Australia: Tram Conductor Reinstated After Being Dismissed for Assaulting a Passenger
Workplace Relations Update

In a recent unfair dismissal application, Fair Work Australia (FWA) has reinstated a tram conductor and ordered his employer pay six months back pay after an altercation with a passenger who was preventing a tram from leaving a platform.

The decision of Peter Kidd v TransAdelaide [2010] FWA 2580 has important considerations for all employers investigating acts of employee misconduct.

The incident

The incident that led to the tram conductor's employment being terminated by TransAdelaide was sparked when the conductor became involved in an altercation with two youths. As the tram was attempting to leave the platform, the first youth stood in the door way deliberately preventing the door from closing while the other youth stood outside on the platform. When the conductor asked the first youth to move from the doorway the second youth began verbally abusing the conductor.

TransAdelaide's policy was that when faced with verbal and or physical abuse from a passenger the conductor must back away from the incident and call the police.

However the conductor confronted the first youth obstructing the doorway and pushed the first youth. The contact was enough to move the first youth 'rapidly' across to the other side of the tram.

Both of the youths then violently assaulted the conductor by kicking him while he lay on the floor of the tram. Once the youths finished assaulting the conductor they ran from the tram. The conductor then, 'in a dazed state', chased after them where the youths again assaulted him.

The conductor was taken to hospital where he was treated for head trauma and minor hand and leg injuries.

TransAdelaide's investigation

TransAdelaide began investigating the incident and in the initial interview the conductor failed to mention that he had pushed the first youth. Upon reviewing the CCTV footage TransAdelaide discovered that it appeared that the conductor had pushed the first youth.

When shown the footage by TransAdelaide, the conductor admitted that he had pushed the first youth and that he should have walked away but that he did not remember the incident.

After conducting a full disciplinary hearing, the conductor's employment was terminated on the grounds that he had pushed the first youth and that he had not reported the incident.

The hearing

In hearing the matter, FWA stated that the conductor should have handled the situation differently and that his approach amounted to misconduct.

However FWA found that there were mitigating circumstances including the provocation by the youths. In addition, there was a 'strong element of reaction to the circumstances', including the youths abusing the conductor and ignoring his directions.

FWA accepted medical evidence that the conductor suffered head trauma and did not remember the incident and therefore when he did not mention that he had pushed the youth he had not sought to mislead TransAdelaide.

FWA held that when all the circumstances were taken into account the dismissal was disproportionate. FWA also stated that the conduct by the conductor was a 'one off' and unlikely to happen again.

FWA ordered that TransAdelaide reinstate the conductor and that TransAdelaide pay the conductor for the six months between his dismissal and his return to work.

Key lessons for employers

When deciding whether to take disciplinary action after an investigation into misconduct, employers should ensure that all relevant factors are taken into account, including:

• the degree to which an employee was provoked
• the likelihood of the employee re-engaging in the misconduct
• any reasonable justification for the employee's actions or failures.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.