Supreme Court Shunter dismissed after derailment gets $684

Press, 19 August 1978, Page 4

Supreme Court Shunter dismissed after derailment gets $684

A shunter, dismissed after, a serious derailment in the Middleton railway yards — which caused many thousands of dollars of damage in July, 1974 — has been awarded $684 back pay in a claim against the Railways Department. A reserved judgment was given by Mr Justice Roper in tfie Supreme Court in Christchurch yesterday. The shunter, William Barry Orchard Laing, of the New City Hotel, originally claimed $5003 from the department for wages he alleged were unlawfully withheld between July 11, 1974, and May 10, 1975. When the hearing began the amount of the claim was reduced to $l3Ol.

Mr L. M. Greig, of Wellington, appeared for Laing; and Mr N. W. Williamson, for the Attorney-General who was sued on behalf of the Railways Department, which denied liability. His Honour said that the facts were not in dispute. Laing started work with the Railways in 1962 and on July 11, 1974, was a senior shunter when a serious derailment occurred at the Middleton yards. Laing was dismissed on the ground that the derailment was caused by his misconduct.

Laing appealed against his dismissal to the Government Railways Appeal Board, which gave its decision in September, 1974. In the course of that decision the board said; “In fairness to the punishment board which recommended the dismissal and to the General Manager who imposed the penalty recommended on the evidence which we understand was before them, their decision to dismiss Laing is understandable and possibly correct. We need not express any view on that. “The derailment could have involved loss of life. It did

involve considerable damage and disruption. It would have been difficult for us’to come to a different decision had we before us only the evidence which was before them." His Honour said that the matter was obviously given the most careful consideration by the appeal board, which visited the scene of the derailment and reheard the evidence, which included evidence not given before the punishment board. The appeal board concluded that the derailment had been caused by Laing’s misconduct, and said: “On these findings, serious though the derailment was, we feel in the circumstances of the case that a more appropriate penalty would be a reduction in status by removing Laing from operating duties. The appeal will be allowed to this extent.” On September 24, 1974, the General Manager of Railways (Mr T. M. Small) wrote to Laing informing him that he had been reduced in status to labourer and removed from operating duties and transferred to the works depot at Addington. On September 30, Laing took up that position and remained in it until May 10,

1975, when he was reinstated as a senior shunter. He now claimed $993 for loss of wages at a senior shunter’s rates from July 11, to September 30, 1974, when he received no pay; and $307 for the period between September 30, 1974, to May 10, 1975.

During the later period Laing was paid at a labourer’s rate but now claimed that in the light of the appeal board’s decision he should have been paid, although working as a labourer, at senior shunter’s rates. He also claimed interest. His Honour held that Laing was paid the correct rate for the period between September 30, 1974, to May 10, 1975. The question as to whether Laing should ■ be paid for the time between July 11 and September 30, 1974, when he received no pay raised rather more difficult problems. There appeared to be nothing in the act or the legulation which covered the position, his Honour said. He agreed with Mr Williamson that it seemed curious, and was certainly contrary to the ordinary law of contract, that a man should receive pay for a period when he did not work, but the effect of the appeal board’s

decision was that on fuller inquiry the circumstances did not justify dismissal. It was submitted by Mr Williamson that to recover pay for this period Laing should have sued for wrongful dismissal, but that course would hardly be appropriate when Laing had the right of appeal against dismissal.

Although there was nothing in the act or regulations which covered the situation, his Honour said, he agreed with Mr Greig that regulation 130 provided some assistance. It dealt with suspension and provided: “No employee shall be paid any salary or wages in respect of any period for which he is under suspension unless the General Manager is satisfied after investigation that the employee was not guilty of action or conduct warranting suspension.”

Concluding his judgment, his Honour said: “In the present case the appeal board concluded that Laing’s conduct did not warrant dismissal, and as a matter of justice I can see no reason why he should be in a less favourable position than one who had been suspended.”

He made no order on Laing’s claim for payment of interest.