A speeding train driver who accidentally abandoned his co-driver during a toilet break will be reinstated by Pacific National, the Fair Work Commission has ordered.
Peter White, a driver with Pacific National, was dismissed in February following an eventful trip between Broken Hill and Parkes on November 24 last year.
White and his co-driver, Mel Burton, had left Broken Hill roughly 85 minutes late due to a lengthy service delay. The pair experienced another delay at Darnick and then a short wait on a crossing loop in Ivanhoe.
An hour out from Parkes, White stopped the train to inspect what he thought was smoke coming from the rear of the locomotive.
Deciding it was merely dust, he began the four-minute process of releasing the train brakes for departure.
It was then that Burton told him she was going for a toilet break.
White thought Burton was going to use the on-board toilet, accessed via a metre-long external footplate (with a handrail).
But Burton got off the train for her toilet break, and White – oblivious – continued to release the brakes, and drove away.
White drove the train for several minutes before realising Burton was not on board.
After stopping 11km down the railway at Yarrabandai, White contacted authorities. He was relieved by a new train crew and reunited with Burton a short while later.
In reviewing the data logger from the journey, Pacific National found White and Burton’s train had averaged 86km/h, and had peaked at 98km/h during its journey, despite an ARTC-ordered speed limit of 80km/h.
The operator rejected the idea White was pressured into speeding due to the delays to his schedule, saying no driver had ever been disciplined for being late due to delays.
Following a formal investigation and review, Pacific National sacked White in February this year. Burton was stood down temporarily, then returned to duties in a demoted role. She resigned in April.
In sacking White – a Driver Trainer who Pacific National expected to be the gold standard for safe driving – the company found he had “demonstrated a reckless violation of a number Pacific National’s policies and procedures” during the journey.
White took the case to the Fair Work Commission, filing for unfair dismissal.
He argued that Burton – a fully qualified driver in her own right – was responsible for watching the speedometer during the journey as part of her role as co-driver.
White said Burton did not warn him of his consistently high speed at any point.
He said he drove the train ‘by feel’, and was genuinely unaware of his speeding throughout the journey.
As for the other charge, White’s counsel argued his assumption that Burton was still on board the train was a fair and reasonable one to make.
White acknowledged to the Commission he should not have driven the train without knowing precisely where his co-driver was, and said he regretted making that decision.
But he and his counsel contended to the Commission that the factors, taken together, did not warrant an immediate termination.
Moreover, White’s counsel said his clear safety record through the first 9½ years of work with Pacific National meant the speeding event should be treated as a ‘one-off’ error, and should not result in termination.
Pacific National argued that despite the clean prior record, the safety breaches in this case were significant enough to warrant termination.
The company said a demotion was out of the question, as it would still leave White driving trains – a duty the operator felt it could no longer trust him to do safely.
Findings of the Fair Work Commission
FWC Deputy President PJ Sams essentially broke the case down into two components: the leaving of Burton beside the railway, and the speeding.
He agreed with Pacific National, saying the speeding alone would usually be a dismissible offence, but he rejected it in this case, due to “mitigating factors,” primarily that Burton was “equally culpable” for the events, but was not given the same punishment.
“In my view, Ms Burton was at least as culpable as the applicant for the speeding train due to her failure to alert him, at any point, that he was speeding,” the Fair Work judge said. “She was a fully qualified driver and was seated directly in front of the panel, which included the train’s speedometer.
“There was no suggestion, let alone evidence, offered by [Pacific National], that Ms Burton had told the applicant he was speeding. I accept [White’s] evidence that she had not. This was an essential, if not the primary duty of a co-driver in these circumstances.
“Ms Burton, of course, was not dismissed.”
As for leaving Burton beside the railway: Deputy President Sams found White was again not as much to blame as Pacific National suggested.
The company claimed that if indeed White thought Burton was moving to or from the on-board toilet, then he should have stopped the train anyway.
But Sams found the rules Pacific National was referring to applied during shunting operations, and not during standard motion.
“[Pacific National’s case] might have appeared to be logical if it had not emerged in the evidence, that the [cited policies] had not even applied to the incident involving [White] and Ms Burton,” Sams said.
“[Pacific National representatives at the Fair Work hearing] conceded, properly in my view, that the policy could not have applied to the incident because the shunting policy does not apply to ‘through’ train movements.”
He continued: “If it is accepted – as it surely must be – that, firstly, [White] was unaware that Ms Burton had left the train and, secondly, it was a common practice for employees to go to the toilet while the train is in motion, then it is difficult to understand how [Pacific National] came to the view that [White] was in breach of its Health and Safety Policy and Code of Conduct.
“It is an even longer ‘bow to draw’ to submit that the applicant was in ‘reckless violation’ of the policies. The word, ‘Reckless’ is defined in the Macquarie Dictionary as ‘utterly careless of the consequences of action’.
“I reject such a characterisation of this conduct.”
Sams also took issue with what he believed was a major flaw in the rail company’s investigation.
White reported Burton had told him, “I’m going for a pee.” When she was interviewed after the incident by Pacific National, she recalled: “I said to him that I was getting off the locomotive to go to the toilet”.
But in the official investigators’ report compiled by Pacific National, Burton was quoted to have said: “I’m going to the toilet, don’t leave without me”.
“Incredibly, neither these words, nor anything like them in the second part of the quote (‘Don’t leave without me’), were never said by Ms Burton in either of her interviews,” Sams found.
“How did they come to appear in the official investigator’s report? … these fictitious words distorted the report, such as to convey the negative impression that the applicant knew Ms Burton had left the train, and deliberately started the train and left without her.”
Sams described the error as “a critical one,” which may have swayed the decision to terminate White – a decision, Sam said, which had therefore been “miscarried, and cannot be allowed to stand”.
The FWC deputy president said White should be reinstated within 21 days the order, which was handed down on October 30.
He also ordered White be given 30% of his lost earnings since he was sacked at the start of the year.
Read the full decision here: https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC7466.htm