These two incidents, taken in isolation, would not be sufficient to warrant termination of employment. However, as noted at the outset of these reasons, Mr Claydon has had a lengthy history of problems with punctuality whilst employed by the Authority.  I turn to consider this issue now.

Prior conduct and performance

15      It was common ground that Mr Claydon had punctuality problems and on occasion failed to attend to station duties as far back as June 2008. A detailed chronology of these matters was contained in exhibit R1, a series of internal memorandums regarding disciplinary action taken by the Authority concerning Mr Claydon’s conduct. In summary, Mr Claydon was late for duty on eight occasions in 2008 and two occasions in 2009 and 2010. He had numerous punctuality problems in 2011. He failed to attend to station duties on several occasions in 2008, 2009 and 2010.  In 2011, Mr Claydon was further disciplined for failing to attend to station duties.

16      As a result of these breaches of discipline, Mr Claydon was informed that his employment was at risk. He was also put on two Performance Improvement Plans, one from 21 February 2011 and the second from 24 June 2011, in an endeavour to remedy these difficulties. Also, to assist with punctuality, Mr Claydon was relocated to the Perth Line Roster from 29 January 2012 to 6 May 2012, so that he would be more closely supervised.  However, even while placed on the second Performance Improvement Plan, numerous instances of Mr Claydon being late for shift starts were recorded.  On many occasions, despite Mr Claydon’s repeated assurances to modify his punctuality and to arrive at work at least 15 minutes prior to the start of shift in order to be ready to start work in good time, Mr Claydon still transgressed.

17      The respondent’s attempts to get Mr Claydon to modify his conduct were dealt with in some detail in the testimony of Mr Svirac.  It is sufficient to observe that Mr Svirac gave Mr Claydon many opportunities to mend his ways, including several “second chances” prior to escalating the issue formally to the Authority’s Labour Relations Division to review Mr Claydon’s ongoing employment.  Mr Svirac testified that Mr Claydon was a likeable employee, and he was endeavouring to get him to change his ways, to avoid the need to terminate his employment.

18      On all of the occasions when these issues were raised with him, Mr Claydon acknowledged his problem with punctuality and not attending to station duties, and undertook to do better in the future. Mr Claydon also acknowledged, to his credit, that as a consequence of his ongoing failure to comply with the obligations on him as a Transit Officer, his employment was being placed at risk.

19      It is against this background that the events of 22 July 2012, took place.  It is also against this background, that the Commission must consider Mr Claydon’s claim.

Conclusions

20      Whether the dismissal of an employee is harsh, oppressive or unfair, involves an assessment by the Commission as to whether the employer’s lawful right to terminate the contract of employment has been abused: Miles v The Federated Miscellaneous Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385.  It is also established that it is not for the Commission to assume the role of the manager in considering whether a dismissal is or is not unfair.  The test is an objective one in accordance with the Commission’s duty under ss 26(1)(a) and (c) of the Act.

21      Moreover, contemporary standards of industrial fairness require that before an employee is dismissed, they be given fair warning that their employment is at risk. If their performance or conduct does not improve as required by the employer, an employee should be informed that termination of employment may be an outcome.  Such a warning should be more than a mere general exhortation to improve and should place the employee in no doubt that their employment is at risk, unless they take appropriate remedial action: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635.

22      I am not to any extent persuaded in this case, that the Authority’s dismissal of Mr Claydon was harsh, oppressive or unfair. The Authority must be able to rely on employees in important positions, such as that of Transit Officer, being reliable and punctual.  Also, the Authority must be able to have confidence that Transit Officers will perform their duties properly in an unsupervised environment.  Equally important, is the obligation on the Authority to ensure, as far as practicable, that the safety of patrons and fellow Transit Officers is not compromised by the failure of a Transit Officer to perform their duties to the required standard.

23      In the present case, Mr Claydon has had numerous chances to remedy his shortcomings.  On each occasion he acknowledged the problem, undertook to do better, but fell short of the required standards once again. In the final analysis, the only person responsible for Mr Claydon’s dismissal was, in my view, Mr Claydon himself. It is hardly surprising that the end result of Mr Claydon’s employment history was a decision by the Authority that it could no longer give him further chances. To do so, would send the message to the Authority’s workforce generally, that it is acceptable to repeatedly fail to comply with the basic obligations of an employee to be punctual in attending for work and to perform duties as required. It is not acceptable. 

24      Taking into account all of the circumstances of the case the Authority has been more than fair to Mr Claydon.  Accordingly, the application is dismissed.