Tranz Rail firing backed by landmark ruling

By Ray Lilley

Friday 21st July 2000

Tranz Rail's attention to workplace safety, under challenge by the unions, has been backed in a landmark Employment Tribunal ruling.

The tribunal decision slates the union for the legal tactics it used to try to have a worker reinstated after he was sacked for a serious breach of safety regulations.

Tribunal adjudicator Richard Hall ruled Tranz Rail's dismissal was justified after the worker caused a collision between two pieces of track machinery.

The collision caused $34,000 in damage as well as injuring a fellow worker.

The second mishap caused by the track worker in three months, came after safety training, a formal reprimand and a written warning that no repeat of the first incident should occur.

When the worker was sacked after the second smash, the union claimed he was dismissed without substantive justification and that Tranz Rail was guilty of procedural defects.

The ruling from the tribunal upholds the company's procedure for sacking the worker as fair and reasonable, while noting the union "challenge[d] or put in issue as many matters as possible and some issues that ... were of little merit."

Mr Hall said the union's approach resulted in a 938-page transcript, nine days of hearing before the tribunal, as well as Employment and Appeal Court time, and left the worker "dangling" without a resolution of the issue for a year.

Tranz Rail said the ruling upheld its right to insist that safety codes designed to protect workers be adhered to.

It had made it clear breaches of company safety codes meant the worker involved was likely to lose his job in the interests of protecting everyone's safety.

The tribunal dismissed claims by the union the Maori worker concerned was unfairly treated by the procedures used because Tranz Rail had insufficient regard to "cultural sensitivities and cultural differences."

"I firmly conclude this claim has no merit," Mr Hall said.

"It seems to me that [Tranz] Rail has gone out of its way to cater for Maori sensitivities and cultural differences."

It also found there was no disparity in the treatment for the sacked worker compared with cases of workers involved in other similar incidents.

The worker had had his attention drawn to the safe following distances for track machinery just three months before the crash, when he was responsible for a similar but less dangerous accident.

The ruling found Tranz Rail was procedurally fair in that it:

gave the worker clear notice of the offence and the severity with which it was viewed;
gave him more than adequate opportunity to explain, with competent, experienced representation in attendance;
only reached the decision to dismiss the worker with great reluctance.

"The decision to dismiss was arrived at by fair process. I reach this conclusion with no hesitancy."

The tribunal said the worker was experienced, well aware of safety requirements, of the seriousness of his responsibilities "and he did not meet them."

The company said the decision involved a huge issue of support for its safety standards.

"I am relieved to see the company's efforts to maintain high standards in pursuit of safety were supported through this decision," Tranz Rail counsel Phillip Green said.

The government has set up a formal inquiry into Tranz Rail's safety procedures after five workers died in a little over a year in shunting- yard accidents.

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