Australian Rail, Tram and Bus Industry Union v Sydney Trains
[2024] FWC 533
•17 APRIL 2024
| [2024] FWC 533 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2023/8052)
| DEPUTY PRESIDENT CROSS | SYDNEY, 17 APRIL 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 21 December 2023, an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure under s.739 of the Fair Work Act 2009 (the Act) was filed (the Application) by the Australian Rail, Tram and Bus Industry Union (the RTBU/Applicant) on behalf of Mr John Fakhouri.
The Application stated that Sydney Trains (the Respondent), had denied Mr Fakhouri procedural fairness by preventing him from appealing a disciplinary outcome. The Applicant sought for the Commission to apply the status quo in clause 8.4 of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the Agreement), resulting in the Applicant remaining employed by Sydney Trains until the dispute was resolved, and requiring Sydney Trains to allow Mr Fakhouri “to exercise all avenues of appeal of the decision to dismiss his employment”.
The Applicant’s employment had been terminated by the Respondent on 30 November 2023 (the Termination). That termination is the subject of a current unfair dismissal claim before the Commission.
While the parties filed two witness statements each, subject to the removal of two short pieces of evidence the parties requested that the Commission determine the matter “on the papers”.
Background
The Agreement contains a disciplinary procedure. The Agreement provides (Clause 33.16):
“Employees have access to the current disciplinary appeals process in place at the time this agreement is made.”
The disciplinary appeals process that was current at the time the Agreement was made in February 2023, is outlined in a Sydney Trains policy document tiled “Discipline Penalty Review Process Guidelines” (the Review Guidelines). The Review Guidelines provide the circumstances in which a disciplinary penalty decision of Sydney Trains may be reviewed by Transport for NSW (TfNSW).
Mr Fakhouri was a train driver employed by Sydney Trains for over 40 years.
On 14 September 2020, Mr Fakhouri was charged by NSW Police with an offence pursuant to s.474(1) of the Criminal Code Act 1995 being to “use carriage service to menace/harass/offend”, the victim being another Sydney Trains driver who allegedly received 5 offensive text messages from a public payphone in June 2020 (the Offences).
On 20 October 2020, Mr Fakhouri was suspended with pay by Sydney Trains.
On 19 May 2021, Sydney Trains provided Mr Fakhouri with a letter of allegations alleging a breach of the Transport Code of Conduct by way of the Offences having occurred. (First Letter of Allegations). The First Letter of Allegations provided in part as follows:
…
Investigation report and disciplinary action
After considering all available information and documentary material, an Investigation Report will be prepared. The Investigation Report may be referred to the Sydney Trains Disciplinary Review Panel (DRP) if a breach of discipline has been found to have occurred.
The DRP will make a recommendation regarding appropriate disciplinary action, if any, in response to the breach of discipline. Disciplinary action may include one or more of the following:
• caution or reprimand
• fine of an amount not exceeding $100
• reduction in position, rank or grade and pay
• suspension from duty without pay
• dismissal (with or without notice)Independent of a disciplinary action, Sydney Trains may take appropriate management action including transfer; secondment; training; removal from particular duties (including acting in higher grades or secondments); counselling; mentoring or other measures in the interests of Sydney Trains.
You will be provided with an opportunity to make further representation prior to any disciplinary action being taken.
…
On 28 July 2021, Mr Fakhouri’s solicitors responded to the First Letter of Allegations arguing it was harsh and unreasonable to consider disciplinary action whilst criminal proceedings were ongoing and noted the Offences had not yet been established.
On 20 September 2021, Sydney Trains advised Mr Fakhouri’s solicitors that the allegations had been substantiated and the matter would be referred to the Sydney Trains Disciplinary Review Panel (DRP) to determine the appropriate disciplinary outcome. That letter provided in part as follows:
…
Referral to the Disciplinary Review Panel
After considering all relevant and available information, this investigation is now complete and a finding has been made that the allegation is substantiated. This matter will now be referred to the Sydney Trains Disciplinary Review Panel (DRP) to consider this finding and breach of discipline.
…
On 7 January 2022, the Sydney Trains DRP advised Mr Fakhouri that it had elected to delay any disciplinary finding until the criminal matter relating to the Offences had been heard.
On 13 May 2022, Mr Fakhouri was convicted in the Local Court of the Offences and fined $2000.
On 8 August 2022, Mr Fakhouri was provided another letter of allegations by Sydney Trains, alleging that the Offences had occurred as previously particularised, and providing a second allegation that he had he had been convicted of the Offence on 13 May 2022 (Second Letter of Allegations). The Second Letter of Allegation provided in part as follows:
…
Possible Outcomes
After conducting any relevant interviews and considering all available information, an Investigation Report will be prepared. If a breach, or breaches, of Our Code of Conduct or Sydney Trains Policy and/or Procedure has occurred, the Investigation Report may be sent to the Professional Standards and Conduct Unit (PSCU) for their consideration.
The PSCU may then determine that the matter must be referred to the Disciplinary Review Panel (DRP). The DRP will make a preliminary recommendation regarding any appropriate disciplinary action in response to the breaches. Disciplinary action may include one or more of the following:
• caution or reprimand
• fine of an amount not exceeding $100
• reduction in position, rank or grade and pay
• suspension from duty without pay
• dismissal (with or without notice)
Independent of any disciplinary action, Sydney Trains may take appropriate management action including transfer, secondment, training, removal from particular duties (including acting in higher grades or secondments), counseling, mentoring or other measures in the interests of Sydney Trains.
You will be provided with an opportunity to make further representations prior to any disciplinary action being taken.
…
On 19 August 2022, Mr Fakhouri’s solicitors responded to the Second Letter of Allegations advising that the conviction was subject to an appeal, and requesting that Sydney Trains await the result of the appeal before proceeding with the allegation.
On 7 December 2022, Mr Fakhouri was advised of Sydney Trains’ final view that the appropriate disciplinary outcome was termination of his employment (the First Termination Letter). The First Termination Letter provided in part as follows:
…
Having considered the above, Sydney Trains' final view of an appropriate disciplinary outcome is:
Dismissal
Request for Review
Under the Interim Discipline Penalty Review Process Guidelines put in place by Transport ·for NSW, permanent Sydney Trains employees may access a review process on grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable.
Any request for review is to be made to the Secretariat, Transport for NSW Disciplinary Panel within ten (10) working days of receipt of this letter. The form for requesting a review can be found on the Sydney Trains intranet under MyHR/HR Forms/Discipline. Once completed, the form is to be sent to: [email protected].
The notice period for your dismissal commences from the date you receive this letter and includes the ten working day period you have to submit a request for review.
If a request for review is submitted and received by the end of the ten working day period, the dismissal will not take effect until the review has been completed and the notice period will continue until the review is concluded.
If a request for review is not received by the end of the ten working day period, the disciplinary outcome of Dismissal will be implemented. If necessary, you will be paid in lieu for the remainder of your notice period in accordance with clause 19.2 of the Sydney Trains Enterprise Agreement 2018.
…
On 15 December 2022, Mr Fakhouri filed a Notice of Disciplinary Penalty Review with the DRP pursuant to the process in the Review Guidelines.
On 25 January 2023, the Disciplinary Review Panel (DRP) of TfNSW advised it had considered Mr Fakhouri’s request for review of a disciplinary decision made by Sydney Trains, and that the DRP would await the outcome of the appeal of the criminal conviction before making its decision. That letter provided:
Request for Review of Disciplinary Decision
I refer to the Notice of Disciplinary Penalty Review you submitted to the Transport for NSW Disciplinary Panel on 16 December 2022.
At its meeting on 25 January 2023 the Disciplinary Panel gave consideration to your submission in accordance with the Sydney Trains Interim Discipline Penalty Review Process Guidelines.
The Panel decided to await the outcome of the appeal of your criminal conviction before making a decision regarding your review request.
The Panel will consider any information which may be available following finalisation of the appeal and notify you of its decision at that time.
A copy of this letter has been provided to Sydney Trains.
[Emphasis added]
On 4 May 2023, Mr Fakhouri’s appeal was heard in the District Court in Sydney and orders were made that day upholding the appeal and quashing the conviction of the Local Court.
On 5 May 2023, Mr Fakhouri’s solicitors advised the TfNSW DRP of the decision of the District Court.
On 18 August 2023, the TfNSW DRP advised Mr Fakhouri that it had made a decision to set aside the disciplinary decision, and was returning the matter to Sydney Trains to consider any further information and make a new decision. That correspondence provided as follows:
Request for Review of Disciplinary Decision
I am writing further to my letter of 25 January 2023 in which I advised that the Transport for NSW Disciplinary Panel had considered your request for review of a disciplinary decision made by Sydney Trains and that the Panel would await the outcome of your appeal of your criminal conviction before making its decision.
As the appeal of your conviction has since been finalised, on 17 August 2023 the Panel gave further consideration to your request in accordance with the Sydney Trains Interim Discipline Penalty Review Process Guidelines.
The Panel decided the original decision is to be set aside and the matter returned to the Sydney Trains’ decision maker to consider any further information and a new decision made.
Sydney Trains will contact you regarding this matter in due course. A copy of this letter has been provided to Sydney Trains.
[Emphasis added]
On 13 September 2023, in a letter titled “Request for response to proposed disciplinary outcome (New Decision)” (the Second Termination Letter), Sydney Trains wrote to Mr Fakhouri advising him that it had considered new materials from the Local Court and District Court, and that it was no longer pursuing the allegation that he was convicted, but further advised that it was satisfied that he sent the text messages, and that Sydney Trains was considering termination of his employment as a “New Decision”. That letter commenced as follows:
You will be aware that a review of your disciplinary matter has been completed by the Transport for NSW Disciplinary Panel (Panel).
As noted in correspondence to you dated 18 August 2023, the panel decided that the original Sydney trains disciplinary decision was to be set aside in the matter returned to Sydney trains for further information to be obtained and a new disciplinary decision made (New Decision)
The Second Termination Letter went on to provide as follows:
…
Sydney Trains considers that your conduct amounted to repeated and targeted behaviour towards another Sydney Trains employee which was offensive, disrespectful, discriminatory and unreasonable.
Your conduct was entirely inconsistent with your obligation as a Sydney Trains employee to treat your colleagues with dignity and respect. It was also inconsistent with Sydney Trains commitment to providing a safe, equitable workplace.
Request for response
Considering the above, Sydney Trains remain satisfied that your conduct warrants disciplinary action. Given the serious, deliberate nature of your misconduct, Sydney Trains is proposing to affirm the disciplinary decision of DISMISSAL as a New Decision.
Before affirming dismissal as the New Decision, you have a further and final opportunity to make submissions regarding Sydney Trains concerns outlined above and to respond to the proposed disciplinary outcome. You are invited to provide further commentary on:
1. the new information considered by Sydney trains, specifically the attached court transcripts
2. why Sydney Trains should not consider that your behaviours gave rise to an irretrievable loss of trust and confidence in the employment relationship
3. any other circumstances, special considerations or other information you wish to provide as to why Sydney Trains should not terminate your employment, and
4. any other information you would like to be considered before a new decision is determined.
Your response is due within 14 days upon receipt of this letter and should be sent directly to [Name deleted]
If you do not provide a response, Sydney Trains will make its New Decision based on your previous responses and information available to it.
On 4 October and 7 November 2023, Mr Fakhouri’s solicitor’s provided responses outlining why Mr Fakhouri should not be terminated.
On 30 November 2023, at a meeting between Mr Fakhouri, his Shift Manager and his then 2 up Manager, Mr Fakhouri was provided with a letter titled “Final disciplinary outcome (New Decision)” that advised him that Sydney Trains had decided to terminate his employment (the Final Termination Letter). The Third Termination Letter provided in part as follows:
…
Sydney Trains considers that your conduct, which was repeated and targeted towards another Sydney Trains employee, was offensive, disrespectful, discriminatory and unreasonable. It was entirely inconsistent with your obligations as a Sydney Trains employee to treat your colleagues with dignity and respect, and was also inconsistent with Sydney Trains’ commitment to providing a safe, equitable workplace.
Sydney Trains has lost trust and confidence in the employment relationship, which it considers to be irreparably damaged. Accordingly, Sydney Trains considers that the appropriate, final disciplinary outcome to this matter is DISMISSAL.
Your employment with Sydney Trains is therefore terminated, effective upon the date this letter is provided to you. You will be paid in lieu of your notice period in accordance with clause 19.2 of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.
Mr Fakhouri claims he was advised that he would not be able to seek review of the Final Termination Letter and/or the New Decision. The above meeting concluded at 12.26pm, and at 3.23pm RTBU Organiser Mr Marc Chapman lodged a dispute on Mr Fakhouri’s behalf regarding the communication of his dismissal earlier in the day, and the failure to provide for a TfNSW DRP review of the New Decision.
TfNSW responded to the above dispute notification by email as follows:
Thank you for your email notifying me of a Step 1 Dispute lodged under the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (Agreement). In accordance with the Dispute Settlement Procedure (DSP), below is a written response to the dispute.
It is the position of Sydney Trains that Mr Fakhouri has already sought a review of the initial decision to terminate his employment in line with Sydney Trains’ policies and procedures that facilitate a review process. Following the review the matter was referred back to Sydney Trains for further information to be obtained and a new decision made.
Mr Fakhouri was then given the opportunity to make submissions and respond to Sydney Trains’ proposal to affirm the disciplinary decision of dismissal, including providing any additional information.
Sydney Trains made a new decision based on a consideration of available material that the appropriate final disciplinary outcome was dismissal. Accordingly, Mr Fakhouri’s employment was terminated effective upon the date the termination letter was issued, being 30 November
2023. No terms of the Agreement have been breached in this process.
It is the position of Sydney Trains that the status quo in this matter is that Mr Fakhouri is no longer employed. Should this matter escalate through the DSP, it remains the position of Sydney Trains that the Fair Work Commission will not have power to order reinstatement.
I trust this closes the dispute.
On 14 December 2023, Mr Chapman filed a Notice of Disciplinary Penalty Review on behalf of Mr Fakhouri with respect to the New Decision.
On 15 December 2023, Mr Chapman was advised by Nick Burchell, Functional Business Analyst in Workplace Conduct Investigations in People and Culture at TfNSW, that as “Mr Fakhouri’s matter has already been considered by the Panel, there are no further internal review avenues available”. Mr Chapman was advised by email from TfNSW, also from Mr Burchell, that Mr Fakhouri’s Notice of Disciplinary Penalty Review had been refused. That correspondence provided:
Mr Fakhouri’s request for review was considered by the Panel on 17 August 2023. At that time, the Panel decided to set aside the decision and return the matter to the original decision maker to consider any further information and a new decision made.
It is noted that Sydney Trains has now made a new decision in this matter.
As Mr Fakhouri’s matter has already been considered by the Panel, there are no further internal review avenues available to Mr Fakhouri.
Also on 15 December 2023, a meeting was held to discuss the dispute. The meeting was attended by Mr Chapman and Mr Peter Matthews from the RTBU, and Ms Kim Fisher and Ms Christie Wood from Sydney Trains. The dispute was not resolved, and both parties agreed to skip step 3 of the dispute settlement procedure and proceed to step 4, which is referral to the Commission.
On 21 December 2023, Mr Chapman filed the form F10 that commenced these proceedings. It was the first time Mr Chapman had prepared and filed an F10 in the Commission, and he did not list Mr Fakhouri as the Applicant. Later on 21 December 2023, Mr Chapman received an email notice from the Commission advising that his filing was incomplete.
On 22 December 2023, Mr Chapman resubmitted the form F10, having signed the form and written in Mr Fakhouri’s name as the Applicant because he believed that was why the filing had been rejected.
Notwithstanding his termination, Mr Fakhouri continued to be paid until at least 18 December 2023.
The Review Guidelines
The complete text of the Review Guidelines is as follows:
1. When can a request for a Discipline Review be made?
A request can be made for a discipline penalty decision to be reviewed if an employee has been given any of the following penalties ina disciplanry process (discipline penalty decision):
· Letter requiring the employee to show cause why they should not be dismissed from Sydney Trains employmeyment
· A fine
· Reduction in position, rank or grade and pay
· Suspension from duty without pay
This is a merits review only.
2. What is a merits review?
Merits review involves a review of the disciplinary matter, in which matters of fact, as well as questions of law, may be considered. The review considers whether, on the evidence available to the original maker of the discipline penalty decision call mom not to have been made because it was harsh, unfair or unreasonable.
3. How does the process work?
3.1 Making a Request for Review
Air quest for review must be made within 10 working days’ notice being given to the employee of a discipline penalty decision.
The employee makes a request in writing for review of the discipline penalty decision stating why the penalty was, in all of the circumstances, harsh, unfair or unreasonable.
The request is made to transport for NSW General Manager, Information and Investigations, Human Resources and Business Services division, who considers the request and decides whether it meets any of the criteria listed in Section 1 above.
Where the request for review is assessed as valid, it is referred to the transport for NSW Disciplinary Panel. The
Transport for NSW Disciplinary Panel comprises at least three of the following members, or their delegates:
· Chief Executive, Sydney Trains (provided he/she was not involved in any aspects of the original disciplinary process)
· Executive Director, human Resources & Business Services, Transport for NSW
· Group General Manager, Human Resources, Transport for NSW
· Chief Financical Officer, Transport for NSW
· Group Corporate Counsel, Transport for NSW
The original maker of the discipline penalty decision is informed that there is a request to review the discipline penalty decision.
The discipline penalty is not applied until the review is completed.
3.2 Assessing Request for Review
The Disciplinary Panel examines the written request and the paperwork connected with the disciplinary process and resulting discipline penalty decision.
The Disciplinary Panel makes a determination on the paperwork alone.
The Disciplinary Panel considers whether, on the evidence available to the original maker of the discipline penalty decision, the decision ought not to have been made because it was harsh, unfair, or unreasonable.
The Disciplinary Panel makes a decision on the outcome of the request for review. The Disciplinary Panel informs the Director Human Resources, Sydney Trains on the outcome of the request for review.
The person requesting the review and the original maker of the discpl9nne penalty decision are informed of the decision.
3.3 Outcomes of a Discipline Penalty Review
The Discipline Panel can decide that:
· the original decision is to stand;
· the original decision is set aside and the matter is returned to the original decision maker to have further information obtained and a new decision made;
· the original decision be set aside and the Discplinary Panel make a substitute decision.
There is no review of the Disciplianry Panel decision. The decision of the Disciplinary Panel must be in writing.
The Director Human Resources, Sydney Trains is to act to impose a discipline penalty decision, or take other action, following the outcome of the review.
4. Other Aspect of Process
Except in extraordinary circumstances, the review process would be completed within 20 working days following receipt of the request to review a discipline penalty decision.
The review process is confidential and information is only communicated on a need to know basis. The Disciplinary Panel may recommend to the Director Human Resources, Sydney Trains that improvements may be made to the disciplinary process to resolve issues, misunderstandings or misinterpretation of process that have become apparent during the review.
The Dispute Settlement Procedure
Clause 8 of the Agreement provides:
8 DISPUTE SETTLEMENT PROCEDURE (DSP)
8.1 The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.
8.2 This procedure shall apply to any dispute that arises about the following:
(a) matters pertaining to the relationship between the Employer and Employees (including workload changes for Sydney Trains and workload matters for NSW TrainLink);
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the Agreement and/or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the Agreement;
(d) the National Employment Standards; and
(e) the operation and application of this Agreement.
8.3 This procedure shall not apply to:
(a) Matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth); or
(b) Decisions made regarding priority assessment in respect of:
(i) the restructure of an employee’s business unit; or
(ii) in the first 3 months of implementation of organisational change.
8.4 The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
8.5 If a party to a dispute alleges in writing to the other party that they are not complying with sub-clause 8.4, the party alleged to be in breach shall respond to such allegations within 24 hours. If there remains a dispute about compliance with sub-clause 8.4 after receipt of the response, any party may refer the matter to the Fair Work Commission in relation to the sub-clause 8.4 matter within 24 hours for conciliation. If conciliation does not resolve the dispute about compliance with sub-clause 8.4 the matter will be arbitrated by the Fair Work Commission. The timeframes provided in this clause exclude weekends and public holidays.
8.6 Any dispute between the Employer and Employee(s) or the Employee’s Representative shall be resolved according to the following steps:
STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their Union delegate directly with the local supervisor/manager. The local supervisor/manager shall provide a written response to the Employee(s) or their Union delegate concerning the dispute within 48 hours advising them of the action being taken.
STEP 2: If the dispute remains unresolved, or if the dispute involves matters other than local issues, the Director Employee Relations or their nominee, a divisional management representative and the Employee(s) and/or the Employee(s) Representative, Union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of the completion of Step 1 or the Director Employee Relations being notified of a dispute involving matters other than local issues.
STEP 3: If the dispute remains unresolved, each party to the dispute shall advise in writing of their respective positions and negotiations about the dispute will be held between the Employee Representative(s) or Union official, the Chief Executive of the Employer or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.
STEP 4: If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.
8.7 By mutual agreement confirmed in writing, Step 3 outlined above may be avoided, and the parties to the dispute may seek the assistance of the Fair Work Commission in the terms outlined at Step 4.
8.8 If it is decided to refer the matter to the Fair Work Commission, the referral must take place within 72 hours, excluding weekends and public holidays, of completing Step 3. A copy of the notification must be forwarded to all relevant parties to the dispute.
8.9 The parties to the dispute may extend the timeframe of Steps 2 – 4 by agreement. Such agreement shall be confirmed in writing.
8.10 The timeframes in Steps 1 to 4 above are exclusive of weekends and public holidays.
8.11 If, at the commencement of this Agreement, a dispute that had commenced in accordance with sub-clause 8.4 of the 2018 Agreement was not:
(a) resolved between the parties; or
(b) determined by the Fair Work Commission, including an appeal,
the dispute will continue to be dealt with in accordance with the relevant provisions of the 2018 Agreement, including the dispute settlement procedure of that 2018 Agreement.
8.12 A dispute will only continue in accordance with 8.11 if the matter/dispute is not resolved through this Agreement.
8.13 For the purposes of sub-clause 8.11, the relevant provisions of the 2018 Agreement are deemed to be provisions of this Agreement.
Consideration
(a) Jurisdictional Issues
The Respondent submitted that the ability of the Commission to determine the dispute is not engaged because:
(1) It must be a matter pertaining to the employment relationship between an employee and Sydney Trains, however at the relevant time of the filing of the dispute Mr Fakhouri was no longer an employee; and
(2) While the Applicant suggests that the Union should be substituted as the Applicant in the dispute, such substitution would be inappropriate because the fundamental nature of the dispute is what happened to Mr Fakhouri rather than the question of the interpretation of entitlement or right which is affecting any identified employees of Sydney Trains other than Mr Fakhouri.
As outlined below I consider that in the appropriate application of the dispute settlement procedure, the RTBU should be substituted as the applicant in the dispute, and so the first jurisdictional objection relating to the existence of an employment relationship does not need to be dealt with. That is all the more appropriate in circumstances where, as the Respondent has contended, and I agree, that there exist conflicting full bench authorities in relation to the determination of this point.[1]
Before leaving the issue of the existence of an employment relationship, however, I make the following observations:
(a) While the Respondent asserts that “In order to arbitrate this dispute, the Commission must find that the Termination occurred on a date on or after 15 December 2023”, being the conclusion of step 2 in the DSP, that submission disregards the evidence that after the meeting concluded at 12.26pm on 30 November 2023, Mr Chapman lodged a dispute on Mr Fakhouri’s behalf regarding the communication of his dismissal earlier in the day, and the failure to provide for a TfNSW DRP review of the New Decision ,at 3.23pm on that day. The engagement of the DSP, regarding the particular issue of the review of the New Decision, commenced at 3.23pm on 30 November 2023;
(b) The Third Termination Letter advised Mr Fakhouri “Your employment with Sydney Trains is therefore terminated, effective upon the date this letter is provided to you. You will be paid in lieu of your notice period in accordance with clause 19.2 of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.” The DSP was engaged on the same date the Third Termination Letter was provided to Mr Fakhouri, albeit 2 hours and 57 minutes later;
(c) Due to what the Respondent described as an “administrative error”; Mr Fakhouri continued to be paid until at least 18 December 2023.
Nonetheless, I consider it appropriate to amend the Application to insert the RTBU as the Applicant. Amendment would allow the disputed interpretation of the Agreement to be determined on the merits of the arguments, using Mr Fakhouri as an apposite example, while avoiding technicalities. As is observed below, were the issue not determined, another employee of Sydney Trains may have their employment terminated without review of a “new decision” and in those circumstances be met with an argument that their dispute was not justiciable due to the absence of an employment relationship. That possibility should be avoided.
Sydney Trains submitted that:
“…if the Union’s application were granted, would create a new application entirely because:
(a) First, the fundamental nature of the dispute is what happened to Mr Fakhouri, the process applied to the decisions made in the disciplinary process about him and him alone;
(b) Second, the dispute is not about the interpretation of an entitlement or right which is affecting any identified employee of Sydney Trains, other than Mr Fakhouri;
(c) Third, the true nature of the dispute would be affected if the rights and entitlements of Mr Fakhouri were no longer the subject of the Application.
Sydney Trains concedes that if the RTBU has concerns in relation to the operation of the Review Guidelines with respect to other employees of Sydney Trains, it has the ability under clause 8 of the Agreement to lodge a dispute with Sydney Trains if it has a member in similar circumstances to Mr Fakhouri, and that Sydney Trains would be able to consider the issues and work through Steps 1, 2 and potentially 3, of the procedure in clause 8 prior to the matter coming before the Commission for resolution. However, that is exactly what has occurred in relation to Mr Fakhouri. Step 1 occurred on the 30 November 2023, and on 15 December 2023, a step 2 meeting was held to discuss the dispute. The dispute was not resolved, and both parties agreed to skip step 3 of the dispute settlement procedure and proceed to step 4, which was referral to the Commission.
Noting the completeness of the DSP steps undertaken, it is incomprehensible that the Commission would not deal with a clear dispute between the parties in circumstances where Sydney Trains conceded “The Union can bring a similar dispute regarding the Review Guidelines if the situation arises where an employee is similarly impacted…”.
(b) The Agreement
In the submissions of the RTBU, the relief sought was outlined as follows:
The Commission should find that the Review Guidelines do not prohibit a review of a new decision following the quashing of an earlier decision, and consequently Mr Fakhouri was not prohibited from seeking a review of the New Decision pursuant to the Review Guidelines.
The Agreement outlines a disciplinary appeal procedure. The Agreement provides (Clause 33.16):
“Employees have access to the current disciplinary appeals process in place at the time this agreement is made.”
The disciplinary appeals process that was current at the time the Agreement was made in February 2023, is outlined in the Review Guidelines. The Review Guidelines provide the circumstances in which a disciplinary penalty decision of Sydney Trains may be reviewed by TfNSW.
There had previously existed an appeal body for disciplinary decisions made by Sydney Trains called the Transport Appeals Board (TAB), a body that was abolished in around 2012. The clauses from the previous Sydney Trains Enterprise Agreement 2018, which provided for an appeals mechanism for disciplinary matters, had not been updated since the TAB had been abolished.
Since the abolition of the TAB, the RTBU and Sydney Trains have been operating under an internal appeal process being the Review Guidelines. The final wording of the Agreement recorded that the right of appeal contained in the Review Guidelines would be available to employees. I accept that the words “in place at the time this agreement is made” were used to prevent the situation where the Review Guidelines could be changed unilaterally.
The plain and ordinary wording of cl 33.16 incorporates the Review Guidelines, that replaced the TAB, into the Agreement. As the Review Guidelines existed at the time the Agreement was made, it must be accepted that employees voting on the Agreement would have understood the reference was to the Review Guidelines.
(c) The Review Guidelines
The Review Guidelines use the defined term “discipline penalty decision”, and provide at Clause 1 that:
1. When can a request for a Discipline Review be made?
A request can be made for a discipline penalty decision to be reviewed if an employee has been given any of the following penalties ina disciplanry process (discipline penalty decision):
· Letter requiring the employee to show cause why they should not be dismissed from Sydney Trains employmeyment
· A fine
· Reduction in position, rank or grade and pay
· Suspension from duty without pay
This is a merits review only.
Clause 2 of the Review Guidelines outlines that the review is a merits review only. The Clause provides:
2. What is a merits review?
Merits review involves a review of the disciplinary matter, in which matters of fact, as well as questions of law, may be considered. The review considers whether, on the evidence available to the original maker of the discipline penalty decision call mom not to have been made because it was harsh, unfair or unreasonable.
The outcomes of a discipline penalty review can be:
3.3 Outcomes of a Discipline Penalty Review
The Discipline Panel can decide that:
· the original decision is to stand;
· the original decision is set aside and the matter is returned to the original decision maker to have further information obtained and a new decision made;
· the original decision be set aside and the Discplinary Panel make a substitute decision.
There is no review of the Disciplianry Panel decision. The decision of the Disciplinary Panel must be in writing.
The Director Human Resources, Sydney Trains is to act to impose a discipline penalty decision, or take other action, following the outcome of the review.
As is made clear in the above clause, there is specifically no review of the Disciplinary Panel decision.
Whenever a “discipline penalty decision” is made, a request can be made for the review of that decision. I accept the RTBU’s submission that there is no available interpretation of the Review Guidelines that provides that a new decision, of the kind captured by Clause 1 of the Review Guidelines, is a decision excluded from review.
(d) The Example of Mr Fakhouri
The First Termination Letter of 7 December 2022, appropriately engaged the Review Guidelines. It identified the Review Guidelines, and the ten working day period within which a request for review could be submitted. On 15 December 2022, Mr Fakhouri filed a Notice of Disciplinary Penalty Review with the DRP pursuant to the process in the Review Guidelines.
Thereafter, the DRP sent Mr Fakhouri correspondence of 25 January and 18 August 2023. That correspondence is unclear, however, as to whether a review of the discipline penalty decision occurred, or simply the DRP decided the original decision should be set aside and the matter returned to the Sydney Trains’ decision maker in light of the successful appeal. The correspondence of 25 January 2023, advised “The Panel decided to await the outcome of the appeal of your criminal conviction before making a decision regarding your review request”, and the correspondence of 18 August 2023, advised” The Panel decided the original decision is to be set aside and the matter returned to the Sydney Trains’ decision maker to consider any further information and a new decision made”. In the Second Termination Letter, even Sydney Trains characterised the decision as the panel deciding “that the original Sydney trains disciplinary decision was to be set aside in the matter returned to Sydney trains for further information to be obtained and a new disciplinary decision made (New Decision).”
However, assuming that a review in line with the Review Guidelines occurred before 18 August 2023, the New Decision was clearly a “discipline penalty decision” that could, at the request of Mr Fakhouri, be subject to review in accordance with the Review Guidelines. The Second Termination Letter, dated 13 September 2023, erroneously failed to refer to the Review Guidelines, or the ten working day period within which a request for review could be submitted.
Conclusion
Pursuant to s.586(a) of the Act, I allow the amendment of the Application by replacing Mr Fakhouri as the Applicant, and inserting the RTBU as the Applicant.
The Review Guidelines do not prohibit a review of a new decision following the quashing or setting aside of an earlier decision. In the particular circumstances of Mr Fakhouri, he was not provided with access to a review of the New Decision pursuant to the Review Guidelines.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
[1] See Mitchell v University of Tasmania[2022] FWCFB 165 ; Tracey v BP Refinery (Kwinana) Pty Ltd [2022] FWCBR 210, at [45]
Printed by authority of the Commonwealth Government Printer
<AE519142 PR771904>
1