PR974345 PR974345 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.120 - Appeal to Full Bench against the order [ PR973657 ] of Senior Deputy President Drake made at Sydney on 14 August 2006 in U2006/4005 re unfair dismissal Rail Corporation New South Wales and Abdul El Hawat (C2006/1607) Public transport industry VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER CARGILL MELBOURNE, 16 OCTOBER 2006 Appeal – termination of employment – unfair dismissal – violence at the workplace – whether employee acted in self-defence – whether response “reasonable, necessary and proportionate” - employee’s conduct properly regarded as misconduct – valid reason for termination – consideration of valid reason and other circumstances such as length of service – no error in the analysis of the Senior Deputy President on alternative approach or remedy – leave to appeal refused. DECISION Introduction [1] This is an appeal, for which leave is required, against the order made by Senior Deputy President Drake on 14 August 2006 which provided for the reinstatement with full back pay of Mr Abdul El Hawat (Mr El Hawat) with Rail Corporation New South Wales (RailCorp) [ PR973657 ]. The decision of the Senior Deputy President was delivered ex-tempore at the conclusion of the proceedings on 10 August 2006. Further reasons for the decision were published on 19 September 2006 in decision [ PR973944 ]. [2] RailCorp appealed against the order on 24 August 2006. The order under appeal was stayed on the basis of undertakings to pay Mr El Hawat until the determination of the appeal and also pay the amount of back payment into an interest-bearing account pending the determination of the appeal. The appeal was heard by this Full Bench on 26 September 2006. Background [3] The termination of the employment of Mr El Hawat arose from an incident between him and a member of the public at Fairfield Railway Station on 20 September 2005. At the time, Mr El Hawat was a Duty Manager stationed at the Fairfield station. The allegations against him were described in RailCorp’s letter to him advising of an investigation into the incident in the following terms: “About 9.00pm on Tuesday the 20 th of September 2005 whilst Mr El Hawat was on duty as Duty Manager at Fairfield Railway Station he was involved in a heated verbal and physical altercation with a male customer on platform one. After the altercation had ended through the intervention of an unidentified member of the public, Mr El Hawat attempted to punch the male customer who was standing near the danger zone (yellow line) at the edge of the platform.” [4] RailCorp conducted an investigation into the incident. As a result of the investigation, RailCorp found that the allegation was substantiated and the conduct represented a breach of RailCorp’s anti-discrimination and harassment policy. Mr El Hawat was given the opportunity to make a submission regarding the proposed disciplinary outcome of dismissal. After considering material provided by him, RailCorp determined to terminate his employment on the grounds of misconduct. [5] RailCorp relied on CCTV footage of the incident and various documents relating to its investigation, relevant RailCorp policies, and training provided by RailCorp to Mr El Hawat in personal safety and dealing with violence at the workplace. Evidence was also given by a fellow RailCorp employee, Ms Hall, who witnessed the incident from the platform at which the altercation occurred. [6] It is common ground that the incident arose after Mr El Hawat declined to open the toilets on the railway station at the request of the unidentified member of the public concerned. Denying the request was in accordance with RailCorp’s practices and policies. As a result of this refusal, the member of the public abused and threatened Mr El Hawat while Mr El Hawat and Ms Hall were in the station office on platform 1. [7] Some minutes later, as Ms Hall left the station office at the end of her shift, Mr El Hawat also left the station office and went onto the platform, a few metres from the door of the station office. He was approached by the same member of the public who had previously abused him. The member of the public then instigated a physical altercation. For approximately the next 20 seconds, the two pushed, wrestled and attempted to kick each other, when another member of the public intervened to separate them. The two combatants continued to verbally abuse each other. Mr El Hawat alleged that the first member of the public also spat at him. [8] Approximately 7-9 seconds after their separation by the second member of the public, Mr El Hawat threw a punch with his right hand towards the face of the first member of the public. The punch did not connect. A third member of the public then intervened and Mr El Hawat returned to the station office. [9] No issue is taken with Mr El Hawat’s conduct in defending himself when physically attacked by the member of the public. The termination was based on the throwing of the final punch, given that it took place 7-9 seconds after the intervention of the second member of the public, and the conclusion reached by RailCorp that its policies and training required that employees adopt the “step back” process when faced with a threatening situation, and that any self defence must be “reasonable, necessary and proportionate” in the circumstances. [10] We also note the evidence of the other RailCorp employee, Ms Hall who was still present on the platform, albeit some distance away, when the altercation occurred. Ms Hall said: “I then moved back closer down the platform and watched what was going on. At this point a male customer that was already on the platform had intervened and was attempting to break the altercation up. During the altercation, I observed Mr El Hawat and the male customer physically punching and attempting to kick into each other and there was a lot of yelling at each other. I was yelling at Mr El Hawat to get back inside the control room. The male customer that intervened was also telling both of them to stop and break it up. I was also very concerned about the safety of all involved because it was so close to the danger zone and there was a train due on platform one at any time.” [11] RailCorp concluded that considerations of safety were paramount and the attempted punch by Mr El Hawat occurred in close proximity to the danger zone (marked by a yellow line), at the edge of the station platform. About 30 seconds after the attempted punch, a train arrived at the platform. RailCorp contended that Mr El Hawat’s actions in attempting to punch the member of the public were unsafe, and exposed him and the member of the public to danger - particularly if Mr El Hawat’s fist had connected with the member of the public’s face. It contended that the attempted punch could not be described as “reasonable, necessary and proportionate” self-defence in the circumstances. [12] Senior Deputy President Drake based her decision on two alternative bases. First, Her Honour considered that Mr El Hawat’s conduct was not misconduct and therefore there was not a valid reason for the termination. Hence the termination of employment was harsh, unjust or unreasonable. Her Honour said: [20] Despite Mr Lloyd’s submissions I was not persuaded that it was reasonable to expect that Mr El Hawat should have paused when he thought he was being attacked and engaged in defending himself, have then considered his physical position in relation to the yellow line and then ceased his present physical defence or desisted from further defending himself. It is possible that a particularly calm or saintly person might move away in the manner Mr Lloyd suggested but I concluded that was an entirely unreasonable expectation of any ordinary man in the circumstances in which Mr�El�Hawat found himself on that evening. [13] The alternative conclusion of the Senior Deputy President was expressed in the following terms: “[22] I considered in the alternative whether if Mr El Hawat’s arm movement towards Mr X did amount to misconduct, contrary to my findings, whether it was misconduct that would have justified termination of employment. I concluded that it would not have been misconduct which justified termination of employment. [23] The most important issue for my consideration was the safety issue. This was a pre-eminent concern for RailCorp. The altercation took place on the station platform. There is a yellow line near where the final action took place. If either Mr�El�Hawat or Mr X had gone beyond the yellow line in the course of the fracas then it is possible that one or both might have fallen beneath a train. Trains go through Fairfield station fairly frequently and a train went past thirty seconds after the fight concluded. I considered whether this safety aspect was a consideration that, if taken into account might cause any possible misconduct of Mr El Hawat to be misconduct which justified termination of employment. I concluded that it was not. [24] The circumstances were extraordinary. There is no dispute that Mr El Hawat was attacked. He was not the aggressor in any respect. The conduct of Mr X was verbally abusive and physically violent. Mr�El�Hawat was taken by surprise in the attack. He was justifiably angry at the physical attack. He was obliged to physically defend himself. He was abused racially. His deceased mother’s character was repeatedly abused. I did not think it was necessary for me to consider whether Mr El Hawat was more affected by that conduct than any other member of the Australian community would be. I concluded that Mr X’s remarks were sufficient to outrage any ordinary respectable member of the Australian community. If, in the course of those events Mr El Hawat was provoked into throwing one punch too many after Mr Y intervened, I did not believe that that was a matter that would justify termination of his employment even after taking into account matters of safety. Termination on that ground would, in my opinion, have been harsh, unjust or unreasonable. [25] In making this determination I considered Mr�El�Hawat’s long and good record of employment and his personal circumstances. Mr El Hawat has been employed for 26 years by RailCorp. The only previous disciplinary matter concerning Mr El Hawat involved one matter of conduct which might be characterised as foolish, overly kind or even gallant. It was not a matter that involved matters of conduct within the compass of this application. Mr El Hawat has never worked anywhere but at RailCorp since he has been in Australia. His chances of re-employment at fifty-two, given the circumstances under which he departed RailCorp’s employment would not be good. His skills for employment in other areas would be low. Mr El Hawat has a dependant wife who is unwell and four of his six children are at least partially dependant upon him”. [14] Senior Deputy President Drake found that Mr El Hawat was notified of the reason for the termination of employment and was given an opportunity to respond. Other factors which were considered in relation to the altercation included Mr El Hawat’s personal circumstances, his work history and the circumstances of the attack upon him. The Senior Deputy President determined that reinstatement and an order for the payment of lost remuneration were the appropriate remedies. Appeal principles [15] It is well established that the applicable appeal principles in dealing with the discretionary decisions involved in this matter, are those stated by the High Court in House v R (1936) 55 CLR 499 in the following terms at 504-5: “The manner in which an appeal against an exercise of discretion would be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” The issues involved in the appeal [16] RailCorp submits that Senior Deputy President Drake’s ex-tempore decision and further reasons disclosed appealable error in several respects. These can be summarised as follows: (a) The failure to make a finding that Mr El Hawat’s actions were an attempted punch with a closed fist led Her Honour to understate the seriousness of Mr El Hawat’s actions. (b) The Senior Deputy President erred in finding the time gap of 7-9 seconds, which elapsed between the intervention of the second member of the public and the attempted punch, was “a limited gap” or “not a very long time in the circumstances”. (c) The Senior Deputy President erred in finding that it was not reasonable to expect Mr El Hawat to step back and that only “a particularly calm or saintly person might move away after the intervention of the second member of the public.” (d) The Senior Deputy President erred in finding that Mr El Hawat’s actions in relation to the punch were in self-defence and were “reasonable, necessary and proportionate”. (e) The Senior Deputy President erred in concluding that the safety aspects relevant to any possible misconduct did not mean that the misconduct justified termination of employment. (f) The Senior Deputy President erred in finding that there was no valid reason for the termination and that the termination was harsh, unjust and unreasonable. (g) The Senior Deputy President erred in ordering reinstatement because the conduct of Mr El Hawat militates against reinstatement, especially having regard to safety considerations. These grounds primarily relate to the first basis for the decision of Senior Deputy President Drake that the conduct did not amount to misconduct. There is some overlap with the grounds against this basis for the decision and the second basis for the decision that even if the conduct did amount to misconduct, the termination was nevertheless harsh, unjust and unreasonable. To justify leave to appeal being granted and to succeed in its appeal, RailCorp must address both bases for Her Honour’s decision. Principles regarding violence at the workplace [17] Counsel for Mr El Hawat relied on a line of authorities stemming from the decision of Justice Moore of the Industrial Relations Court of Australia in AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385 at 393, for the proposition that a dismissal arising from a fight in a workplace can be harsh, unjust or unreasonable where the person was acting in self-defence, or was provoked. In relation to the question of whether a valid reason for a termination exists, His Honour said at 392-3: “In my opinion QAL was entitled to both adopt and give effect to a policy that prohibited fighting with the sanction of dismissal if it was breached. QAL’s need to maintain the integrity of the policy constituted, in the circumstances, a valid reason for the termination of both Merrit’s and Sonter’s employment.” His Honour then considered whether such a termination could nevertheless be harsh, unjust or unreasonable. After considering a number of decisions of industrial tribunals, His Honour said: “What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.” Ultimately, His Honour found in the circumstances of that case that the employee who initiated the fight was dismissed for a valid reason and the dismissal was not harsh, unjust or unreasonable. After reviewing the conduct of the other employee, he found that as his conduct went beyond the bounds of force necessary to resist the instigator’s assault, there was also a valid reason for the termination. Despite mitigating personal circumstances, the termination was not harsh, unjust or unreasonable. [18] The applicable legislative provisions have changed since the decision of Justice Moore. Then section 170DE provided that termination must not occur unless there is a valid reason, and a reason is not valid if the termination is harsh, unjust and unreasonable. The current provisions require an assessment of whether there is a valid reason for the termination, as one of the factors in considering, in an overall sense, whether the termination is harsh, unjust or unreasonable. While, for this reason, some care is required in applying the principles in the QAL case, we are of the view that the principles provide assistance in cases of this nature. Extenuating circumstances, such as provocation or self-defence may impact on the conclusion of whether the reason is a valid one. Personal circumstances and work history are properly considered to be other factors which impact on the overall decision as to whether the termination is harsh, unjust or unreasonable. Nevertheless, it must be emphasised that a conclusion in a particular case depends upon the circumstances involved. The application of these principles to particular circumstances is unlikely to be determinative of the result in a different set of circumstances. [19] An important question to be considered in cases of this nature is whether there is a valid reason for the termination, in the sense that the reason is sound, defensible and well founded, on an objective analysis of the relevant facts. In cases such as the present, the employer’s required standards of conduct at the workplace, and policies formulated for safety and operational purposes are often important considerations. [20] The circumstances of this matter did not involve a fight between two employees, but rather a verbal and physical altercation between an employee and a member of the public, arising from an attack by the member of the public at a public railway station. The employee had certain responsibilities which included the safety of the travelling public. In our view, the standards of behaviour of such employees in relation to the safety of members of the public are at least equal to those which can be expected between an employee and fellow employees. The workplace is one where particular care should be taken because of the operation of potentially dangerous equipment, in this case, nearby moving trains. Hence in our view, the principles regarding fights between employees at the workplace should generally be applied. Conclusions [21] Our viewing of the CCTV evidence of the incident between Mr El Hawat and the member of the public leads us to the conclusion that the punch thrown by Mr El Hawat 7-9 seconds after the intervention of the second member of the public was an unnecessarily aggressive and unsafe action. [22] At the time the second member of the public intervened, Mr El Hawat was some 2 to 3 metres away from the door to the station office. The assailant and the second member of the public were further away in a different direction. It appears clear that Mr El Hawat could have, and should have, returned to the control room at that stage, thus bringing an end to the conflict. Indeed, this is what Ms Hall was telling him to do. It appears clear, as conceded by Mr El Hawat in questioning from the Senior Deputy President, that Mr El Hawat lost his temper because of the racial abuse and the subsequent physical assault (transcript PN 234-236). He was surprised and upset by the attack on him. However he should have adopted the “step back” procedure, left the site of the conflict and returned to the safe haven of the station office. [23] In all of these circumstances, we are of the view that the reason for termination relied upon by the employer was sound, defensible and well founded and therefore a valid reason for termination existed. [24] However, such a conclusion must be considered in the context of all of the circumstances and factors. Taking into account all of the circumstances, including the notification to Mr El Hawat of the valid reason and the opportunity given to him to respond, the offensive behaviour of the member of the public, the long and good record of employment of Mr El Hawat and his personal circumstances, we consider the termination of Mr El Hawat’s employment was nevertheless harsh, unjust or unreasonable. [25] We consider that the personal circumstances of Mr El Hawat are very significant factors. Mr El Hawat commenced employment with RailCorp, or its predecessor, shortly after his arrival in Australia in 1977 and has been continuously employed by RailCorp since 1980. He is 52 years of age and has a wife and 4 dependant children. He describes himself as a career railwayman whose skills are not readily transferable to the private sector. [26] In our view, the analysis of the Senior Deputy President, on the alternative basis that the conduct of Mr El Hawat was misconduct but, nonetheless, the termination was harsh, unjust or unreasonable, does not involve any error. All relevant factors were taken into account by Her Honour in reaching the overall conclusion that termination was not an appropriate penalty in all of the circumstances. Further, we are of the view that Her Honour’s decision in relation to the remedy of reinstatement does not involve any error. Mr El Hawat regretted the conduct which led to the termination of his employment. It was an unprecedented and isolated act in over 26 years of satisfactory service. Notwithstanding the potential safety implications that were involved, the circumstances do not lead to the conclusion that reinstatement is inappropriate. [27] It is implicit from our analysis, that we do not agree with the first basis on which the Senior Deputy President found the termination was harsh, unjust or unreasonable. [28] Since we do not consider the Senior Deputy President’s second basis for decision, or the decision on remedy was affected by error, or that RailCorp has established that the matter is of such importance that, in the public interest, leave to appeal should be granted, we decline to grant leave to appeal. BY THE COMMISSION: VICE PRESIDENT Appearances: Mr. D. Lloyd for Rail Corporation New South Wales. Mr. I. Taylor for Mr Abdul El Hawat. Hearing details: 2006. Sydney. 26 September. Printed by authority of the Commonwealth Government Printer Price code C