Topman v State Rail Authority of New South Wales

LEGAL REPRESENTATIVES: RESPONDENT Mr P Ginters of counsel Solicitor: Ms A Sharp Henry Davis York

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

LUCY TOPMAN V STATE RAIL AUTHORITY OF NEW SOUTH WALES

Application by Lucy Topman for Leave to Appeal and Appeal against the Decision of the Vocational Training Tribunal given on 3 November 2003 JUDGMENT

1. This appeal concerns an application for leave to appeal and an appeal against the decision of the Vocational Training Tribunal Appeal Panel ("the Appeal Panel") given on 3 November 2003 in which the Appeal Panel determined that the training contract entered into between Lucy Topman and the State Rail Authority of New South Wales on 5 September 2002 be cancelled effective from 21 July 2003 on the basis that the Appeal Panel was satisfied that the training relationship between the parties had irrevocably broken down.

2. The appeal is brought pursuant to s 55 of the Apprenticeship and Traineeship Act 2001 ("the Act") which provides: 55 Appeals to Industrial Relations Commission (1) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the Commission ), but only by leave of the Commission. (2) An application for leave to appeal under this section must be made within 6 months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission: (a) may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal, and (b) is not bound by the rules of evidence, but may inform itself in any manner it thinks fit. (4) The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made. 3. Before turning to consider the substance of the appeal, I will briefly deal with the statutory provisions that relate to traineeships and apprenticeships in New South Wales.

4. Section 12 of the Act provides that a training contract (under which a traineeship is established) becomes binding on the employer and trainee, as if it were a deed duly executed, from the later of when: (a) the employer is notified that the establishment of the traineeship has been approved; or (b) the end of the probationary period: s 12(2)(c). 5. The duties of an apprentice or trainee are set out in s 16 of the Act. This section provides, amongst other things, that an apprentice or trainee must make all reasonable efforts to acquire the competencies of the vocation concerned and to obtain an appropriate qualification. Importantly, s 16(2) provides: (2) An apprentice or trainee must discharge his or her obligations under the apprenticeship or traineeship as an employee of the employer. 6. From the date the training contract becomes binding, it cannot be terminated or cancelled by either party except through the machinery established under the Act as follows: (a) cancellation by consent of both parties via a joint application to the Commissioner of Vocational Training: s 22; or (b) cancellation via the complaint mechanism: s 39. 7. Under the complaints mechanism, a party may apply to the Commissioner to have the traineeship cancelled on the basis that a party to the traineeship has failed to discharge his or her obligations under the traineeship.

8. In the particular circumstances of this case, the respondent invokes s 39(1) of the Act which provides: 39 Complaints to be made to Commissioner (1) A complaint that a party to an apprenticeship or traineeship has failed to discharge his or her obligations under the apprenticeship or traineeship may be made: (a) by the other party to the apprenticeship or traineeship, or (b) by an industry training officer who is a public servant. 9. It is the respondent's case that the appellant failed to comply with her obligations under her training contract and in particular, she failed to comply with reasonable requests and lawful directions given to her by the respondent which ultimately led to breaches of s 16(1) and s 16(2) of the Act.

10. This Court is provided with the same powers as the Appeal Panel: s 55(3). The Appeal Panel must not grant relief unless it is satisfied that the person against whom the complaint is made has failed to discharge their obligations under the traineeship to which the complaint relates, or has failed to comply with the requirements of the Act: s 51(2).

11. Further, the Appeal Panel must not suspend or cancel a traineeship under s 51(1) of the Act unless it is satisfied that one of the parties is unlikely to discharge its obligations under the traineeship: s 51(3)(a).

12. Mr P Ginters of counsel who appeared for the respondent accepted that it was incumbent upon the respondent to demonstrate to the Court that the applicant: (a) failed to discharge her obligations under the traineeship and/or the Act; and (b) is unlikely to discharge her obligations under the traineeship (in the future). 13. Mr Ginters was unable to refer the Court to any authority that had cause to determine the question of what approach the Court should adopt in relation to an "appeal" pursuant to s 55 of the Act.

14. The Explanatory Note to the Apprenticeship and Traineeship Bill simply provides: Clause 55 provides for an appeal to the Industrial Relations Commission, but only by leave of the Commission, from decisions of the Appeal Panel. 15. No assistance is derived from the terms of the Second Reading Speech introducing the Apprenticeship and Traineeship Bill. During the debate in the Legislative Assembly on 19 September 2001, Mr Aquilina, Minister for Education and Training commented: Existing worker trainees are entitled to remain employed and retain their rights, including their right under the Industrial Relations Act 1996 to access the Industrial Relations Commission. 16. In Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, the High Court gave consideration to the approach to be adopted in relation to an "appeal". Gleeson CJ, Gaudron and Hayne JJ held at [13]: If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. 17. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622, Mason J, with whose judgment Barwick CJ and Stephen J agreed said: Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect... 18. The categories of appellate jurisdiction were collected by Glass JA in a passage in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298: "Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below. Graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court, they are as follows: (a) Appeals to supervisory jurisdiction . Only errors going to jurisdiction or denials of natural justice can be ventilated.

(b) Appeals on questions of law only , e.g. from the Workers' Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.

(c) Appeals after a trial before judge and jury . The result below will be disturbed if the judge fell into error of law, or if the jury's errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.

(d) Appeals from a judge in the strict sense , e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v Dignan (1931) 46 CLR 73 at 107.

(e) Appeals from a judge by way of rehearing , e.g. appeals under s. 75A of the Supreme Court Act , 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey (1968) 70 S.R. (NSW) 1. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey (1968) 70 S.R. (NSW) 1; Edwards v Noble (1971) 125 CLR 296 at 304.

(f) Appeals involving a hearing de novo , e.g. appeals from a Court of Petty Sessions to a Court of Quarter sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v Fitzhardinge (1906) 4 CLR 716. 19. The matter proceeded before me as an appeal by way of re-hearing. A consideration of the following provisions point in favour of the appeal being an appeal by way of re-hearing. Firstly, the Court is empowered to exercise any "function" that could have been exercised by the Appeal Panel: s 55(3)(a). Secondly, the Court "is not bound by the rules of evidence but may inform itself in any matter it thinks fit": s 55(3)(b). Thirdly, an appeal to the "Appeal Panel is to be dealt with by way of a new hearing and fresh evidence or fresh information may be given on appeal": s 54(2). Fourthly, the proceedings before the Tribunal and the Appeal Panel were conducted in an informal manner with no affidavits being filed and no exhibits being formally tendered and no transcript being taken of the proceedings.

20. However, in view of the decision that I have ultimately reached in this matter, it is not necessary to decide this question.

Grounds of Appeal 21. The essential grounds of appeal relevant to an appeal under s 55 of the Act were: (a) whether the decision of the Appeal Panel was fair; (b) whether Ms Topman was given every opportunity to continue and succeed in her traineeship. Evidence 22. Mr John Paul Bonanno, the Acting Training Standards Manager, Training Standards Unit for Railcorp (formerly State Rail) gave evidence that on or around 30 May 2003, he received a telephone call from two trainee drivers that Ms Topman had cheated in her Road Knowledge Module exam. Written complaints were subsequently received by Mr Bonanno.

As a result of these concerns, Mr Bonanno determined that Ms Topman would not graduate on the scheduled graduation date of 5 June 2003. When Mr Bonnano informed Ms Topman of this fact, she reacted in a highly emotional and reactive way and was very upset and agitated. Mr Bonnano was concerned at the appellant's reaction and decided that it was necessary for Ms Topman to undertake a psychometric assessment based on his observations of her conduct and reactions.

Mr Bonnano's evidence was that he had real concerns about whether she was the right fit for the position of train driver and whether she would have the capacity to deal with safety critical situations in a calm and rational manner.

Mr Bonnano had initially received complaints about Ms Topman's conduct, behaviour and performance in February and April 2003. As a result of these complaints, Mr Bonnano arranged for Ms Topman to see the respondent's organisational psychologist, Ms Small, for an assessment as to Ms Topman's suitability to be a train driver. Ms Topman attended a meeting with Ms Small but refused to provide her informed consent for the psychological assessment.

Ms Topman had also not completed a module known as Personal Protection. Satisfactory completion of this module was a pre-requisite to the completion of traineeship.

I was not informed the basis upon which State Rail is able to decide that a trainee must undertake a psychometric assessment and whether a trainee can be compelled to do so.

I have some reservations whether such a direction was appropriate, particularly in advance of, for example, counselling. On the evidence before me, the decision was made by Mr Bonnano because of the way Ms Topman reacted to being told she was not graduating. Her reaction, in all the circumstances, may well have demonstrated the frailties of youth. Whether it should ground a basis for a psychometric assessment is another matter. I am therefore not prepared to take Ms Topman's refusal to undertake any psychometric assessment into account in determining this appeal.

The evidence of Mr R Devitt, Manager of Australian Rail Training was that the Policy and Procedures for Assessment (Generic) provides that trainees have the opportunity to attempt an assessment three times. If a trainee is assessed as "not yet competent" in any assessment modules, they are permitted two further attempts to be assessed as "competent". For the purposes of assessment, a trainee who is accused of cheating is deemed "not yet competent". The trainee is given a further opportunity to re-sit the examination and gain an assessment of "competent". This is standard protocol, as it is believed to be the best method by which to ensure that the person is competent.

This policy position is consistent with the Assessment Guidelines for Assessment and Workplace Training published by the Australian National Training Authority.

The Road Knowledge Assessment Module is a safety critical competency and therefore State Rail must have no doubt as to the person's competency in this area.

On 6 June 2003 the respondent directed Ms Topman to attend a psychometric assessment. Ms Topman refused to undertake this assessment.

At a meeting which took place on 2 July 2003, Ms Topman was advised that she would be required to re-sit the Road Knowledge Module Exam under supervision on 7 July 2003 and that she would be provided with four hours study time prior to the exam on that day.

Ms Topman failed to re-sit the Road Knowledge Module Exam on 7 July 2003.

On 8 July 2003, Ms Topman was directed to re-sit the Road Knowledge Module Exam on 11 July 2003.

In light of the view formed by the respondent that Ms Topman required intensive remedial training, the Road Knowledge Module Exam was deferred until 15 July 2003.

On 10 July 2003, Ms Topman was directed to re-sit the Road Knowledge Module Exam on 15 July 2003.

Ms Topman refused to re-sit the Road Knowledge Module Exam on 15 July 2003.

A further direction to undertake the Road Knowledge Module Exam on 15 July 2003 was issued by the respondent. Notwithstanding the further direction, Ms Topman did not undertake the Road Knowledge Module Exam as directed.

On 18 July 2003, a meeting took place between Ms Topman, Mr Fawcett, the Traineeship Manager, Mr Tsirkas, Ms Topman's union representative, Ms L Latimer, an education consultant and also the minute taker at the meeting, and Mr Bonnano. Ms Topman was directed to re-sit the Road Knowledge Module Exam on 21 July 2003 and attend a psychometric assessment on 21 July 2003.

During this meeting Mr Tsirkas asked what would happen if Ms Topman did not sit the exam. Mr Bonnano informed Mr Tsirkas that Ms Topman would be stood down without any pay.

On 21 July 2003 Ms Topman refused to sit the Road Knowledge Module Exam.

Due to Ms Topman's repeated refusals to comply with lawful and reasonable directions, Mr Bonnano issued Ms Topman with a notice informing her that as she was refusing to carry out directions to perform duties within the terms of the award and her employment conditions, the respondent now considered her to be on strike and not entitled to any payment of wages.

In my view, the failure to carry out one aspect of her duties does not amount to Ms Topman being on strike. In any event, it is only the Vocational Training Tribunal that has the power upon application to suspend a traineeship.

On 24 July 2003, a further meeting took place between Ms Topman, Mr Tsirkas, Mr Fawcett, Mr G Ross, the Industry Training Officer, New South Wales Department of Education and Training and Mr Bonnano. This meeting lasted approximately three hours. During this meeting Ms Topman was directed to, and agreed to sit the Road Knowledge Module Exam on Monday 11 August 2003 and attend an external psychometric assessment test on Tuesday 12 August 2003.

Mr Bonnano's evidence was that the reason Ms Topman was directed to attend an external psychometric assessment was that she had refused to be assessed by Ms Small and had expressly asked to attend an external psychologist for assessment. During the meeting on 24 July 2004, Mr Bonnano informed Ms Topman that the external psychometric test was a very expensive test and that if she did not turn up to this test, there would not be a second opportunity.

On 11 August 2003, Mr Bonnano received correspondence indicating that Ms Topman had refused to undertake the Road Knowledge Module Exam.

On 12 August 2003, Ms Topman failed to sit the external psychometric assessment.

On or about 12 August 2003, the respondent wrote to Mr Ross formally requesting that Ms Topman's traineeship be cancelled.

On 19 September 2003, the Vocational Training Tribunal directed Ms Topman to undertake the Road Knowledge Module Exam and a psychometric assessment before 3 October 2003. The Tribunal also directed that the traineeship be suspended from 21 July 2003 to 3 October 2003.

On or around 24 September 2003, Ms Topman was directed to attend a Road Knowledge Module Exam on 29 September 2003 and a psychometric assessment on 29 September 2003.

On 29 September 2003, Ms Topman advised Ms Fawcett that she would not be attending the scheduled examinations due to sickness. Ms Topman provided a medical certificate stating that she was unfit for work until 3 October 2003.

On or around 1 October 2003, the respondent wrote to Ms Topman directing her to attend a Road Knowledge Module Exam on 7 October 2003 and a psychometric assessment on 7 October 2003.

On 7 October 2003, Ms Topman failed to attend the appointments to complete the Road Knowledge Module Exam and the psychometric assessment. The respondent wrote to Mr Ross requesting cancellation of Ms Topman's traineeship.

On 3 November 2003, the Vocational Training Tribunal cancelled the appellant's traineeship, effective from 21 July 2003.

Ms Topman appealed the decision of the Vocational Training Tribunal of 3 November 2003, to the Appeal Panel of the Tribunal. On 18 December 2003, the Appeal Panel upheld the decision of the Vocational Training Tribunal.

During the proceedings, Ms Topman was not able to provide the Court with any legitimate explanation as to why she had failed to sit the Road Knowledge Module Exam. Ms Topman agreed that State Rail needed to be satisfied that its trainee drivers and drivers were competent in road knowledge.

Clearly, Ms Topman was at fault in failing to discharge her obligations under the Act and obey the lawful and reasonable directions of her employer.

I am not satisfied, due to Ms Topman's conduct, that the Court should intervene in this matter, except in respect of the date of the cancellation of the traineeship. Ms Topman was given, on any view, a substantial number of opportunities (seven in all) to sit the Road Knowledge Module Exam. Having failed to avail herself of those opportunities, she cannot complain now.

The Appeal Panel determined that Ms Topman's traineeship should be cancelled from 21 July 2003. In my view, the cancellation should be effective from 18 December 2003. This was the date that the Appeal Panel determined the matter and confirmed the cancellation of Ms Topman's traineeship. I therefore determine that the cancellation of the traineeship be effective on and from 18 December 2003. In accordance with s 52(1), I direct that the respondent pay Ms Topman her normal salary up to and including 18 December 2003.

In reaching this decision, I have reviewed all of the evidence before me and given it due weight.

I have also made due allowance for the frailty of youth. In these circumstances, this decision should not lead to long term consequences for Ms Topman. She is a young woman whose youthful enthusiasm and inexperience may have resulted in behaviour which is usually associated with the transition from youth to adulthood.

In respect of the question of leave, I find that it is unnecessary to strictly decide this issue in circumstances where the appellant has been unsuccessful on the merits of her appeal.

Mr Ginters submitted that the Court should refuse leave, submitting that the principles to be applied in considering the question of leave to appeal are to be found in Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380 at 381-382. Knowles is a decision of a Full Bench of this Commission that considered policy issues and strict leave provisions arising under the Industrial Relations Act 1996.

The appeal presently before the Commission arises out of the Apprenticeship and Traineeship Act 2001. Such appeal is to a single Member of the Commission and is almost inconsistent with the appeal provisions found in the Industrial Relations Act (ch 4 Pt 7).

In my view, different considerations therefore should apply in respect of appeals brought pursuant to s 55 of the Apprenticeship and Traineeship Act. An appeal may be so frivolous or so lacking in merits that leave would be refused under s 55, however, in light of the decision that I have reached, it is unnecessary to decide this question.

Although an appeal under s 55 could attract the provisions of s 181 of the Industrial Relations Act 1996, the appropriate order, in my view, is that each party should bear their own costs.

ORDERS I make the following orders: 1. The appeal is dismissed. 2. Ms Topman's traineeship is cancelled from 18 December 2003. 3. Within 14 days of the date of this judgment, the respondent is to pay to Ms Topman her salary up to the date of cancellation of the traineeship 4. No order as to costs.

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.