A rail worker whose refusal to board a train left him stranded in Alice Springs and ultimately led to his sacking has had his unfair dismissal claim determined by the Fair Work Commission.
It was a trip like any other for hospitality worker Nicholas Ward (the Applicant) when he stepped onto the Ghan on Sunday 10 February 2019. The newly minted father of one was an employee for Great Southern Rail, this time working on a six-day trip between Adelaide and Darwin. As normal as everything seemed that Sunday, things took a turn for the worse the following morning. An elderly patron informed Mr Ward that a drunk passenger has accused him (Mr Ward) of making a sexual comment about the drunk passenger’s wife. This allegation was false yet caused Mr Ward significant distress. He grew concerned that such a comment would have a serious impact on his reputation. Ward quickly approached the train’s manager – Mr Smith – who listened to his concerns and assured him that the complaint was not credible, and that management was on his side. Mr Smith’s assessment was that the comment was a ‘non-issue’.
The matter did not resolve there. Mr Ward’s distress grew such that he was unable to sleep the night of the 11th and 12th of February. The stress of the complaint coupled with an unpleasant smell from damp carpet outside his room lead the Applicant to inform his manager that he was unwell. He was permitted to skip his shift and rest on 13 February. The train arrived in Alice Springs on February 14. Mr Ward was given permission to leave the train but told to return in advance of passengers and stay in the immediate vicinity. It was during this time that he called HR and complained of harassment, requesting that instead of returning on the train he be flown back to Adelaide at the Employer’s expense. The Applicant’s manager, Mr Smith, was informed of this argument and approached Mr Ward, requesting that he reembark on the train. He refused, delayed the train’s departure by 10 minutes and was eventually left in Alice Springs. Head office, understandably concerned about Mr Ward’s behavior, paid for one night’s accommodation in the Todd Tavern. Mr Ward sent the following text at 4:02 pm:
200 aboriginals fighting downstairs with three doorman on at all times (reception couldn’t understand why I was sent here) not complaining as it’s Alice Springs but for future reference please don’t send any staff here that you actually like. Thank you for looking after me. Kind Regards Nicholas.
He then called Ms Mathers (the HR manager) and shouted, ‘you will pay for what you have done, you better sleep with one eye open, you are terrible at your job. This is the end to you and the company, everyone at the cocaine tower will come down when they find out what has happened’. Later that evening Mr Ward discovered that his partner and daughter were in hospital. His distress grew, culminating in a text sent to Ms Fantis which read:
This is Skylar [referring to an attached photo]. She spent the night in hospital last night with complications…without her father by her side. I told you I was trying to get back to my newborn daughter but did you give a fuck…you don’t deserve the position you are in… Standby!
Mr Ward then boarded a plane to Adelaide the following day. Upon arrival at the Adelaide terminal Ward discovered text messages that had been sent by his superiors requesting that he meet them immediately upon landing. On seeing the text he fired back a responding text (at 3.18pm):
My daughter will be the first priority. Kind regards Nicholas
He then drove to the Keswick terminal in Adelaide to return his train keys (keys are required to be returned at the end of each trip).
Mr Ward arrived at about 4.30 pm, unannounced. He spoke briefly to Ms Mathers by phone and told her that he was at the terminal to return his train keys. Ms Mathers and Ms Fantis came down to the platform to meet him. Mr Ward was walking towards them in a defiant manner. When he reached them a conversation occurred between Mr Ward and Ms Mathers, witnessed by Ms Fantis (the platform conversation). There is a factual dispute about that conversation. Mr Ward contends that he was dismissed then and there, however his employer disagreed, arguing that the dismissal did not take effect at that time.
Matters for consideration
The Fair Work Commission had to decide whether the termination had occurred on the platform or on a later date. Simply put, whether or not Mr Ward was unfairly dismissed would depend on the Commission’s ruling. If he had in fact been dismissed on the platform there would have been no process, no opportunity to respond and no right to a support person; the dismissal would very likely be ruled unfair.
Great Southern Railways tendered persuasive evidence to aid their arguments. They showed correspondence between the company and Mr Ward, specifically their requests for him to attend a show cause meeting and an attached notice to attend which outlined allegations. The correspondence even showed the organisation’s willingness to reschedule the meeting at Mr Ward’s behest, however, he ultimately failed to attend the meeting.
Deputy President Anderson of the Commission ruled in favour of Great Southern Railways. In particular, the Deputy President referred to the following text-message exchange:
Mr Ward: Hi Nicole can I please have my termination letter, I haven’t received one since being fired by you on the platform. It’s needed for unemployment. Kind Regards Nicholas Ward”
Ms Mathers: Hi Nick as per our conversation on the platform and the notice to meet letter you have been stood down pending our investigation. Your employment has not been terminated. Please give me a call so we can discuss. Kind regards Nicole”
Mr Ward: Now your [sic] just lying Nicole…which proves why I told you I didn’t want a meeting without representation. You do this and you are no different to a thief or any other criminal. I have a 5 week old baby, you told me I was fired, not you might be fired!!
Ms Mathers: Nick give me a call so we can discuss
The Commission concluded that the correct procedure had been followed. Furthermore, the refusal to board the train and the Applicant’s use of threatening and abusive language amounted to a valid reason for dismissal. Mr Ward’s unfair dismissal claim was therefore dismissed.
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