[27] The Applicant was issued with a written warning, which he acknowledged as having received on 7 June 2001 in relation to the incident on 12 December 2001[9]. During the Applicant's oral evidence, some tension arose as the whether he was willing to accept responsibility for the derailment which occurred on that day. During cross-examination, the Applicant was emphatic that this incident was not the result of a breach of the safe shunting procedures. I sought to clarify the Applicant's evidence[10]:

"THE VICE PRESIDENT:... Ms Hoctor was asking you questions about the letter of 24 May at page 150 she drew your attention to the handwritten annotation on page 151:

John was particularly open and frank during the investigation and was clear about accepting responsibility for the collision and how to avoid it in the future by propelling into the siding and unloading toward Marrickville.

There seems to me to be a tension between you accepting responsibility on page 151 and what is in paragraph 23 [of the Applicant's Statement] where you are suggesting that it wasn't - you seem to be suggesting it wasn't your responsibility. Can you assist me to resolve that tension. ...

MR SEXTON: No, I am not actually trying to make out in the paragraph that it wasn't my responsibility. I believe that the Boral personnel had been trained in the basic shunting movements and hand signals and so forth and on this occasion the chap sort of gave me a kind of a vague hand signal which, you know, I thought these blokes are not experts in shunting they are just sort of - I just interpreted that as meaning, come towards me. What he was actually saying was, bye-bye, ta-ta, take it out and split it, stand the wagons aside. Now, I accept responsibility in the sense that, okay, with my experience I guess I should have conferred with him, walked down to him possibly and conferred with him: Did you mean come back one or - but I took it on face value and the derailment occurred."

I am satisfied that the warning in relation to the incident which occurred on 12 December 2001 pertained to safety during shunting procedures and is relevant to the current proceedings.

s.170CG(3)(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.

s.170CG(3)(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.

[28] In Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace[11], Lacy SDP considered the manner in which the Commission is to approach an analysis of cases under these provisions. His Honour stated[12]:

"In each of paragraphs (da) and (db) the Commission is required to have regard to the degree to which a particular phenomenon would be likely to impact on the termination of employment procedures. Read literally neither paragraph (da) nor paragraph (db) posits as the primary consideration matters of fact. In each case the requirement relates to an assessment of the degree of likelihood of impact. It does not require an assessment of the actual impact of the specified phenomenon, but rather the degree to which it would be likely to impact."

I have adopted this approach. In the present case the Respondent is a large organisation with dedicated human resource management specialists or expertise. These factors would be likely to impact on the procedures followed in effecting a termination because a business of that size with dedicated human resource management specialists or expertise can be expected to have developed guidelines and procedures which management are expected to follow and which afford procedural fairness to the employee who stands accused of serious misconduct. There is no suggestion that the Respondent failed to follow its own procedures in this regard. I am satisfied that the procedures followed by the Respondent were fair and afforded the Applicant procedural fairness before the decision to terminate was taken. The matters referred to in paragraphs (da) and (db) of s.170CG(3) do not have any operation adverse to the Respondent in the present case.

s.170CG(e) Any other matters that the Commission considers relevant

[29] It is appropriate to take account of the expression of regret and apology containing in the Applicant's letter to Mr Edwards of 30 August 2002:

"I regret and sincerely apologise to both Pacific National and Boral for the occurrence of this incident and any damage it may have caused, whatever the nature of such damage..."[13]

The value of this expression of regret and apology is somewhat diminished by the approach taken by the Applicant in the hearing of this matter. That approach was one by which he sought to excuse or justify his alleged failure to comply with item 3 of the Standard Operational Notice by reference to the obstruction constituted by the stack of rails and other equipment adjacent to the x-frame. It became apparent on the view that this obstruction did not in any meaningful way prevent the Applicant from observing the requirements of item 3.

[30] It is relevant that the Applicant was 54 years of age at the time of the dismissal, and had worked with the Respondent and its predecessor for some 23 years. The personal and economic consequences of his termination were potentially devastating. Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a "fair go all round".

[31] The Applicant tendered a bundle of emails (Exhibit 7) which he contended demonstrated his positive performance as an employee of the Respondent. These emails demonstrate, amongst other things, that the Applicant was active in identifying problems and making suggestions as to solutions for problems or improvements. I have taken these matters to account in the decision I have reached.

[32] The Applicant submitted that the treatment of other cases by the Respondent is also a relevant consideration. Specifically the Applicant relied upon the treatment of one David Mathie who was involved in a derailment in circumstances that were similar in some respects to the present case. The Applicant also relied upon the treatment of Mr Milgate (who received a warning).

[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been "harsh, unjust or unreasonable". In National Jet Systems Pty Ltd v Mollinger[14] the Full Bench concluded that in the particular factual circumstances it was appropriate for the member of the Commission at first instance to have regard to different treatment afforded to another employee involved in the same incident.[15] That case involved the termination of the first officer of an aircraft over incident where the flaps of the aircraft were retracted too soon following takeoff. The Captain on the same aircraft was not terminated notwithstanding that he also bore responsibility for the incident. It is apparent from the reasoning that on the particular facts of the case there was no proper basis for distinguishing between the two individuals and consequently the non-termination of the Captain was a factor in favour of a finding that the termination of the first officer was harsh, unjust or unreasonable.

[34] In Serco Gas Services Pty Ltd v Alkenamde[16] the Full Bench adopted the observation of the Full Bench in National Jet Systems that

"There is little doubt that s170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances."

"We do not think there is any justification in the context 170CA(2) of the Act for implying that a consideration of the comparative treatment of other employees is only relevant to the extent that it demonstrates conduct on the part of the employer which may be regarded as oppressive or discriminatory on some unlawful grounds."

[35] Moreover, in Serco Gas Services the Full Bench considered a submission that the decision in Loty and Holloway v The Australian Workers' Union[18] (the decision from which the notion of "fair go all round" in s.170CA(2) is drawn) "is consistent with the notion of employers treating different classes of employees differently provided that the individual is given a fair go as between that employee and the employer and the employer's conduct is a rational and logical consequence of that circumstance". The Full Bench agreed that Loty's case "does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round."[19]

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round" within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing "apples with apples". There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.

[37] In Hepburn v Department of Justice Office of Corrections[20] Spender J found that a decision by the Department to terminate a prison officer who had established a relationship with a prisoner "was not based on a genuine consideration of the circumstances of her case and of a penalty appropriate to those circumstances" but rather "to avoid the embarrassment" the Department had experienced in another case[21]. On the question of comparative treatment Spender J found that the decision maker had "given no or scant genuine consideration" to a number of relevant matters including "the desirability of parity or equality of treatment with other disciplinary breaches"[22] and concluded[23]:

"It is trite that every case has to be decided on its own facts. But the evidence of these five instances, imprecise as it is to detail, lends force to the submission, which I accept, that there was such a disconformity between the actual breach of discipline of which Ms Hepburn was guilty and the penalty imposed on her as to require the conclusion that termination of her employment was not for a valid reason."

That conclusion had already been established by other evidence. More importantly, it is clear from the reasons that Spender J had sufficient detail of the "five instances" to reach the conclusion that "disconformity" to which he referred were gross[24]. The Full Court of the Federal Court dismissed an appeal against the decision of Spender J.[25]

[38] In Electricity Commission of New South Wales t/a Pacific Power v Nieass[26] the Full Commission of the Industrial Relations Commission was concerned with an appeal against a decision ordering the reinstatement of five employees terminated for the fraudulent manipulation of an electronic work timing system. The Full Commission inter alia considered the issue of consistency of treatment by an employer:[27]

"The Commissioner dealt exclusively with what he saw as being inconsistent punishment. We have serious doubts whether alleged inconsistency of punishment should form part of the consideration of the reasons for intervention under s.246 in the manner in which the Commissioner say was appropriate. The response to misconduct is a matter of discretion. The time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide. It is desirable that employers where they can should exercise leniency. Employers should not be discouraged from such a course by labouring under the disability that once a benign view is taken in one case that no other view is available." (emphasis added)

[39] Under s.246 of the Industrial Relations Act 1991 (NSW) the Commission had jurisdiction to deal with a claim in respect of a dismissal that was "harsh, unjust or unreasonable". In my opinion the emphasised passage is equally applicable to a consideration of whether a termination is "harsh, unjust or unreasonable" under s.170CE and s.170CG of the Workplace Relations Act 1996 (Cth) and the Commission ought not allow the use of differential treatment as a factor in determining that a particular termination is harsh, unjust or unreasonable to develop in such a way as to act as a disincentive to employers to show leniency in appropriate cases.

[40] The Applicant relied upon a Performance Management Interview Form relating to one David Mathie (Exhibit B). That document relates to a derailment of a single wagon at the Boral siding on 12 September 2001. The Respondent had in effect claimed as against Mr Mathie that he had failed to observe items 1 and 3 of the Standard Operational Notice. Mr Mathie received a warning. Witnesses called by the Respondent were cross-examined to the effect that Mr Mathie's case was comparable to that of the Applicant. Mr Edwards, the relevant manager of the Respondent, disagreed. The effect of his evidence was that the treatment of the two individuals was in fact consistent because Mr Mathie's incident was his first incident and he was treated in the same way that the Applicant had been treated in relation to the Applicant's first derailment at Boral (ie. in December 2000): both received a warning.[28] I accept Mr Edwards' evidence in this regard. Mr Ross on behalf of the Respondent identified other points of distinction between the two cases: Mr Mathie's case did not involve a failure to check points and the consequences in terms of damage and the potential for death or injury were more serious in the Applicant's case. Mr Mathie's case is not properly comparable to the Applicant's case primarily because Mr Mathie did not have a prior safety warning at the time of his incident at the Boral siding.

[41] The affidavit of Mr Ross annexes a table[29] which summarises "three relevant incidents involving safework breaches by Pacific National employees during 2002"[30]. The table indicates that in relation to two of the incidents employees were dismissed whereas in the third incident the relevant drivers were issued with a warning. Each of the incidents involves facts different to those in the present case. None of those incidents assists the Applicant. If anything, they demonstrate that the Respondent has dismissed other employees who were guilty of breaches of safe working procedures resulting in an accident.

[42] Even if Mr Mathie's case has been more closely analogous to the Applicant's case I would not be inclined to view that the differential treatment of Mr Mathie rendered the Applicant's termination unjust, harsh or unreasonable. A single comparator based on an unrelated incident would ordinarily not be sufficient to justify such a characterisation, particularly where there are apparent counter examples. In the absence of exceptional circumstances, such and approach would run counter to the important policy considerations referred to in Electricity Commission of New South Wales t/a Pacific Power v Nieass[31].

[43] Mr Milgate received a warning in relation to the incident on 15 August 2002. However, his circumstances are readily distinguished from those of the Applicant. Mr Milgate was driving the engine and was not performing the functions of the shunter. That task fell to the Applicant. The immediate and substantial cause of the accident was failure of the Applicant to observe the requirements of items 2 and 3 of the Standard Operational Procedure. Mr Milgate's contribution to the accident was inconsequential by comparison. The reasons given by the Respondent for the differential treatment of Mr Milgate were that he relied upon the instructions given by Mr Sexton; that he had not received a previous formal warning in relation to shunting collision or breach and that he was under supervision and mentoring with a new permanent co-driver at the time.[32] I accept that Mr Milgate's circumstances were such that it was entirely appropriate that he be treated differently to the Applicant.

[44] Having considered the matters specified in s.170CG(3) and the requirement in s.l70CA(2) that in an application in respect of a termination of employment a "fair go all round" is to be accorded to both the employer and employee, in all the circumstances I have come to the firm view that the termination of the application was not harsh, unjust or unreasonable. In the context of the previous incidents in which the Applicant was involved and the previous warning, the seriousness of the Applicant's breaches of procedure in the incident giving rise to his termination, the seriousness of the derailment that was caused by those breaches and the broader consequences of such breaches for the Respondent justified the termination of the applicant notwithstanding his age and length of service. I dismiss the application under s.170CE(1).

Printed by authority of the Commonwealth Government Printer

4 Selvacandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Northrop J) at p 373

14 Giudice J, Polites SDP and Gregor C, 18 March 1999, Print R3130

15 ibid at [25] - [27]. See also Serco Gas Services Pty Ltd v Alkenamde, per Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [6]

16 Ross VP, Polites SDP and Hingley C, 21 June 1999, Print R6090 at [5]

18 (1971) AR (NSW) 95

20 (1998) 81 IR 32

25 (1999) 94 IR 361

26 (1995) 81 IR 46