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  FWA
2580 has important considerations for all employers investigating
acts of employee misconduct.
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
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 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
In hearing the matter, FWA stated that the conductor should have
handled the situation differently and that his approach amounted to
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
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
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
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
any reasonable justification for the employee's actions or
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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