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Wednesday 15th July 2015
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Is this why you were late to work
this morning?
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In today's Workplace Bulletin:
- Why a Yarra Tram driver was fired for "deliberately driving slow" – and why procedural fairness matters
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Dear Reader,
If you travel by public transport, you've undoubtedly experienced some infuriating delays from time to time – whether it's tram, train or bus.
Sometimes, as you watch the minutes slip past, you might even indulge in a spot of paranoid fantasy – "I think they're doing this on purpose! They're deliberately going slowly!"
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So you might feel vindicated to learn that last year, Yarra Trams in Melbourne dismissed one of their drivers for serious misconduct, responding to allegations he had deliberately driven slowly to delay the tram service.
But don't leap out of your seat and say "I told you so!" just yet. After the dismissal, Yarra Trams had their misconduct and investigation process put under the microscope before the Fair Work Commission – and on this occasion, it came up badly short.
What sparked the dismissal?
The driver, a Mr Langdale, had been employed as a tram driver since 1987. He had previously received a final warning for his trams running late in October 2003.
Between August 2013 and June 2014, Mr Langdale's team manager received complaints and made observations of Mr Langdale's performance.
She then prepared a report which concluded that Mr Langdale was deliberately "dragging the road" and delaying services, which formed the basis of the decision to dismiss him. |
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Why was he deliberately driving slowly?
That's a good question – one the FWC tried to answer, to no avail.
Although Commissioner Julius Roe was satisfied from Yarra Trams' data that there had been several instances where Mr Langdale's performance in keeping time was below-par, this was not the same as finding that he had ever deliberately "dragged the road".
Neither could Commissioner Roe see where Mr Langdale could have gained any advantage from running late by somehow working less.
In fact, he observed a delayed tram tends to mean more stress and lost time for the driver.
This isn't to say that consistent slow driving is something anyone wants to see tram drivers (or other public transport employees) doing – but if a driver isn't deliberatelydoing something in breach of lawful and reasonable instructions, then you're not talking about serious misconduct anymore.
You might be talking about a performance issue instead – the problem was, that's not how Yarra Trams opted to treat it.
Putting the employee on the spot
Even in treating Mr Langdale's slow driving as a performance issue, there were real problems with how his employer had handled the matter.
The many individual allegations that gave rise to a finding of misconduct in the workplace investigation were not put to Mr Langdale until several months after they'd happened, and were only read out to him at his investigation meeting. He was not allowed to read the report himself.
That's a lot of complex information to respond to in one sitting – so it's no surprise that Mr Langdale conceded that Yarra Trams' data on his running times must be correct.
However, the FWC held that an admission that he had run late sometimes was not the same as an admission that he had deliberately slowed down trams. Accordingly, there was no valid reason for his dismissal.
Furthermore, Commissioner Roe found that Yarra Trams had not complied with its own disciplinary policy – which stated that disciplinary procedures should be commenced and concluded as soon as possible following the alleged incident(s), and that employees could appeal a disciplinary decision.
Getting it wrong in public
You can imagine the pressure a transport operator like Yarra Trams faces. If it doesn't meet the targets the State Government sets for it, it gets penalised.
And then there's the ire of local media – not to mention commuters themselves – many of whom take to Twitter and Facebook to highlight poor driver performance or behaviour.
Under these watchful eyes, it's not surprising that Yarra Trams leapt into action to deal with perceived misconduct.
But the FWC concluded that the procedural fairness in this case was so deficient that even if there had been a valid reason to dismiss Mr Langdale – like dragging the road – the dismissal would have still been unfair and harsh.
Jog my memory on procedural fairness?
It's impossible to offer an absolute one-size-fits all definition of what procedural fairness will amount to in every situation.
But I think that in his Managing Misconduct e -book, Employment Law Practical Handbook Editor-in-Chief Charles Power offers an apt general description:
"Procedural fairness, in relation to misconduct, requires a fair and proper procedure to be applied when handling allegations of misconduct. It requires:
- Decisions to be made based on rules known to the employee;
- The accused employee being treated equally and free from bias;
- The right of the accused to present his views and evidence, and to have these taken into account before a final decision is made."
In practice, Charles's definition will almost always involve:
- Raising allegations on a timely basis, and investigating them promptly;
- Meeting with an employee to discuss allegations, and allowing them reasonable opportunity to respond to those allegations;
- Accurate and consistent documentation of all aspects of the procedure;
- And – though it might seem obvious – ensuring that the facts that gave rise to the investigation are substantiated.
Sometimes the only way to put up with a late tram, train or bus (or traffic in general) is patience. Looking back on a case like this, the principle is similar with workplace investigations.
Approach the situation in a calm, measured way. Distinguish what is a performance issue and what is genuine misconduct. And don't let the basics of procedural fairness get lost in the rush.
Or the process will become longer and more time-consuming than you ever anticipated…
Until next time,
Joseph Nunweek
Editor, Workplace Bulletin |
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