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[2011] NSWIRComm 1056
Industrial Relations Commission (NSW)
2012-01-30
Original judgment source is linked above.
Respondent's representative (Respondent) Mr Adam Walkaden (AMWU) (Appellant) Ms Melanie Robinson (Respondent) File Number(s): TAB 1274 of 2011
Introduction 1Mr Allan Makin, the Appellant, commenced employment with RailCorp on 15 December 1991 as a Motor Mechanic. He was promoted to the position of Plant Mechanic at the Heavy Plant Depot at Clyde on 22 November 2004 and has remained in that position since that time. 2Mr Makin's duties included carrying out repairs and maintenance to various items of machinery operated by RailCorp's Heavy Plant Section. Those duties were carried out both in the depot and at other locations within the RailCorp Network. 3Mr Makin was assigned a motor vehicle to facilitate those repairs as that vehicle carried all of his tools and equipment needed for his day to day duties as a plant mechanic. Mr Makin used that vehicle to pick up parts from suppliers and also in the field carrying out his duties as a plant mechanic. He was also approved home garaging for that vehicle and he drove it to and from his home address to the depot or to where he was starting or finishing on any particular day.
Issue(s) 4The Appellant was charged and convicted at Parramatta Local Court with two discrete offences - firstly, drive with middle range PCA and, secondly, drive with high range PCA. On both occasions he had been disqualified from driving for a period of time. 5The Appellant, contrary to the requirements of the Respondent's Code of Conduct, not only failed to notify RailCorp of the charges and convictions but agreed to Suitable Duties Plans which involved the requirement to drive a truck or car to suppliers to pick up spare parts. 6It was not in dispute that he had not driven during his disqualification period as he had managed to extricate himself from situations when he was asked to undertake that task. 7When RailCorp discovered through a medical report that the Appellant may have a problem with alcohol, a criminal record check was undertaken which revealed the two convictions. An investigation was conducted in which the Appellant was invited to participate. 8The outcome of the investigation was advice to the Appellant that he was to be suspended without pay for a period of two weeks for breach of the Code of Conduct. 9The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU), submitted on behalf of the Appellant, that a caution would have be a more appropriate remedy in the circumstances.
Legislative Regime 10Regulation 36, Definitions, of Transport Administration (Staff) Regulation 2005 defines a "RailCorp Officer" as a Transport Corporation Officer". It was not in dispute that Mr Makin fell within the definition of a RailCorp officer as a result of his employment with RailCorp. "Transport corporation" is defined in Regulation 36 as including "RailCorp". 11Regulation 39 of the Transport Administration (Staff) Regulation 2005 provides as follows: 39 Transport corporation officers convicted of serious offences (1) A transport corporation may take disciplinary proceedings against a transport corporation officer who is convicted of a serious criminal offence . (2) For the purpose of this clause , "serious criminal offence" means an offence committed in New South Wales that is punishable by imprisonment for 6 months or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.
Code of Conduct 12Mr Makin did not dispute that he had received a briefing on, as well as a copy of, RailCorp's 2006 version of the Code of Conduct. 13The 2006 version of the Code of Conduct relevantly provides:
1 st Offence 16Mr Makin was involved in a non work-related motor cycle accident on 4 March 2009 which resulted in an absence on sick leave until 3 May 2010 at which time he returned on a Suitable Duties Plan as a result of that injury . The Plan involved a graduated increase in working hours to 8 hours per day, 5 days per week by September 2010. 17On 1 June 2009 , Mr Makin was charged with "mid range PCA" in relation to that accident. 18On 30 March 2010 , at Parramatta Local Court, Mr Makin was convicted of the offence "Drive with middle range PCA" - an offence punishable by a maximum penalty of 9 months' imprisonment. He was fined $400 and disqualified from driving for 6 months to 30 September 2010. 19The 2006 Code of Conduct requires that Mr Makin immediately inform his supervisor or manager if he has been convicted of a serious criminal offence. It is not disputed that he failed to inform the General Manager, HR Business Partners, or his direct supervisor, either that he had been charged, or convicted of such an offence or that he was disqualified from driving. 20Mr Makin confirmed that he had been signatory to the Suitable Duties Plans designed to achieve his graduated return to work. The Plans specified administrative desk based and filing duties, driving the forklift, and collecting spare parts by driving a truck or car to the supplier . 21On 12 November 2010 , Mr Makin was cleared for full duties.
2 nd Offence 22Mr Makin was involved in a second non work-related vehicle accident on 5 December 2010 . 23He was charged , on 01 February 2011 with the offence "Drive with high range PCA" in relation to that accident - an offence punishable by a maximum penalty of 2 years' imprisonment for a 2 nd or subsequent offence. 24He was convicted , on 13 April 2011 , at Parramatta Local Court of the offence "Drive with high range PCA" and was sentenced to 12 months imprisonment, suspended on entering a bond, and disqualified from driving for 5 years. 25At the hearing of the appeal on the severity of the disqualification at Parramatta District Court on 6 May 2011 , the conviction was confirmed but the disqualification period was reduced to 2 years commencing from 04 May 2011 and concluding on 3 May 2013. 26The 2009 Code of Conduct requires that Mr Makin immediately inform the General Manager, HR Business Partners, or his direct supervisor if he has been charged or convicted of a serious criminal offence. It is not disputed that he failed to inform the General Manager, HR Business Partners, or his direct supervisor either that he had been charged, or convicted of such an offence or that he had been disqualified from driving as was required by that version of the Code of Conduct.
The Allegations 27The following allegations were the subject of an investigation by RailCorp as to whether they constituted a breach of its Code of Conduct: (1)On 30 March 2010, at Parramatta Local Court, Mr Makin was convicted of the offence "Drive with middle range PCA" which carries a maximum penalty of nine (9) months' imprisonment. Yet he failed, as required by the Code of Conduct, to immediately inform the General manager, HR Business Partners of the conviction for a serious criminal offence (an offence punishable by imprisonment for six months or longer). (2)On 1 February 2011, Mr Makin was charged with the offence "Drive with high range PCA" which carries a maximum penalty of two (2) years' imprisonment (for second and subsequent offence). Yet he failed, as required by the Code of Conduct, to immediately inform the General manager, HR Business Partners of the conviction for a serious criminal offence (an offence punishable by imprisonment for six months or longer). (3)On 13 April 2011, at Parramatta Local Court, Mr Makin was convicted of the offence "Drive with high range PCA" which carries a maximum penalty of two (2) years' imprisonment (for second and subsequent offence). Yet he failed, as required by the Code of Conduct, to immediately inform the General manager, HR Business Partners of the conviction for a serious criminal offence (an offence punishable by imprisonment for six months or longer).
Suitable Duties Plans 28Mr Makin was on sick leave from 4 March 2009 following the first non work-related motor cycle accident. He returned to work on suitable duties on 3 May 2010. 29Mr Makin agreed to a Suitable Duties Plan 1 prepared by an external rehabilitation provider, Keystone Professionals, engaged by Mr Makin's insurance company. The Plan, covering the period 3 May 2010 to 14 May 2010 , involved a 2-staged approach depending on his progress. Stage 1 involved working 4 hours per day, 3 days per week and Stage 2 involved working 6 hours per day, 3 days per week on the following suitable duties: Administration: desk based and filing duties; Driving forklift: walks on level ground to access forklift; and Collection of spare parts: drive truck or car to supplier . 30Mr Makin agreed to Suitable Duties Plans 2 and 3, covering the period 10 May 2010 to 28 May 2010 , which also involved a 2-staged approach depending on his progress. Stage 1 involved working 8 hours per day, 3 days per week and Stage 2 involved working 8 hours per day, 4 days per week on the same suitable duties as in Plan 1. 31Mr Makin agreed to Suitable duties Plans 4 and 5, covering the period 19 July 2010 to 6 October 2010 , which involved working 8 hours per day, 5 days per week on the same suitable duties as in Plan 1. 32Following a meeting on 9 September 2010 which included Mr Makin and his manager, Mr Makin was referred to Medibank Health Solutions (MHS) to determine his ability to return to his substantive role of a Plant Mechanic. 33Mr Makin undertook the medical assessment by MHS on 6 October 2010 as a result of a referral by RailCorp. Dr Chris Colquhoun's report, dated the same day, found that Mr Makin was temporarily unfit for his inherent position but fit to perform suitable duties pending receipt of his treating specialists report. 34Mr Makin was certified fit to resume all previous duties, including driving, by his treating orthopaedic surgeon, Dr Robert Molnar, a reviewing orthopaedic surgeon and the rehabilitation provider on 21 October 2010 . 35Dr Chris Colquhoun issued a second interim report, dated 25 October 2010, in which he found that Mr Makin remained temporarily unfit for pre injury duties but fit for suitable duties. He recommended that Mr Makin undergo a workplace assessment by the rehabilitation provider to ascertain his suitability to operate a truck. 36An interim report from MHS, dated 23 November 2010 , found that Mr Makin was fit for duty subject to review with the requirement of a graduated return to duties with a "buddy" and review in 3 months. 37Mr Makin was involved in another motor bike accident on 5 December 2010. 38On 25 January 2011 , Mr Makin was certified fit to resume all duties by his GP, Dr Anthony Alam. As his 3-month review with MHS was due on 22 February 2011, RailCorp immediately referred him to MHS. Mr Karaberis allowed Mr Makin to return to work on alternate duties pending clearance by MHS. Temporary alternate duties agreed with MHS for the period 24 February - 25 April 2011 were: Filing information in the office; Pick up and drop off people and packages; Use forklift to load an unload parts. Signatories to the agreement were Mr Dennis Karaberis, the Plant Services Manager, and Mr Allan Makin, the Appellant. 39Mr Makin undertook a medical assessment by MHS on 17 February 2011 as a result of a referral by RailCorp. Dr Chris Colquhoun's report, dated the same day, found that Mr Makin was temporarily unfit for his inherent position but fit to perform light, sedentary duties outside of the danger zone. He recommended that Mr Makin avoid duties that require squatting, bending and lifting. Dr Colquohoun stated in his report: "Mr Makin's AUDIT score was 15 today, indicating harmful levels of alcohol consumption. Mr Makin's wife reportedly is concerned at his level of drinking and Mr Makin stated that alcohol may have been a factor in the more recent motor bike accident". Mr Karaberis, Plant Services Manager, immediately withdrew the alternate duties deeming them as inappropriate and instructed Mr Makin to undertake only office duties. 40Mr Max Croucher, Track Works Manager, on 1 March 2011 , requested a review of the ongoing availability of duties. 41MHS, on 4 March 2011 , advised that Mr Makin was still temporarily unfit for duty subject to review in June 2011. 42RailCorp sought advice from MHS regarding Mr Makin's alcohol usage and a criminal record check was conducted in relation to the two motorcycle accidents. 43RailCorp received advice on 8 March 2011 that Mr Makin had been charged with mid range PCA on 30 February 2010, was fined $400 and disqualified from driving for a period of 6 months. RailCorp also received advice that Mr Makin had been charged with high range PCA and was on bail pending his attendance at Parramatta Local Court on 21 March 2011. Subsequent investigations confirmed that Mr Makin had not revealed his criminal conviction and the suspension of his licence, as required by the Code of Conduct, to either his Manager, Mr Dennis Karaberis, the Plant Services Manager, or to Mr Dragan Marijan, Manager Plant & Equipment, or to Mr Max Croucher, Track Works Manager, despite the fact that his agreed Suitable Duties Plan, which commenced on 3 May 2010, included a requirement that he drive a forklift and drive a truck or car to suppliers for collection of spare parts. 44As a consequence of the review requested by Mr Croucher, the alternate duties were withdrawn on 11 March 2011 and the Appellant was advised that he was required to clear paid leave entitlements pending further advice from MHS. 45Ms Janette Koelmeyer wrote to Mr Neil Parson, Operations Manager, RailCorp Investigations, on 14 March 2011 , referring the above for investigation in accordance with the Discipline Procedure. The reference was endorsed by Kelly Bond, Manager Business Partners (on 15 March 2011) and Rod O'Donnell, General Manager, HR Business Partnering (on 16 March 2011).
The Investigation 46Ms Elaine Finnegan, Drug and Alcohol Case Manager, Human Resources, RailCorp, on 24 February 2011, forwarded an email to Mr Neil Parsons, Operations Manager Investigations, General Counsel and Governance, requesting that he conduct a criminal record check on the Appellant as he had reported two motor bike accidents and she wanted to know whether any criminal charges had been laid, particularly in relation to any drug or alcohol related offences. 47Mr Parson responded on 8 March 2011 advising that: (1) Mr Makin was charged with mid range PCA on 30 February 2010 and was fined $400 and disqualified from driving for a period of six months. (2) Mr Makin was charged with high range PCA on 1 February 2011 and was bailed to appear in Parramatta Local Court on 21 March 2011. 48Miss Finnegan forwarded that information to Ms Janette Koelmeyer, HR Business Partner Infrastructure Renewals. 49On 26 May, 2011, Mr Brad Kerr, Investigator, wrote to the Appellant advising that a disciplinary investigation was being conducted into the possibility that he breached the RailCorp Code of Conduct. He was provided with the particulars of allegations requiring his written response within 14 days. He was advised that if he chose not to participate in an interview, the investigation may continue in the absence of any verbal response from him. 50The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) provided a written response on behalf of the Appellant to RailCorp, dated 15 June 2011. 51The Union advised that Mr Makin accepted that the facts regarding the allegations as set out in the RailCorp letter were correct and that such conduct amounted to a breach of the Code of Conduct. Nevertheless, it was argued that Mr Makin failed to comply with the Code of Conduct because he was unaware that its terms applied to private matters that had no connection with his employment and matters which did not prevent him from performing all of his usual duties. The Union contended that the directives in the Code of Conduct were neither lawful nor reasonable given the above. It was pointed out that in Mr Makin's 20 year service with the Respondent he has not received a warning for either performance or conduct. The Union cited authorities in support of its arguments. 52On 20 June 2011, Mr Kerr invited the Appellant to attend an interview on 28 June 2011 to provide his version of events and any explanation and/or mitigating circumstances that may exist in relation to the matter. He was advised that if he chose not to participate in an interview, the investigation may continue in the absence of any verbal response from him. That meeting was rescheduled, at the requested of the Appellant, to the following day. 53On 29 June 2011, the Appellant, accompanied by his Union representative, Mr Adam Walkaden, attended an electronically recorded interview. Although he was advised that if he chose not to participate in the interview, the investigation may continue in the absence of any verbal response from him, the Appellant chose to terminate the interview prior to its completion and Mr Walkaden advised that further inquiries would be responded to in writing. 54Mr Kerr wrote to the Appellant on 1 July 2011 reciting the events that had taken place in relation to the investigation of the matter and informing him that, as previously advised, the investigation would continue in the absence of any further verbal response from him. Attached to the letter was the transcript of the partial interview conducted on 29 June 2011. The Appellant was also advised that a written Report of the results of the investigation would be forwarded to the Discipline Review Panel (DRP) who will make a recommendation as to the appropriate disciplinary action, if any, that should be taken. The Appellant was further informed of the disciplinary options available to the DRP including:
The Evidence 60Mr Colin Woolf, Plant Supervisor, Construction, Asset Operations, who has supervised the Appellant since 26 June 2008, gave evidence that once or twice a week after the Appellant's return to work on the Suitable Duties Plans and during the period of the disqualifications he would ask the Appellant to drive a truck over to the Suppliers to pick up parts. He recalled that the Appellant would decline saying words to the effect, " I don't feel like it " or " I don't want to do it ". In the absence of any contrary advice from the Appellant, Mr Woolf formed the view that the Appellant was loathe to drive as a result of the psychological effects of his accidents and that he was still trying to get over the accidents. Mr Woolf said that on those occasions he had personally driven to the Suppliers to pick up the parts.
Respondent's and Appellant's Cases 61The AMWU argued that RailCorp is unable to sanction Mr Makin for his conduct because it occurred out of hours, was of a private nature and did not relate to the subject matter of employment ( Appellant , AIRC 1 February 1999 [Print R1221]): It is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees. 62The AMWU further cited authority for when an employer is able to sanction an employee for out of hours conduct pointing out that it is an objective test (Ross VP, B Rose v Telstra Corporation Limited AIRC, 4 December 1998 [Print 9292]): It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited: the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; or the conduct damages the employer's interests; or the conduct is incompatible with the employee's duty as an employee. In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. The Union argued that, viewed objectively, it cannot be said that any of the factors identified by Ross VP are present in the circumstances surrounding the Appellant. 63In relation to the argument that the directives were neither lawful nor reasonable, the Union cited the test established by the High Court in R v Darling Island Stevedoring and Lighthouse Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at pp 621 - 622 in which Dixon J held that: If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon it being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable...But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case the award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 64The formulation proposed in the above matter by Dixon J, was commented on favourably by Finn J in Graham George Clive McManus v Robin-Scott Charlton [1996] FCA 904: Questions of illegality and reasonableness apart, the alternate formulations of lawfulness proposed by Dixon J are that the command "relates to the subject matter of the employment" or falls "within the scope of the contract of service". It is clear that these were intended to be synonymous in the limitation they expressed. The need for some such limitation is patent: employment does not entail the total subordination of an employee's autonomy to the commands of the employer. As was said by the President in the Australian Tramway Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CLR 35 at 42: "A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuses to attend a particular church, or to wear a certain maker's singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work." There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this.
Findings 65It was not in dispute that Mr Makin's convictions, described above, fall within the definition in Regulation 36 of the Transport Administration (Staff) Regulation 2005 of "serious criminal offence", as both offences attributed to him may be punishable by imprisonment for 6 months or longer. 66Mr Makin maintained that he failed to comply with the Code of Conduct because - 66.1 he was unaware that it was applicable to what he regarded as a private matter; 66.2. the charges/convictions were not connected with his employment at RailCorp; 66.3 he was not briefed nor did he have any knowledge of his obligations under the Code of Conduct; and 66.4 the requirement to disclose contained in the Code of Conduct was neither lawful not reasonable in his circumstances as the incidents had occurred outside of working hours and were of a private nature. 67Mr Makin's arguments were neither plausible nor believable for the reasons set out below. 68Firstly , Mr Makin signed a Declaration Form on 30 July 2006 attesting to the fact that he had attended a briefing on, and received a copy of, RailCorp's 2006 version of the Code of Conduct. That version of the Code of Conduct required Mr Makin to advise his Supervisor or Manager, of the conviction he had received in relation to the first offence. Mr Makin did not do so. 69Secondly , Mr Makin also admitted that he had received a copy of the updated 2009 Code of Conduct forwarded by mail in a booklet form to his home address in about September or October 2010 . He gave evidence that he had placed that booklet in his truck for ready reference. The Investigation Record of Interview records the following exchange with Mr Makin in relation to the receipt of a hard copy of the 2009 Code of Conduct: Q 83. Did you read it at all? A I used to read it but I put it in the truck.... Q 98. But with the RailCorp Code of Conduct, when you had it and you received it, what I'm saying is did you think you needed to.... A. I browsed through it. I browsed through it. Q 99. Okay. A And I put it in the truck for further reference. That version of the Code of Conduct required Mr Makin to advise the General Manager HR Business Partners (and presumably his Supervisor or Manager), firstly of the charge and then the conviction he had received in relation to the second offence. Mr Makin confirmed that he had not notified the HR Business Partner, his Plant Supervisor and/or Managers of the charge or subsequent conviction. 70Thirdly , it is noted that Mr Makin made full admissions to the facts contained in the allegations including the fact that such conduct amounted to a breach of the Respondent's Code of Conduct. 71Fourthly , as part of his contract of employment, the Appellant was assigned a motor vehicle which he was approved to garage at his home to drive it to and from his home to the depot or where he was starting or finishing work on any particular day. He stored his tools in that vehicle and used the vehicle to pick up parts from suppliers in order to carry out his substantive duties. Mr Makin was certified by his GP, on 25 January 2011, as fit to resume all duties. Had RailCorp not required him to await his 3-month review by MHS prior to resuming full duties and had RailCorp not been alerted to the concerns regarding his level of alcohol consumption, he would have been required to resume his driving commitments to and from his home and depots. Mr Makin would have had a choice to make - either drive in contravention of his disqualification in order to avoid telling his employer of his "private matter" or refuse to undertake a task which is part of his substantive duties as he is disqualified from driving until 3 May 2013. It seems to me that Mr Makin was merely putting off the inevitable by not advising RailCorp of his convictions. 72Fifthly , despite being non work-related injuries, the Appellant was provided with Suitable Duties Plans aimed at a graduated return to full duties. He had participated in the devise of those Plans and appended his signature to them. The Plans included the requirement that he drive a truck or car to collect spare parts from suppliers. Mr Makin entered into a number of Suitable Duties Plans, described above, in the full knowledge that he was not able to carry out that function owing to his disqualification from driving. There is no indication that Mr Makin has driven any RailCorp vehicle during his periods of licence disqualification. Nevertheless, despite it being part of his substantive duties and, later, part of the Suitable Duties Plans, he would have the Board believe that his disqualification from driving was a personal matter and any requirement for him to reveal the charges and/or convictions would be an intrusion into his private life. 73Sixthly , the only reason the Appellant's deceit was not picked up earlier was because his Supervisor thought that Mr Makin was psychologically affected by the accidents he had been involved in and was hesitant about driving. Mr Woolf undertook that task himself on each occasion the Appellant declined to do it on the basis that " I don't feel like it " or " I don't want to do it ". Mr Makin, on each occasion, had abused the trust that his Supervisor had in him. 74On the basis of all of the above, I find that the penalty imposed by RailCorp manifestly just. In view of the gravity and nature of the offence the Board considers that the penalty is appropriate.
Order 75The Appeal by Mr Makin against the decision by RailCorp to suspend him without pay for a period of two weeks is dismissed.
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Hussein
Westpac Banking Corporation 59 IR 103; B Rose and Telstra Corporation Ltd U No. 20564 of 1998