HEARING OUTCOME
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Click the > below to start the audio of this Hearing Outcome.
Click the > below to start the audio of this Hearing Outcome.
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(ST 392). ST sums up the events, but warns that if other failed to follow what TPE call the correct procedures for reporting defects then they must face the same charges, but we all know that will not happen, because the only issue on the mind of TPE was to get rid of Webb.
EQUITY means nothing.
(ST 392). ST sums up the events, but warns that if other failed to follow what TPE call the correct procedures for reporting defects then they must face the same charges, but we all know that will not happen, because the only issue on the mind of TPE was to get rid of Webb.
EQUITY means nothing.
_MA points out what he describes as a medical opinion which says there is no reason I couldn't attend today. On reading the medical opinion how could any person who is suffering from, “clear evidence of anxiety and depression”, who requires medication or counseling or possibly both in order to help me over these difficulties, be able to do themselves justice. I was at a distinct disadvantage.
Also MA said that he believes I had adequate notice to attend the medical and reckons I made a concerted decision not to bother, even though I had a contractual obligation to do so, even though I was clearly not in the right state of mind and as for the so called contractual obligation, I had absolutely no idea about this. Amazingly however MA reinstated my sick pay because the medical evidence showed the state of my welfare and the reason for being absent? I was not absent, I was covered by doctor`s notes and these doctors had come to the same conclusion about my medical condition as the BUPA doctor.
CHARGE 1:
(MA 395) MA “It is my belief that this charge is proven that on the day in question you did fail to follow the correct procedure. The unit stayed in service was putting the safety of staff on the railway at risk”.
I ask anyone out there reading the above, especially if you have read all of this hearing. I distinctly said from day one, that this warning horn failure was a partial failure, I told Route Driver Manager Mark Atkinson this from the very beginning of my hearing. So, I ask you, Mark Atkinson, how can the charge be proven if you are finding me guilty on the wrong set of procedures?
As for the unit staying in service was putting the safety of staff on the railway at risk, if I had informed TPE control of this partial failure - warning horn fault, they would have adopted the procedure found in their (DOTE) Defective On Train Equipment contingency plans, this states that the train can stay in service and run at line speed. Furthermore after arrival at York the cab I was in became out of use and the train was driven from the rear cab.
Therefore this train would have run regardless. There is also the knowledge that no other driver on that day had a problem with the warning horn, MA knew this, he was also aware of the DOTE contingency plans. Therefore his statement shows that the DOTE contingency plans are wrong, allowing to run a train with a partial defect is putting people`s lives at risk. So the question is now, what has he done about this? Remembering what part 4 of his job description states, “That any unsafe activity is immediately stopped and prevented from continuing until adequate measures have been taken to reduce the risk associated with that activity to as low as reasonably practicable”.
When I think how many trains I have run because this DOTE contingency plans allows them to run and how many other driver`s have ran their trains then who really is putting the whole of the railway at risk? The answer is obvious, TPE & Siemens, especially as they openly admit, that “since introduction”, they have been aware of this problem. Should charge 1 in the first place have been a gross misconduct charge?
Guilty of gross misconduct for failing to follow the correct procedure, the procedure I allegedly did not follow, as cited by MA (MA 16 & 18) at the beginning of this hearing is as follows.
1. “You didn`t stop and report it at the controlling signaler”.
2. “You didn`t report it to the train operating company control”.
3. “At no point did you reduce the train speed”.
4. “You didn`t complete the repair book procedure correctly”.
The procedure that MA charged me with was not any known rule book procedure, but a cut and paste attempt to make charges fit. It vaguely resembles the procedure for reporting a complete failure of the warning horn. The reason why MA was so unsure of what procedure I never followed is because the charge is extremely vague and not specific to any breach of the rule book and also MA couldn`t find any information from the investigation notes to point out whether the horn failure was a complete or partial failure. He decided on the worst case scenario for me.I never once stated that the warning horn was a complete failure and said all along that I treated it as a partial failure of the warning horn. How could he make such a glaring error? How could he have had, even a reasonable belief in what I did was wrong? Whatever belief he had, was on the wrong set of facts.
CHARGE 2
(MA 395) MA “The failure to follow the correct reporting procedure for reporting a near miss. It is my belief that this is proven because the whole incident was a premeditated fabrication”. “You clearly failed to follow the correct process for following and reporting a near miss, when the fault came to light, the train was taken out of service for investigation and repair”. “I am also disturbed by your admittance of previous events and a lack of remorse shown in this hearing over this one which fails to convince me that the fabrication will stop. I`m also concerned that you freely admit to fabricating previous reports and it disturbs me to think of how much of your reporting is truthful and it’s not just a way of getting attention in these matters”. I will break this down and address each issue.
MA “It is my belief that this is proven because the whole incident was a premeditated fabrication”. I never once admitted or mentioned that my actions on that day were premeditated, even the investigating officer could only say, “possibly a premeditated act”. MA again, is wrong in his assumption, it was not a premeditated act, therefore his belief, that what I did, in other words, my guilt, was in his mind based upon premeditation, that is totally misguided.
MA, second part, “You clearly failed to follow the correct process for following and reporting a near miss”. Firstly, where can the procedure for reporting a near miss be found? How can I follow any type of procedure when I clearly stated in the very first interview, “that he had NOT had a near miss”. There was no procedure to follow, because there was no near miss. If there had been a procedure to follow then I do not know where it is and this is despite many requests for it, TPE never produced it, remember when I requested it, Miss Pears said firstly it was in the rule book and then it was apparently in the Train Driving Competence Standards Booklet, (SC1). Again all of this information was available in the investigation report and mentioned to MA during my hearing, how can I clearly fail to follow this procedure? On this issue MA made a decision on something that again is not factual.
MA third part, “when the fault came to light, the train was taken out of service for investigation and repair”. This train was never taken out of service, it remained in service till its booked time. There was 3 faults that required attention. Repairs were carried out on the door (noise) and on the wipers, the warning horn got the usual, tested on depot, no fault found.
Also MA said that he believes I had adequate notice to attend the medical and reckons I made a concerted decision not to bother, even though I had a contractual obligation to do so, even though I was clearly not in the right state of mind and as for the so called contractual obligation, I had absolutely no idea about this. Amazingly however MA reinstated my sick pay because the medical evidence showed the state of my welfare and the reason for being absent? I was not absent, I was covered by doctor`s notes and these doctors had come to the same conclusion about my medical condition as the BUPA doctor.
CHARGE 1:
(MA 395) MA “It is my belief that this charge is proven that on the day in question you did fail to follow the correct procedure. The unit stayed in service was putting the safety of staff on the railway at risk”.
I ask anyone out there reading the above, especially if you have read all of this hearing. I distinctly said from day one, that this warning horn failure was a partial failure, I told Route Driver Manager Mark Atkinson this from the very beginning of my hearing. So, I ask you, Mark Atkinson, how can the charge be proven if you are finding me guilty on the wrong set of procedures?
As for the unit staying in service was putting the safety of staff on the railway at risk, if I had informed TPE control of this partial failure - warning horn fault, they would have adopted the procedure found in their (DOTE) Defective On Train Equipment contingency plans, this states that the train can stay in service and run at line speed. Furthermore after arrival at York the cab I was in became out of use and the train was driven from the rear cab.
Therefore this train would have run regardless. There is also the knowledge that no other driver on that day had a problem with the warning horn, MA knew this, he was also aware of the DOTE contingency plans. Therefore his statement shows that the DOTE contingency plans are wrong, allowing to run a train with a partial defect is putting people`s lives at risk. So the question is now, what has he done about this? Remembering what part 4 of his job description states, “That any unsafe activity is immediately stopped and prevented from continuing until adequate measures have been taken to reduce the risk associated with that activity to as low as reasonably practicable”.
When I think how many trains I have run because this DOTE contingency plans allows them to run and how many other driver`s have ran their trains then who really is putting the whole of the railway at risk? The answer is obvious, TPE & Siemens, especially as they openly admit, that “since introduction”, they have been aware of this problem. Should charge 1 in the first place have been a gross misconduct charge?
Guilty of gross misconduct for failing to follow the correct procedure, the procedure I allegedly did not follow, as cited by MA (MA 16 & 18) at the beginning of this hearing is as follows.
1. “You didn`t stop and report it at the controlling signaler”.
2. “You didn`t report it to the train operating company control”.
3. “At no point did you reduce the train speed”.
4. “You didn`t complete the repair book procedure correctly”.
The procedure that MA charged me with was not any known rule book procedure, but a cut and paste attempt to make charges fit. It vaguely resembles the procedure for reporting a complete failure of the warning horn. The reason why MA was so unsure of what procedure I never followed is because the charge is extremely vague and not specific to any breach of the rule book and also MA couldn`t find any information from the investigation notes to point out whether the horn failure was a complete or partial failure. He decided on the worst case scenario for me.I never once stated that the warning horn was a complete failure and said all along that I treated it as a partial failure of the warning horn. How could he make such a glaring error? How could he have had, even a reasonable belief in what I did was wrong? Whatever belief he had, was on the wrong set of facts.
CHARGE 2
(MA 395) MA “The failure to follow the correct reporting procedure for reporting a near miss. It is my belief that this is proven because the whole incident was a premeditated fabrication”. “You clearly failed to follow the correct process for following and reporting a near miss, when the fault came to light, the train was taken out of service for investigation and repair”. “I am also disturbed by your admittance of previous events and a lack of remorse shown in this hearing over this one which fails to convince me that the fabrication will stop. I`m also concerned that you freely admit to fabricating previous reports and it disturbs me to think of how much of your reporting is truthful and it’s not just a way of getting attention in these matters”. I will break this down and address each issue.
MA “It is my belief that this is proven because the whole incident was a premeditated fabrication”. I never once admitted or mentioned that my actions on that day were premeditated, even the investigating officer could only say, “possibly a premeditated act”. MA again, is wrong in his assumption, it was not a premeditated act, therefore his belief, that what I did, in other words, my guilt, was in his mind based upon premeditation, that is totally misguided.
MA, second part, “You clearly failed to follow the correct process for following and reporting a near miss”. Firstly, where can the procedure for reporting a near miss be found? How can I follow any type of procedure when I clearly stated in the very first interview, “that he had NOT had a near miss”. There was no procedure to follow, because there was no near miss. If there had been a procedure to follow then I do not know where it is and this is despite many requests for it, TPE never produced it, remember when I requested it, Miss Pears said firstly it was in the rule book and then it was apparently in the Train Driving Competence Standards Booklet, (SC1). Again all of this information was available in the investigation report and mentioned to MA during my hearing, how can I clearly fail to follow this procedure? On this issue MA made a decision on something that again is not factual.
MA third part, “when the fault came to light, the train was taken out of service for investigation and repair”. This train was never taken out of service, it remained in service till its booked time. There was 3 faults that required attention. Repairs were carried out on the door (noise) and on the wipers, the warning horn got the usual, tested on depot, no fault found.
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MA lastly stated, “I am also disturbed by your admittance of previous
events and a lack of remorse shown in this hearing over this one which fails to
convince me that the fabrication will stop. I`m also concerned that you freely
admit to fabricating
previous reports and it disturbs me to think of how much of your reporting is
truthful and it’s not just a way of getting attention in these matters”.
There are 8 passages in the hearing that MA is obviously referring to. Before I deal with them I would like to point out my state of mind that day and what I considered to be a very aggressive attitude of MA. Therefore how I came across was interpreted by MA the wrong way. Also it was and never has been about getting attention to me, I only wanted the issues I raised to get attention, attention in the context of discussion however would have been nice.
(PW 36)“I`ve done it previously and you never pulled me on it. I`ve done it when it comes to a point that I`ve been ignored and ignored and ignored”. It did not sound well, but It was aimed at the way I behaved that day, it was how I always behaved faced with that type of fault. The only near miss report in my file is one dating back to 2005, I reported this via the signaler and my train remained in service, units are not taken out of service for a near miss. I am quite sure that if I had previously fabricated a near miss I would have been jumped upon.
(PW 186) “Yes, I put my hands up immediately straight away and told them exactly what I did and why and I`ve done that previously”. Meaning always readily admitted each time I was interviewed that the near miss was a fabrication.
(PW 201) “Yes, I`ve done this type of thing before, but it never”. My answer was a referral to charge 1, the way I dealt with the defective warning horn that day was the same as any other day. But MA kept interrupting me and was really aggressive.
(PW 343) “As I say, I have done these type of things previously, I`ve not even had a warning. It’s not the first time”. Meaning, behaviour on the day in question, not informing control. But also by reporting using a scenario situation or referring to the hazards.
(PW 345). “Mark, I`m the only driver at York that’s got two boxes over at Tanner Row, two boxes because I`m the one that puts most reports in. Previously health and safety rep, if you take time to go through them boxes you will find numerous occasions when I`ve done the same as this. I`ve never had much as a verbal or written warning about it. I`ve been spoken to but it’s never been classed as a verbal warning and I`ve never had a written warning about my reports”. Meaning, wrote so many reports on warning horn, noise and wiper failures that if investigated would have shown that maybe the procedures were not followed to the rule book.
(PW 358). “I`ve done this previously and I didn`t see any where wrong for what I was doing. If I had been jumped on previously maybe I would have reacted differently”. Meaning, the simple failure to report to control and fax the repair slip off. It was a common occurrence, every driver was guilty of this.
(PW 365). “It was my way of reporting faults”. Meaning, strong worded reports, not fabricated reports.
(PW 376). “You know that I am the type of person that has done this before, if I were jumped on before and warned and we come to an understanding then this would never have happened”. Meaning, at the time, I was trying to show MA some previous reports, showing my concerns for these very issues, they show that I never informed control, yet even though TPE had these, no manager came to me and let me know I was not supposedly doing the right thing. Although the comments state that I have done it before, I never once said that I have previously fabricated any reports.
Some other pointers surrounding these charges, what did MA want me to show “remorse” over? “And it’s not just a way of getting attention in these matters”. What chance would I have of getting any attention? History proves beyond any reasonable doubt that I didn`t stand a chance of getting attention, every previous report had been ignored. I did want attention, attention to serious health and safety issues, and if I had got attention we wouldn’t be here now.
CHARGE 3
MA Failure to follow the correct procedure for reporting unit defects. “It is my belief that this issue was covered in charge one as you represented Steve and I will withdraw it on this occasion”.
There were 3 faults, 2 of these differ from the warning horn, are these not important? Is it only a reporting procedure on a warning horn that warrants a “Gross Misconduct” charge? Because that is what this is saying. It also shows that this was never a gross misconduct charge. MA never went over this charge in this hearing, he completely forgot about it.
Furthermore MA States, “My view is the relationship between FTPE and yourself has irrevocably broken down to the effect that you have deemed it necessary to sit there and promote the fact that you falsify reports in relation to this incident, and have done previously. With regard to this, it is my decision today to summarily dismiss you from service with immediate effect”.
I have never falsified any reports in relation to that incident or any other incidents. I would like to say that this has been used by TPE as an add on to try and justify their decision to dismiss me, this was not what their original charges charged me with. I CHALLENGE them to show any reports that they think have been, or likely to have been, fabricated in relation to that incident. Yet MA dismissed evidence I tried to show him from before this incident, but he uses what he thinks is useful to him from previous events. Here are parts from the hearing which prove exactly this.
1. (MA 20) “I am not interested in previously”.
2. (PW 164) where I attempt to show MA a previous report, his response is (MA 173) “I understand what your saying, this in relation to this incident is separate, like you say is previous”.
3. (MA 310) “I know what you are saying for the range of reports for previous and all this, I am only reading into the context of this because this is the one I know about”.
4. (PW 311) “But its relevant Mark, its evidence”.
5. (MA 312) “I understand that”.
6. (PW 313) “Ignorance”.
7. (MA 339) “Well I can`t comment before the event can I? I can only go on what I have seen post this”.
8. (PW 374) “Would you like to look through some of this evidence Mark, it just highlights some of my frustrations”.
9. (MA 375) “I can understand your frustration because clearly it’s there”.
Any evidence I attempted to show MA was dismissed, because he found it to be previous, yet he uses issues which he even states as previous in his decision to dismiss me. Issues that do not have evidence to back the statement up. I have shown throughout, he based his decision on the wrong facts.
There are 8 passages in the hearing that MA is obviously referring to. Before I deal with them I would like to point out my state of mind that day and what I considered to be a very aggressive attitude of MA. Therefore how I came across was interpreted by MA the wrong way. Also it was and never has been about getting attention to me, I only wanted the issues I raised to get attention, attention in the context of discussion however would have been nice.
(PW 36)“I`ve done it previously and you never pulled me on it. I`ve done it when it comes to a point that I`ve been ignored and ignored and ignored”. It did not sound well, but It was aimed at the way I behaved that day, it was how I always behaved faced with that type of fault. The only near miss report in my file is one dating back to 2005, I reported this via the signaler and my train remained in service, units are not taken out of service for a near miss. I am quite sure that if I had previously fabricated a near miss I would have been jumped upon.
(PW 186) “Yes, I put my hands up immediately straight away and told them exactly what I did and why and I`ve done that previously”. Meaning always readily admitted each time I was interviewed that the near miss was a fabrication.
(PW 201) “Yes, I`ve done this type of thing before, but it never”. My answer was a referral to charge 1, the way I dealt with the defective warning horn that day was the same as any other day. But MA kept interrupting me and was really aggressive.
(PW 343) “As I say, I have done these type of things previously, I`ve not even had a warning. It’s not the first time”. Meaning, behaviour on the day in question, not informing control. But also by reporting using a scenario situation or referring to the hazards.
(PW 345). “Mark, I`m the only driver at York that’s got two boxes over at Tanner Row, two boxes because I`m the one that puts most reports in. Previously health and safety rep, if you take time to go through them boxes you will find numerous occasions when I`ve done the same as this. I`ve never had much as a verbal or written warning about it. I`ve been spoken to but it’s never been classed as a verbal warning and I`ve never had a written warning about my reports”. Meaning, wrote so many reports on warning horn, noise and wiper failures that if investigated would have shown that maybe the procedures were not followed to the rule book.
(PW 358). “I`ve done this previously and I didn`t see any where wrong for what I was doing. If I had been jumped on previously maybe I would have reacted differently”. Meaning, the simple failure to report to control and fax the repair slip off. It was a common occurrence, every driver was guilty of this.
(PW 365). “It was my way of reporting faults”. Meaning, strong worded reports, not fabricated reports.
(PW 376). “You know that I am the type of person that has done this before, if I were jumped on before and warned and we come to an understanding then this would never have happened”. Meaning, at the time, I was trying to show MA some previous reports, showing my concerns for these very issues, they show that I never informed control, yet even though TPE had these, no manager came to me and let me know I was not supposedly doing the right thing. Although the comments state that I have done it before, I never once said that I have previously fabricated any reports.
Some other pointers surrounding these charges, what did MA want me to show “remorse” over? “And it’s not just a way of getting attention in these matters”. What chance would I have of getting any attention? History proves beyond any reasonable doubt that I didn`t stand a chance of getting attention, every previous report had been ignored. I did want attention, attention to serious health and safety issues, and if I had got attention we wouldn’t be here now.
CHARGE 3
MA Failure to follow the correct procedure for reporting unit defects. “It is my belief that this issue was covered in charge one as you represented Steve and I will withdraw it on this occasion”.
There were 3 faults, 2 of these differ from the warning horn, are these not important? Is it only a reporting procedure on a warning horn that warrants a “Gross Misconduct” charge? Because that is what this is saying. It also shows that this was never a gross misconduct charge. MA never went over this charge in this hearing, he completely forgot about it.
Furthermore MA States, “My view is the relationship between FTPE and yourself has irrevocably broken down to the effect that you have deemed it necessary to sit there and promote the fact that you falsify reports in relation to this incident, and have done previously. With regard to this, it is my decision today to summarily dismiss you from service with immediate effect”.
I have never falsified any reports in relation to that incident or any other incidents. I would like to say that this has been used by TPE as an add on to try and justify their decision to dismiss me, this was not what their original charges charged me with. I CHALLENGE them to show any reports that they think have been, or likely to have been, fabricated in relation to that incident. Yet MA dismissed evidence I tried to show him from before this incident, but he uses what he thinks is useful to him from previous events. Here are parts from the hearing which prove exactly this.
1. (MA 20) “I am not interested in previously”.
2. (PW 164) where I attempt to show MA a previous report, his response is (MA 173) “I understand what your saying, this in relation to this incident is separate, like you say is previous”.
3. (MA 310) “I know what you are saying for the range of reports for previous and all this, I am only reading into the context of this because this is the one I know about”.
4. (PW 311) “But its relevant Mark, its evidence”.
5. (MA 312) “I understand that”.
6. (PW 313) “Ignorance”.
7. (MA 339) “Well I can`t comment before the event can I? I can only go on what I have seen post this”.
8. (PW 374) “Would you like to look through some of this evidence Mark, it just highlights some of my frustrations”.
9. (MA 375) “I can understand your frustration because clearly it’s there”.
Any evidence I attempted to show MA was dismissed, because he found it to be previous, yet he uses issues which he even states as previous in his decision to dismiss me. Issues that do not have evidence to back the statement up. I have shown throughout, he based his decision on the wrong facts.
_At the end
of this meeting, ST gave MA an email the contents of which divulge
information on what Driver Manager Ged Higgins tells Driver Geoff Lee.
It alleges that TPE were going to stop my wages and dismiss me. The only
reason we never brought this up earlier in the meeting was because if
not needed we did not want to cause Driver Geoff Lee any problems. Sadly
by showing this email, it did cause Driver Lee problems.