Mark Lawrence v Metro Trains Melbourne Pty Ltd

[2021] FWC 1078

[2021] FWC 1078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Lawrence

v

Metro Trains Melbourne Pty Ltd

(U2020/11779)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 30 MAY 2021

Application for an unfair dismissal remedy.

1. On 31 August 2020 Mr Mark Lawrence (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Metro Trains Melbourne Pty Ltd (Metro Trains, the Respondent).

1. Mr Lawrence was dismissed from his employment on 18 August 2020 at the initiative of the employer for ‘serious misconduct’. The dismissal took effect immediately. Mr Lawrence does not deny the incident occurred however denies it occurred in the manner described by Metro Trains. He also denies that the conduct was serious misconduct and submits his dismissal was unfair. Mr Lawrence is seeking reinstatement.

Background and case outline

1. Mr Lawrence has been employed by Metro Trains and its predecessors since March 2002.[1] Until 2007, Mr Lawrence worked as an Authorised Officer (AO). He was then a trainee train driver and from October 2009 worked as a full-time qualified train driver.[2]

1. Metro Trains operates the metropolitan public railway network in Melbourne and surrounding suburbs as a franchisee. The franchisor is the Victorian Department of Transport.[3]

1. Mr Lawrence was summarily dismissed for a physical altercation with a member of the public (Mr Raymund, to be referred to as Mr R) that occurred on Sunday 9 August 2020 (the incident). Mr R suffered a head wound as a result of the interaction and the police and an ambulance were called to the scene.[4]

1. On that day, Mr Lawrence was at the Spanish Donut Café located within the Flinders Street Station concourse.[5] Mr Lawrence contends that at approximately 3:10pm while he was waiting for his coffee, Mr R stood shoulder to shoulder with him. Mr Lawrence submits that at that time, Melbourne was at the height of the coronavirus [COVID-19] infection spread and Mr R was not wearing a mask.[6] Mr Lawrence submits he asked Mr R to move away several times but Mr R refused and, following his third request to move away, became very angry and made threats to kill.[7] Mr Lawrence submits he tried to push Mr R away however Mr R lunged at him, and in a split-second decision to contain the threat he manoeuvred Mr R to the ground and held him down while waiting for assistance.[8] Mr Lawrence says that at no stage did he hit or punch Mr R, he merely restrained him in a manner consistent with his earlier training as an Authorised Officer.[9]

1. Metro Trains contend that as part of the altercation, Mr Lawrence physically pushed Mr R, with excessive force, then proceeded to grab Mr R by the neck and pin him to the ground. While pinning Mr R to the ground Metro submits Mr Lawrence hit him in the face.[10] They say Mr R suffered a head wound as a result of the interaction and the police and ambulance were called to the scene.[11]

1. After the incident, Mr Lawrence completed an incident report and Duty Manager Faye Stamos met with him to conduct a welfare check. He was also relived from Driving Duties and sent home (made non-active).[12]

1. On 10 August 2020 Mr Lawrence was verbally informed that he would be stood down with pay whilst an investigation into the incident occurred.[13] On 11 August 2020 Mr Lawrence was issued a formal meeting request outlining the allegations against him and confirming he was stood down. A meeting was scheduled for 14 August 2020.[14]

1. On 13 August 2020, Metro Trains say that Mr Lawrence responded to the allegations in an email to the General Manager, Operations, Mr Gary Wegert, denying any wrongdoing and making several allegations against ‘Metro management’.[15]

1. A disciplinary meeting was held on 14 August 2020. Metro Trains submit that in this meeting Mr Lawrence expressed that he had no further response other than the email he sent the previous day.[16] Metro Trains submit Mr Lawrence was given an opportunity to view the CCTV footage of the incident in this meeting.[17]

1. Metro Trains submit that after considering Mr Lawrence’s response along with the available information relevant to the matter at hand the recommendation was reached to terminate Mr Lawrence’s employment.[18]

1. Metro Trains states that further CCTV footage became available to them following the meeting, which they say shows Mr Lawrence hitting Mr Rin the face after pinning him down. This information was considered as part of the termination process but not provided to Mr Lawrence as a formal allegation as the decision to terminate had already been reached on the basis of the altercation.[19]

1. The dismissal letter asserts that Mark Lawrence physically pushed a member of the public and used excessive force against him and that as part of the altercation, he escalated the situation by grabbing the individual by the neck and pinning him to the ground. Mr Lawrence disputes those assertions both as to context and details.[20] Mr Lawrence submits he did not engage in serious misconduct and there was no valid reason for his dismissal.

Procedural Background

1. The matter was conciliated on 18 September 2020 however the matter was not resolved. The matter was subsequently listed for hearing before me on 23 November 2020 and 1 and 2 February 2021.

1. Mr Lawrence was represented by Mr Martin Willoughby-Thomas, Lawyer. At the hearing, Mr Lawrence gave evidence on his own behalf. Mr Brevan Hamling, Train Driver, also gave evidence. Metro Trains was represented by Ms Jessica Gillam, Industrial Relations Manager. Ms Nicole Maloney, who had been Metro Trains’ Employee and Industrial Relations Specialist, gave evidence on behalf of the Respondent, as did Mr David Hutton, Group Manager South and Mr Alfio Barbagallo, Compliance and Operational Support Manager – Authorised Officers.

Statutory Framework

1. Section 396 of the Act requires that the following matters be decided before the merits of the application may be considered. I am satisfied that Mr Lawrence’s application was made within the 21-day period prescribed by s.394(2) of the Act. Metro Trains is not a Small Business employer within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.

1. At the time of his dismissal the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2019[21] (the Agreement) applied to Mr Lawrence’s employment. He earned less than the high-income threshold, and had completed a period of employment with Metro Trains that was at least the minimum employment period required by s.382 of the Act. I am satisfied that Mr Lawrence is a person protected from unfair dismissal.

The cases presented

Summary of evidence of Mr Lawrence

1. Mr Lawrence’s evidence is that at the time if his termination he worked full-time on a roster based at the Cranbourne Depot and reported to his Manager Mr Ivan Lajoie. Mr Lawrence’s duties were predominantly to drive the train with some limited customer service and documentation duties.[22]

1. Mr Lawrence gave evidence that he worked as an Authorised Officer until 2007 and that one aspect of his training involved diffusing a threatening situation by taking an offender to the ground and holding them there until help arrived. Mr Lawrence evidence’s is that the training was something that remained with him and he used those skills during the incident that occurred on 9 August 2020.[23]

1. Mr Lawrence has been awarded Certificates of Appreciation in 2014 and 2016 and received letters complimenting his conduct in February 2019 and July 2019.[24]

1. During his employment Mr Lawrence had experienced a few fatalities and submits that he has suffered from Post-Traumatic Stress Disorder due to the events that occurred.[25] Mr Lawrence’s evidence is that Metro Trains were unsympathetic in the way they managed the incident of 9 August 2020 and this added to the stress he has experienced.[26]

1. Mr Lawrence gave evidence that approximately a decade ago the train he was driving struck and killed a wheelchair-bound person.[27] In 2018 a woman committed suicide by stepping in front of his train and in 2019 he was involved in an incident (the Carnegie incident) with a member of the public who was also trying to commit suicide.[28] Mr Lawrence says those incidents still haunt him and add to the stress caused by the 9 August 2020 incident where he says threats were made to his life by a member of the public[29]

2019 Carnegie Incident

1. It is not in contention that Mr Lawrence received a first and final warning for the incident that occurred on 18 September 2019.[30] Mr Lawrence argues that the incident that occurred in 2019 has little to no relevance to the incident for which he was dismissed.[31]

1. Mr Lawrence’s evidence is that on 18 September 2019 he was approaching Carnegie Station when he noticed a station staff employee on the platform waving his hands above his head. Mr Lawrence then noticed a male person who jumped onto the train tracks below the platform.[32] Mr Lawrence says he immediately bought his train to a stop at the end of the platform. Mr Lawrence says watching the young man pace back and forth between the tracks bought back memories of a recent fatality he was involved in, where he struck and killed a young girl in Seaford.[33]

1. Mr Lawrence says he was concerned for the welfare of the distressed male, he left the train cab and jumped into the pit and took hold of the male who informed him he wanted to die. Mr Lawrence says he asked if he could call his family and continued to talk to him as he waited for help. Mr Lawrence says he assumed the station person who was on his phone was calling for assistance.[34]

1. Mr Lawrence’s evidence is that he was assisted by a member of the public and was able to get the male person up onto the platform.[35] Once on the platform the male person attempted to run away. Mr Lawrence says he thought the male person would carry out his threat of self-harm and because he knew there was another train coming in the opposite direction at any time he chased him and grabbed him from behind and they both fell to the ground.[36] Mr Lawrence’s evidence was that the male person became extremely agitated and was twisting and contorting in an attempt to break free and was bordering on being totally hysterical. Mr Lawrence says he informed the male person that he was placing him under citizen’s arrest because he was concerned for his welfare and if he didn’t say that, he could not legally hold him.[37]

1. Mr Lawrence says he continued to resist him and he asked the member of the public who had assisted him earlier to go to the train and retrieve his work bag which he did. Mr Lawrence asked the member of the public to retrieve cable ties from his bag and tie the agitated male person’s wrists with the cable ties as he was becoming tired and doubted being able to hold him for much longer unrestrained.[38] Mr Lawrence submits he thought this was the safest option for both the male person and himself.[39] Mr Lawrence says he kept pushing the male persons legs down to the ground and reassured him that they would get him help.[40] Mr Lawrence’s evidence is that another member of the public wearing a red shirt approached and started abusing and swearing at them. An assisting passenger attempted to explain the situation to the concerned member of public. Mr Lawrence says the member of the public identified himself as a social worker and said he wanted to go home and to “move the fucking train”. Mr Lawrence says he told the member of the public to stop hindering the situation and that he was the train driver and would not be moving the train.[41]

1. Mr Lawrence described a heated verbal altercation which he says occurred between the member of the public and the passenger. This was followed by a physical altercation and Mr Lawrence says he had no alternative other than to assist the passenger because if they fell into the pit on the other side they could be struck by a train. Mr Lawrence says he “grabbed hold of the guy in the red shirt around his upper torso and took him to the ground to restrain him and to stop him hitting the other passenger.”[42]

1. Mr Lawrence submits after some time he was then assisted by a nurse before the police and paramedics arrived and he was able to release the person he had detained.[43]

1. Mr Lawrence submits when he returned back to the depot he filled in an incident report. He was then told by the Duty Manager to hand over his controller keys as he was being stood down. Mr Lawrence says he finished his report and went home.[44]

1. On 20 September 2019 Mr Lawrence received a letter from his Manager Mr Paul O’Donnell.[45] Mr Lawrence was alleged to have breached policies and procedures and to have:

·   left the Train Driver’s cab without gaining the required permission from Metrol to do so and without completing the cab unattended procedure, and without his DTRS radio.

·   Entered the track without a track access pass.

·   Directed a member of the public to enter an unsecured cab unsupervised; and

·   Failed to exercise his duty of care to himself.[46]

1. Mr Lawrence says on 24 September 2019 he wrote to Mr O’Donnell expressing his disappointment over the treatment he had received.[47]

1. On 24 September 2019 Mr Lawrence received a letter from the Group Manager Mr Dave Sutton adding another two allegations and informing him that he would continue to be stood down. Mr Lawrence was required to attend a meeting on the 26 September 2019.[48]

1. Mr Lawrence attended a meeting during which he was shown the CCTV footage of the events that took place at Carnegie Station. Mr Lawrence’s evidence is subsequent to viewing the CCTV footage one of the allegations against him was dropped.[49]

1. On 2 October 2019 Mr Lawrence received a letter stating that the first four allegations had been substantiated and the fifth and sixth allegations were partially substantiated. Mr Lawrence was required to attend a further meeting on 3 October 2019.[50] Subsequent to that meeting Mr Lawrence received a first and final warning.[51]

1. Mr Lawrence’s evidence is that he was upset because he was given a first and final warning for breaking policies and procedures, he submits that if the station assistant had called for help earlier then Metro could have put out an emergency call to all the trains in the vicinity of the station to stop and he says if that was done then the events that led to his first and final warning could have been avoided.[52] Mr Lawrence says he wore the blame although the young person was known for threatening self-harm. Mr Lawrence submits that the policy is flawed and Metro is more concerned with following its policies than saving lives.[53]

1. Mr Lawrence submits that if he was to follow the policies in circumstances where a wheelchair-bound person accidently fell of the platform or a female was being assaulted on the platform with no one else around he would have to stay in the train cab and watch without intervening. Mr Lawrence’s evidence is that he would not be permitted to render assistance without first contacting the train controller which would usually take up to seven or more minutes for them to respond. Mr Lawrence says an injured person would not receive help from a driver because the driver would be fearful of losing his job.[54]

1. Mr Lawrence says whilst he accepts the need to comply with Metro’s policies, in the incident that occurred on 18 September 2019 the probable consequence would have been injury or even death.[55] Mr Lawrence’s evidence is that it is unfair to describe his actions as an assault[56] and his actions on the day were to restrain and contain the situation and to save a life.[57]

1. Mr Lawrence argues that the warning for the Carnegie incident were for a breach of policies and procedures and therefore not a relevant consideration when determining the disciplinary outcome of the 9 August 2020 incident.[58]

9 August 2020 incident

1. Mr Lawrence’s evidence was that at the time of the 9 August 2020 incident Melbourne was in the grip of the Covid-19 pandemic and he was fearful of the possibility of infection, illness or even death.[59]

1. Mr Lawrence gave the following account of the events that took place on 9 August 2020. He drove a train from Cranbourne to Flinders Street Station arriving at 3:02pm and was scheduled to drive the next train at 3:27pm. He went to the concourse to buy a coffee from the Spanish Donut shop. Mr Lawrence says he was approached by Mr R who wanted money from him and was not wearing a mask at the time.[60] Mr Lawrence’s evidence is that Mr R was close to him and he told him to go away at least 3 times and he refused.[61] Mr Lawrence says he asked Mr R where his mask was and Mr R told him he didn’t have one. Mr Lawrence says on the third time he asked Mr R to “go away” Mr R appeared to snap and became aggressive and said “I’m not going anywhere” and “I’ll fucking kill you”.[62] It was this point that Mr Lawrence says he feared for his life.[63]

1. During the hearing Mr Lawrence was shown the CCTV footage of the August 2020 incident. Mr Lawrence gave the following account of the first CCTV footage.[64] Mr Lawrence’s evidence is that he felt his life was in danger and reacted by trying to push Mr R away. Mr Lawrence says Mr R launched forward, he was in fear for his life he made a split second decision to restrain Mr R in order to protect himself from the perceived threat. Mr Lawrence denies hitting or punching Mr R at any stage. Mr Lawrence’s oral evidence is that after he pushed Mr R away he came back at him with a raised fist and in fear he instantly thought the only safe option was to try to restrain him on the ground which he did.[65]

1. Mr Lawrence’s evidence during cross-examination was that as an AO there was never a set rule that they would have to walk away from an aggressive member of the public in order to de-escalate a situation because every circumstance changes. Mr Lawrence’s evidence is that each situation was dealt with on its own merits and depending on the circumstances at the time.[66] Mr Lawrence’s evidence was as the situation unfolded within seconds he had no other option but to carry out the actions he did.[67]

1. Mr Lawrence was shown the second CCTV footage which was off the same incident taken from a different angle.[68] Mr Lawrence’s evidence is that he was trying to restrain Mr R and his own mask came down, he lifted his hand to adjust the mask. Mr Lawrence’s evidence is that Mr R’s hand came free so he quickly grabbed his arm and pulled it into his chest.[69] Mr Lawrence’s evidence is that at no time did he strike Mr R as alleged by Metro Trains.[70]

1. During cross examination Mr Lawrence gave evidence that he agreed with the proposition that in situations where there is a perceived threat of violence or a risk of harm that an attempt should be made to de-escalate the situation. Mr Lawrence’s evidence is that he had initially attempted to do that and his main concern was that Mr R did not have a face mask on.[71] Mr Lawrence’s evidence was that the situation changed once Mr R made threats.[72] Mr Lawrence said he didn’t have a chance to move away because everything happened within seconds.[73]

1. Mr Lawrence’s evidence is that his actions de-escalated the situation and he followed through until Mr R was restrained and the police arrived.[74] During cross-examination Mr Lawrence concedes that he did not have the powers of an authorised officer to arrest or detain Mr R.[75]

1. During cross-examination Mr Lawrence gave evidence that he watched a video when he returned to work as part of his return-to-work plan after receiving his first and final warning. Mr Lawrence’s evidence was that the video showed that things had changed from when he was an AO being that the AO’s are now trained to not get involved in similar situations.[76]

1. It was put to Mr Lawrence that as part of his return-to-work training, his manager reinforced the key messages of the training which clearly outlined the expectations on employees when faced with situations that they perceive as dangerous or perhaps threatening and that expectation is that Metro required people to walk away[77]. Mr Lawrence argued that the video set the expectation that they do not get involved and that was what he had initially tried to do and his actions would be dependent on different circumstances. His evidence was that if he’d received his coffee right at the particular moment when Mr R approached him, he would have walked away from Mr R who was standing there with no mask on. However, he was still waiting for his coffee to arrive and at that stage, Mr R was in close proximity and nothing changed until he made the threats towards Mr Lawrence.[78] Mr Lawrence’s evidence was at that he had no time from that moment on to turn and walk away from the threat.[79] Mr Lawrence evidence was that if he had moved away it was highly likely Mr R would have followed him.[80]

1. During cross-examination it was also put to Mr Lawrence that Mr R had made no physical threat to Mr Lawrence and therefore he could not be justified in his actions. It was also put that Mr Lawrence’s actions were a disproportionate response to the alleged verbal threat to kill him. Mr Lawrence’s evidence was that “When someone threatens you verbally and you don't know whether he’s going to take out that threat or not, I reacted with what I did. I wasn’t going to stand there and wait for him to do whatever he was going to do and that was why I'm justifying my actions at the time.” [81] Mr Lawrence’s evidence was that Mr R had threatened his life and that he took the threat seriously and had “no time to turn around and say, “Hang on a minute, mate, I'll just go get a coppie or a policeman while you just wait there”.[82]

1. In his witness statement Mr Lawrence’s evidence is that Mr R was standing shoulder to shoulder when he asked Mr R to move away. During cross-examination Mr Lawrence explained he meant this figuratively and pressed that Mr R was within a distance of less that the required 1.5 meters and at a distance of only a couple of feet.[83]

1. Shortly after the incident Mr Lawrence gave a statement to police.[84] The statement to police was essentially the same as Mr Lawrence’s account given in his witness statement.

1. After the incident Mr Lawrence obtained two Metro Trains Communication’s regarding Mr R., the first being a KALOF dated 22 May 2020 and the second an email dated 13 August 2020. Mr Lawrence says he was not previously provided with either the KALOF or the email.[85]  The KALOF provides amongst other information details on how to deal with Mr R if approached which includes keeping a safe distance, alerting PSOs, contacting triple zero and advising the security operations centre. The email advises that the circumstances of Mr R being a “continuing nuisance” at Flinders Street station has been reported and that two transit Sargents were being tasked with monitoring incidents involving Mr R.[86]

1. The 22 May 2020 KALOF is headed “Confidential Information for the attention of Authorised Officers, Station Staff and Passenger Delivery Only”. The notice provides that Mr R is known for “recent instances of anti-social behaviour, including begging, indecent exposure and making threats of physical harm to Authorised Officers (AOs) at Flinders St Station and Southern Cross Station.[87]

1. Mr Lawrence’s evidence is that after the incident he was too stressed to continue to work and although he was offered a taxi he took the train home to avoid talking to the driver about what had occured.[88] The next day Mr Lawrence received a call from Mr Lajoie. Mr Lawrence recalls Mr Lajoie telling him not to come to work and take the day off and he would get back to him. Mr Lawrence then made a tele-appointment with his doctor.[89]

1. On 11 August 2020 Mr Lawrence received an email and letter from Mr Lajoie requesting that he attend a meeting at 11:30am on 14 August 2020 and notifying him that he was suspended with pay pending an investigation into the 9 August 2020 incident. The letter sets out two allegations, the first being that Mr Lawrence pushed a member of the public with apparent excessive force and the second being that after the member of the public reacted to being pushed by stepping forward towards Mr Lawrence, Mr Lawrence escalated his physical response by grabbing the member of the public by the neck and pinned him to the ground.[90]

1. On 12 August 2020 Mr Lawrence collected a Certificate of Capacity from his doctor which indicated that as a consequence of the 9 August 2020 incident he had been diagnosed as suffering from ‘acute situational crisis causing anxiety and depression’.[91] On that same day Mr Lawrence sent a letter to Mr Gary Wegert, the General Manager of Operations. In his letter Mr Lawrence expresses his disappointment and states amongst other things that through no fault of his own he is being threatened with termination even though he was the victim through the negligence of several individuals within metro management.[92]

1. On 14 August 2020 Mr Lawrence completed a Workcover claim which was subsequently opposed by Metro trains. Mr Lawrence says that he received a rejection letter which cited that his mental injury was due to management action taken on reasonable grounds and in a reasonable manner.[93]

1. Mr Lawrence’s evidence is that he attended the meeting on 14 August 2020 and was offered a support person. He elected to take Mr Brevan Hamling, Occupational Health and Safety representative with him to the meeting which was also attended by Mr Lajoie. Ms Nikki Maloney, HR and Mr Dave Hutton, Group Manager Southern attended the meeting via video conference.[94]

1. During the 14 August 2020 meeting Mr Lawrence was shown video footage of the events that occurred on 9 August 2020. Mr Lawrence says he responded to the allegations during the meeting and argued that the events would not have happened if Metro Trains had done their job. Mr Lawrence’s evidence is that he had formed the view that Metro Trains had not provided him with the confidential notice about Mr R and that nothing had been done about Mr R’s behaviour for three months, he was not wearing and mask and should not have been in the area which he says is supposed to be secure for the public and employees. Mr Lawrence’s evidence is that he was in fear for his safety and acted in self-defence. Mr Lawrence also gave evidence that he explained during the meeting that the situation unfolded quickly and he did not know what Mr R was capable of doing. As a result of the altercation Mr R’s bag split open and his drug paraphernalia of needles and a spoon scattered across the floor. Mr Lawrence also says whilst restraining Mr R he could feel spittle from Mr R on his face and sustained a cut on his finger. Mr Lawrence subsequently undertook a Hepatitis A, B and C and HIV test.[95]

1. On 17 August 2020 Mr Lawrence says he engaged a lawyer who wrote to Metro Trains that same day. Mr Lawrence says within an hour or so of Metro receiving that letter Metro disabled messages and emails to his work phone was disabled.[96] 

1. On 18 August 2020 Mr Lawrence received two phone calls, one to his work phone and one to his personal phone. Mr Lawrence did not engage either of the phone calls. That same day Mr Lawrence received a termination letter by email. The letter states that Mr Lawrence was found to have breached the Metro values and behaviours, Code of Conduct and Safety Policy and that his actions had the potential to cause harm to both Mr Lawrence and did cause harm to Mr R which included a cut to his head which required ambulance attendance.[97]

Summary of evidence of Mr Hamling

1. Mr Hamling’s evidence is that he attended the 14 August 2020 meeting with Mr Lawrence and during that meeting Mr Lawrence indicated he had written a letter to Mr Wegert and that he relied on that letter as his response to the allegations and that “he had nothing more to say”.[98]

1. Mr Hamling gave evidence that during the meeting he viewed the CCTV footage with Mr Lawrence. Mr Hamling says the CCTV footage was very grainy and was taken from a long way away so one could not see much. Mr Hamling’s evidence is that he had formed the view that Metro were uninterested in anything that Mr Lawrence had to say as they had already made up their minds.[99]

Summary of evidence of Ms Maloney

1. At the time of making her statement Ms Maloney had worked for Metro Trains for a period of 14 months. Ms Maloney’s primary role was to conduct workplace investigations and implement the Metro Counselling and Disciplinary Procedure when required.[100] Ms Maloney ceased employment with Metro Trains on 6 January 2021.[101] 

1. Ms Maloney’s evidence is that she was advised in a telephone call with Mr Lajoie on 10 August 20200 that Mr Lawrence had been involved in a physical altercation with a member of the public the previous day. Mr Lajoie informed her that he had viewed the CCTV footage of the incident and Mr Lawrence had been made non-active, and sought her assistance regarding the engagement of the counselling and disciplinary procedure.[102]

1. Ms Maloney says she requested Mr Lajoie provide her with any relevant documentation related to the incident and the following day he emailed her a copy of the People Safety Incident Report completed by Mr Copeland, a station staff member and a statement by Mr Michael Fusco, another station staff member who witnessed the incident. Ms Maloney was also provided with the hand written statement completed by Mr Lawrence on 9 August 2020, a driver ‘non-active’ advise and a statement by the Duty Manager, Ms Faye Stamos completed on 9 August 2020.[103]

1. Ms Maloney’s evidence was that she reviewed the information provided and viewed the relevant CCTV footage provided to her by Mr Lajoie.[104] Ms Maloney’s account of the events was that Mr Lawrence and Mr R appeared to enter into a verbal discussion when Mr Lawrence lunged towards Mr R and pushes him with what appeared to be excessive use of force. Ms Maloney says the CCTV footage shows Mr R stepping forward and in response Mr Lawrence is seen to escalate the situation by grabbing Mr R by the neck and pinning him down. Ms Maloney’s evidence is that the footage shows Mr R being pinned to the ground for a considerable length of time.[105]

1. Ms Maloney’s evidence was that based on the information provided and the CCTV footage there was enough information to warrant a formal disciplinary investigation.[106] Ms Maloney did not make any inquiries into how Mr R became present at the station or any inquiries with the police or other attendees at the scene of the August incident as she did not think they were relevant to the circumstances.[107]

1. Ms Maloney’s evidence is that Mr Lawrence was sent a letter that referred to his previous relevant history including the final warning issued in October 2019 for a physical altercation with passengers.[108]

1. Ms Maloney’s evidence is that the Carnegie incident involved Mr Lawrence instructing someone to enter the driver’s cab and conduct a ‘citizen’s arrest’ and also assaulting another passenger standing on the platform.[109] Ms Maloney gave evidence that Metro Trains had seriously considered terminating Mr Lawrence at the time however a decision was made to continue his employment provided there were no further physical altercations or breaches of the relevant policies or procedures including L3-TSD-PRO-017 Cab Unattended Procedure, L1-OPSPRO-005 Management of Ill Passengers and Medical Emergencies, L0-SQE-PRO-053 Reactive Track Access Procedure, L2-TSD-PRO-029 Cab Travel Authority Procedure and the Code of Conduct and Values and Behaviours. Ms Maloney considered the final warning relevant to the events alleged because they both involved a physical altercation/assault and both incidents were in breach of Metro’s Code of Conduct and Values and Behaviours.[110]

1. Ms Maloney’s evidence is that she found Mr Lawrence’s response (in the email he sent to Mr Wegert), in which he appears to blame management concerning, and it was her view that Mr Lawrence was unable to see any issues with his actions.[111]

1. Ms Maloney attended the 14 August 2020 meeting by video conference. Ms Maloney’s evidence is consistent with Mr Hamlin’s in that Mr Lawrence stated his email to Mr Wegert was his response and he had nothing further to add.[112] The CCTV footage was shown to Mr Lawrence. Ms Maloney’s evidence is that Mr Lawrence told her he had been verbally threatened by Mr R and that Metro had failed in its duty of care by allowing the member of the public to enter the concourse.[113]

1. In response to Mr Lawrence’s contention that Metro had failed in its duty of care by allowing Mr R to enter the concourse Ms Maloney submits that Mr Hutton responded telling Mr Lawrence that the network is a public space and drivers are trained and expected not to interact and remove themselves from danger in such situations. Ms Maloney submits that she remined Mr Lawrence that he had received additional training in 2019 on how to de-escalate situations like the incident that occurred at Flinders Street Station. Ms Maloney’s evidence is that Mr Lawrence told her he had no other option available as he was acting in self-defence.[114]

1. Ms Maloney’s evidence is that at the end of the meeting she met with Mr Hutton and they reviewed the CCTV footage and discussed Mr Lawrence’s responses to the allegations. They also obtained further CCTV footage which she says showed Mr Lawrence punching Mr R in the face.[115] Ms Maloney’s evidence is that she and Mr Hutton considered Mr Lawrence’s responses to be inadequate and his failure to acknowledge any wrongdoing deeply concerning, and that they felt this heightened the probability of a reoccurence. Ms Maloney submits they considered Metro’s values, the seriousness of the fighting and the potential harm Mr Lawrence’s actions could have, and did, cause. She also considered Mr Lawrence’s previous warning and that he had undergone training. Ms Maloney’s evidence is that she and Mr Hutton both agreed that summary dismissal would be recommended as an appropriate outcome.[116]

1. Ms Maloney gave evidence that she was aware that a KALOF had been distributed indicating that Mr R among other things was known to make threats of harm and that he was a dangerous risk to staff and passengers. Ms Maloney’s evidence was that she also had knowledge that after the 9 August 2020 incident Metro sent an email to various officers and station staff informing them that they were concerned that Mr R’s “aggression is escalating and needs to be nipped in the bud”.[117]

1. During cross-examination Ms Maloney gave evidence that she had considered Mr Lawrence’s response to the allegations. Ms Maloney was asked what consideration she had given to the alleged threat Mr R had made to Mr Lawrence being the threat to kill him. Ms Maloney’s evidence was that she had considered it but was unable to give any particulars as to what decision had been reached about the allegation or how Mr Lawrence’s actions were assessed in light of those allegations.[118]

1. Ms Maloney’s evidence is that she was aware that Mr Lawrence submitted a work cover claim after he attended the meeting and it was her understanding that after an independent investigation the claim was denied. Ms Maloney’s evidence is that the work cover claim was viewed as a separate matter to the disciplinary process that was already underway.[119]

1. Ms Maloney’s evidence is that Mr Lawrence’s legal representative e-mailed a dispute notification on 16 August 2020. She says the dispute lacked any substance or detail and it was not clear what was being disputed. Ms Maloney’s evidence is that regardless the recommendation to terminate Mr Lawrence’s employment had already been made.[120]

1. Ms Maloney’s evidence is that on 18 August 2020, after multiple attempts by Mr Hutton to contact Mr Lawrence by phone, the termination letter was sent by e-mail to Mr Lawrence and was subsequently posted to his home address.[121]

Summary of evidence of Mr David Hutton

1. Mr Hutton is the Group Manager South. At the time of making his statement he had held that position for 21 months. Prior to this he held the position of Group Manager North. Mr Hutton’s primary role is to manage a team that supports Drivers in conducting their roles and ensure Metro’s policies and procedures are adhered to and risks are managed. [122]

1. Mr Hutton’s evidence is that on 9 August 2020 at 3:30pm he received a phone call from Mr Ross, Duty Manager. Mr Lawrence was present with Mr Ross during the phone call. Mr Hutton’s evidence is that Mr Ross informed him that Mr Lawrence had been involved in an altercation with a member of the public and that the member of the public had been taken away in an ambulance due to injuries he sustained during the altercation. Mr Hutton’s evidence is that during the phone call he was informed that Mr Lawrence was not physically injured. He says he heard Mr Stamos (another Duty Manager) who was present during the call offer to take Mr Lawrence to the doctors, Mr Lawrence declined. Mr Lawrence was offered EAP assistance however he also declined that offer. Mr Lawrence was also offered a taxi home however he elected to take the train. Mr Hutton requested that Mr Ross arrange for the CCTV footage to be made available for viewing the next day.[123]

1. Mr Hutton viewed the CCTV footage the following day. Mr Hutton’s evidence is that he formed the view that the CCTV footage clearly shows Mr R slowly approaching Mr Lawrence at the Spanish Donuts store on the concourse, Mr R appears to be asking Mr Lawrence something. Mr Lawrence is seen to use his hands to suggest Mr R go away, “then Mr Lawrence lashes out, is seen to forcefully push the male person and put his hand to his neck/face area. Mr Lawrence appears to drag him to the ground by his hair and punch him when he is on the ground. Mr Lawrence can be seen holding the male person on the ground.  The male person appears to have hit his head on a glass shop front or the edge of the shop front.”[124] Mr Hutton’s evidence is that Mr R appears to remain non-aggressive throughout the incident.

1. Mr Hutton submits that Mr Lawrence was made non-active that same day, which means he was sent home on pay for the remainder of the shift. The following day Mr Lawrence was stood-down pending an investigation.[125]

1. Mr Hutton attended the meeting on 14 August 2020 by video. Mr Hutton’s evidence is that he ran the meeting jointly with Ms Maloney. Mr Hutton’s evidence is that Mr Lawrence initially refused to provide a response to the allegations and instead relied on the email sent to Mr Wegert. Mr Hutton’s evidence is after being informed he was obligated to participate and in the absence of his input they would make a determination based on what information they had, Mr Lawrence then participated.[126]

1. Mr Hutton’s evidence is that it was put to Mr Lawrence that the CCTV footage did not support that he felt threatened and that he appeared to be the antagonist. He states that Mr Lawrence responded by affirming he felt threatened. Mr Hutton’s evidence is that during the meeting Mr Lawrence responded to his questions and stated he pushed Mr R because he wanted to create distance between himself and Mr R. Mr Hutton says he asked Mr Lawrence what alternatives there were and Mr Lawrence responded that in the moment his only option was to push Mr R.[127]

1. Mr Hutton’s evidence is that he suggested to Mr Lawrence that he could have walked away and sought assistance from other staff. Mr Hutton says Mr Lawrence’s response was that he was fearful of Mr R at the time.[128]

1. Mr Hutton’s evidence is that Mr Lawrence has been involved in three physical altercations during his time as Group Manager, the first being an altercation with another driver, the second at Carnegie and the third being the August 2020 incident.[129] Mr Hutton’s evidence is that Mr Lawrence had previously been issued with a first and final warning which states that he must ensure that he does not act aggressively towards or engage in physical altercations with colleagues or passengers.[130]

1. Mr Hutton’s evidence is that as an outcome from the first and final warning Mr Lawrence was provided with a comprehensive return-to-work plan which included a debrief by the Group and Depot Train Driver Manager on the incident and review and acknowledgement of all policies breached as a result of the incident. Mr Lawrence was also referred to the Employee Assistance Program Management Referral. Mr Hutton’s evidence is that Mr Lawrence was also trained in the “It’s just not worth it” Authorised Officer training designed to de-escalate interactions.[131]

1. Mr Hutton’s evidence is that he had formed a view from the CCTV footage of the August incident that Mr R was a placid person, with slumped shoulders and non-aggressive manner throughout. Mr Hutton’s evidence is that the KALOF was issued to station staff so they could try and monitor Mr R, it was not to ban him from entering the concourse which he says Metro do not have the ability to do.[132] Mr Hutton’s evidence during cross examination is that although he knew Mr R was a person of risk he made no other inquiries during his investigation into the incident other than to view the CCTV footage.[133]

1. During cross-examination Mr Hutton confirmed that the second CCTV footage which it is alleged Mr Lawrence punched Mr R was not shown to Mr Lawrence. Mr Hutton formed a view that Mr Lawrence had punched Mr R in the absence of putting that allegation to Mr Lawrence.[134]

1. Mr Hutton’s evidence is that at the end of the meeting Mr Lawrence was offered EAP assistance and encouraged to reach out to his support person, Mr Hutton or Mr Lajoie for support if necessary.[135]

1. Mr Hutton says after the meeting he conferred with Ms Maloney and they reached the decision to recommend terminating Mr Lawrence’s employment. He subsequently watched CCTV footage which provided a view from another angle and says the footage appears to show Mr Lawrence punch Mr R in the face once he is on the ground. The allegation that Mr Lawrence punched Mr R was not included in the allegations letter but was included in the termination letter.[136]

Summary of evidence of Mr Alfio Barbagallo

1. Mr Alfio Barbagallo is a Compliance and Operation Support Manager for the Authorised Officers division for Metro Train and at the time of making his statement had worked in the role for seven years. Mr Barbagallo has worked in the Authorised Officers division for approximately 22 years. Mr Barbagallo’s role is to ensure Authorised Officer compliance and includes managing a team of investigators that conduct investigations into incidents on the network and analysing the actions taken by Authorised Officers in accordance with relevant training, policies and procedures.[137]

1. Mr Barbagallo’s evidence is on 21 October 2020 he met with Ms Maloney in relation to the physical altercation that occurred on the 9 August 2020 between Mr Lawrence and Mr R.[138]

1. Mr Barbagallo’s evidence is from the time Mr Lawrence became employed as a Trainee Driver his accreditation and “powers” as an Authorised Officer were revoked. At the time of the incident Mr Lawrence no longer possessed any statutory powers under the Transport (Compliance & Miscellaneous) Act to carry out the duties as an Authorised Officer.[139]

1. Mr Barbagallo’s evidence is that AO training supports the notion that an AO should deescalate the situation verbally if possible, however if the threat of violence is present and there is a risk of harm to oneself, they should move away to a safe area and subsequently call the police. Force to defend oneself is legally allowable for any person (within the Crime Act section 462A), however there needs to be lawful justification. Mr Barbagallo’s evidence is this is taught to the AO’s during their training.[140]

1. Mr Barbagallo’s evidence is that he viewed the CCTV footage and formed the view that Mr Lawrence’s actions did not constitute self-defence.[141] He formed this view in the absence of making a decision as to whether or not Mr R had made a threat to kill Mr Lawrence.[142]

1. Mr Barbagallo’s evidence was that using force against a person would be considered self-defence if they believed they were in danger however the force used must not be disproportionate or excessive as was the case in Mr Lawrence’s circumstances. Mr Barbagallo’s evidence is that if the threat of harm was present a reasonable person would have stepped away from the situation or potentially push the threat away. Mr Barbagallo states that the CCTV footage shows Mr Lawrence lunging forward and tackling Mr R to the ground and effectively arresting him. Mr Barbagallo’s evidence was that perhaps at the time Mr Lawrence was an AO he may have been taught to restrain by taking someone to the ground and then restraining them.[143]

1. Mr Barbagallo’s evidence was that in a situation that requires a response they would use a de-escalation technique on a “reasonable person” by trying to reason with them. His evidence was however “if you’ve - you know, you’re about to be hurt, you do everything you need to to stop the threat”.[144] Mr Barbagallo’s evidence was that you may even probably use force depending how scared you were at the time of the incident.[145]

1. Mr Barbagallo’s evidence is that Mr Lawrence would be well aware of the powers of an AO and that of a citizen of the state because of his prior training. Mr Lawrence was also aware that Mr R had a prior history of making threats against the public and staff and says that this in itself would cause a reasonable person to back away if they feared harm rather that engaging in any conversation let alone a physical altercation.[146]

Consideration

Harsh, Unjust Unreasonable

1. Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

“387      Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)       whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)       whether the person was notified of that reason; and

(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)       any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)       if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)       the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)       the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)       any other matters that the FWC considers relevant.”

1. The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.[147]  McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[148]

1. I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

1. The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[149] The reason for the dismissal should be “sound, defensible and well founded”[150] and should not be “capricious, fanciful, spiteful or prejudiced.”[151]

1. The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[152] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[153]

1. In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[154] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[155]

1. Mr Lawrence was a long serving employee of Metro Trains. In his role Mr Lawrence has been exposed to a number of traumatic events that have had an adverse effect on his well- being. On 10 February 2019 Mr Lawrence received a letter complimenting his actions which involved removing a fallen tree over the Cranbourne line. Mr Lawrence was complimented because his actions resulted in services continuing to be run unencumbered. Mr Lawrence was also commended for his conduct on 13 July 2019 for actions that were “directly in line with Metro’s goal of Zero Harm”.

1. Mr Lawrence does not deny being involved in an incident at Carnegie Station in 2019 which led to a first and final warning. There is no contention between the parties that Mr Lawrence was responding to a member of the public who had threatened suicide. The warning was issued for a failure to comply with a number of Metro Train’s policies and procedures which included letting someone enter the train cabin without authorisation and his aggressive behaviour which involved restraining a member of the public. It was found that whilst Mr Lawrence was enforcing the restraint the member of the public had repeatedly said that he “couldn’t breathe” whilst Mr Lawrence was on top of him. Mr Lawrence stayed on top of the member of the public because he believed otherwise.

1. Mr Lawrence had stopped his train and the member of the public was on the train track at the time. It is not surprising after having been involved in other fatalities, specifically one involving the suicide of a young female, that Mr Lawrence acted to remove the individual from the track breaching policy. I accept that Mr Lawrence was placed in a difficult position which involved choosing between a human life or complying with Metro policies or procedures. Mr Lawrence chose to save a human life which he says warranted non-compliance. I accept that it was a difficult decision to make and had that been the end of the situation, I would not have condoned a first and final warning. However, it was Mr Lawrence’s conduct that took place after removing the individual from the track that was most disconcerting and in my view justified the first and final warning. Mr Lawrence went beyond restraining the member of the public and his actions extended to being involved in a separate physical altercation involving other members of the public which he voluntarily entered into without provocation. Further it is concerning that although Mr Lawrence is aware that his actions being that he breached policy had the possibility of putting himself and others at risk of harm, he could not guarantee he would not make the same choice again. I address this concern further in my decision to issue remedy.

1. The evidence supports a finding that Metro took into account Mr Lawrence’s previous good history and his history involving previous fatalities prior to issuing Mr Lawrence with a first and final warning. The warning letter states that Mr Lawrence gave a commitment to re-familiarising himself with all Metro policies and procedures to ensure full compliance in the future. Mr Lawrence had also acknowledged that if something of a similar nature should occur again he would accept any outcome that Metro Trains deemed appropriate. It was on that basis Metro made the decision to not terminate Mr Lawrence’s employment and issue him with a first and final warning. After considering the evidence including the CCTV footage of the Carnegie incident, I am satisfied that the first and final warning was justified and of relevance to the consideration of whether or not to dismiss Mr Lawrence.

1. In the letter sent to Mr Lawrence notifying him of his termination, Metro outlined two allegations they say were substantiated. The first being that Mr Lawrence physically pushed a member of the public using excessive force and the second being that as part of the altercation, Mr Lawrence escalated the situation by grabbing the individual by the neck and pinning him to the ground. The termination goes on to state the following:

“In isolation this conduct is sufficiently serious as to warrant the consideration of terminating your employment as your actions have breached a number of Metro Trains’ policies and procedures. However, in addition, further information has become available which shows you also hit the member of the public in the face after pinning him to the ground.” 

1. The termination letter relies on three reasons for terminating Mr Lawrence. I will deal with the first two allegations before turning to the third allegation being that Mr Lawrence punched Mr R in the face whilst he was being restrained on the ground.

1. It is not in contention that on 9 August 2020 Mr Lawrence was approached by a known drug user who was also known to become aggressive and make threats of physical harm when requested to stop begging. Although Mr Lawrence had previously encountered Mr R and knew he was a known nuisance I accept that he had not been made aware of the KALOF that had been distributed warning Authorised Officers that Mr R had become increasingly aggressive and was making threats of physical harm. Mr R was in a public space at the time of the incident. It was the role of the PSO’s, AO’s and the police to monitor and act should Mr R pose a threat, there is no evidence to suggest that his presence in the public space was being monitored at the time of the incident even though he was a known nuisance who posed a threat. I agree with Mr Lawrence’s submission that had Mr R been supervised or monitored, then there may have been an opportunity to intervene prior to the incident occurring.

1. During proceedings Ms Maloney gave evidence that she had formed the view that Mr R had not escalated the situation by making threats to kill, it was Mr Lawrence who escalated the situation by physically engaging with Mr R. I have reached the conclusion that Ms Maloney had formed that view solely from watching the CCTV footage and had not taken Mr Lawrence’s response to the allegations into account fully. It is evident that Ms Maloney failed to reach a concluded view as to the probability that Mr R had made a threat to kill Mr Lawrence. I do not agree with Ms Maloney that Mr Lawrence’s response to Mr R was the single cause for the escalation of the situation. For the reasons set out below I have formed the view that Mr Lawrence was simply responding instinctively to an already threatening situation.

1. Mr Lawrence’s evidence was that he made repeated requests for Mr R to leave him alone, instead Mr R threatened him. I accept Mr Lawrence’s version of events in this matter. They are consistent with the account he gave in his police statement shortly after the incident occurred, which appears to have been largely ignored by Ms Maloney. Neither Ms Maloney or Mr Hutton made a determination as to whether or not it was probable that Mr R had made a threat to kill Mr Lawrence even though this had been presented to them by Mr Lawrence as a mitigating circumstance. Both Mr Hutton and Ms Maloney completely side stepped this issue and their decision was made in the absence of giving the threat Mr Lawrence received any consideration.

1. The CCTV footage, which is absent audio, supports Mr Lawrence’s version of events which was provided to police shortly after the incident occurred. The CCTV footage shows Mr Lawrence was not engaging in eye contact with Mr R, he uses hand gestures indicating Mr R should leave. This occurs on several occasions and is consistent with Mr Lawrence’s evidence that he had requested on several occasions for Mr R to leave him alone. The CCTV footage then shows Mr R leaning forward and at this time he appears to say something to Mr Lawrence which immediately receives what I would describe as an alarmed response from Mr Lawrence. It is at this point Mr Lawrence reacts to Mr R, it is therefore plausible that Mr R had made a threat to kill Mr Lawrence. I accept Mr Lawrence’s evidence that Mr R had made a threat to kill him at this stage of their interaction. I am therefore satisfied having determined that a threat to kill had been made that Mr Lawrence acted instinctively in order to protect himself by forcefully shoving Mr Lawrence away. 

1. Mr Hutton’s evidence is that the key consideration in reaching the decision to terminate Mr Lawrence was that he had the opportunity to distance himself from the threat, which is what they expected him to do.[156] With this I disagree. I agree with Mr Barbagallo’s evidence that although this is the preferred course of action it is not always practical to do so. It is all very well of Mr Hutton to propose such a course of action however his preferred course was not entirely practical in the circumstances where the events happened very quickly and Mr Lawrence was being required to make a split second decision whilst being threatened. 

1. I do not agree with Mr Hutton or Ms Maloney’s evidence that Mr R was passive and not aggressive. On close analysis of the CCTV footage after being pushed away Mr R can be seen planting his back foot whilst lunging forward with purpose. It is clearly evident from the CCTV footage that Mr R lunges forward in an aggressive manner and Mr Lawrence again acts instinctively to defend himself. If Mr Lawrence had turned his back to run away there is every chance that he could have put himself at further risk. I accept Mr Lawrence’s evidence and agree that the CCTV footages shows Mr Lawrence trying to restrain Mr R who is resisting restraint.

1. One must consider the actions of Mr Lawrence and Mr R in the context of the evidence provided. It is not in contention that Mr R was a known aggressor who was making threats of physical harm, this is consistent with the evidence of Mr Lawrence who was not aware of this at the time. I am not persuaded that Mr Lawrence was using unwarranted or unnecessary excessive force in circumstances where he was faced with a known aggressor who had made a threat to kill him. 

1. During cross examination Mr Hutton and Ms Maloney were asked on a number of occasions what consideration they had given to the evidence that Mr R was a known aggressor, he was not wearing a mask and had made threats to kill and what weight they had attributed to those factors in reaching their decision. It was also put to them they had failed to consider Mr Lawrence’s actions in light of the circumstances being the Covid-19 situation and the controls and risk to exposure in the public transport system. Mr Hutton and Ms Maloney both responded that they had considered those factors however they were unable to provide any details as to when in the process those factors were considered, what weight was given to the evidence on those factors or what bearing those factors had on their decision. There is no evidence before me and I am not persuaded that Ms Maloney took any of these factors into consideration before making her decision to dismiss Mr Lawrence.

1. The evidence supports a finding that Mr Lawrence’s actions up to this point of time were justified taking into account all of the circumstances which included that he had been faced with an obvious threat, the person initiating the threat was not wearing a mask and there was at the time a heightened level of concern that was affecting Mr Lawrence along with the many others in the rail network and his sense of security, being the Covid-19 situation. It is for those reasons I am not persuaded the allegations relied on by Metro rail being that Mr Lawrence physically pushed a member of the public with excessive force and escalated the situation by grabbing Mr R around the neck, when considered in the context of the surrounding circumstances, form a valid reason for Mr Lawrence’s dismissal. 

1. I now turn to the third allegation. After meeting with Mr Lawrence on 14 August 2020 Mr Hutton and Ms Maloney viewed a secondary piece of CCTV footage. After viewing the footage they formed the view that Mr Lawrence had punched Mr R in the face. It is not in contention that Mr Lawrence was at no stage prior to his dismissal presented with the allegation nor was he afforded an opportunity to review the CCTV footage and respond to the allegation yet it formed part of the decision to dismiss him.

1. The termination letter outlining the decision to dismiss Mr Lawrence relies on all three allegations being substantiated and form part of Metro Trains argument that there was a valid reason for Mr Lawrence’s dismissal. I have already determined that the first two allegations when considered in the context of all of the evidence do not form a valid reason for Mr Lawrence’s dismissal.

1. I now turn to the third allegation being that Mr Lawrence punched Mr R in the head causing injury. The decision that Mr Lawrence had punched Mr R in the head was made in the absence of Mr Lawrence being shown the CCTV footage from which the allegation arises, nor was he presented at any time prior to his dismissal with the allegation.

1. Mr Lawrence was shown the secondary CCTV footage during proceedings before the Commission. Mr Lawrence’s evidence is that he did not punch Mr R, he had instead lifted his hand to put his mask back on his face after it had fallen down. Mr Lawrence says Mr R’s hand came free and after adjusting his mask he reached down and continued to restrain Mr R.

1. I accept Mr Lawrence’s evidence that he lifted his hand to adjust his mask. There is a secondary action that show’s Mr Lawrence reaching down a second time. Mr Hutton and Ms Maloney formed the view in the absence of an opportunity for a response from Mr Lawrence that this action was a punch. Mr Lawrence evidence is that he did not punch Mr R, he was grabbing his hand which had come free in order to restrain him.

1. The CCTV footage shows two people moving very fast in a volatile situation. It would be naïve of any decision maker in the absence of audio and due to the visual quality of the CCTV footage to make a decision as to what had occurred without seeking further evidence from the alleged offender or any witnesses, which is exactly the error Ms Maloney and Mr Hutton made.

1. I note two particular sequences from the CCTV footage that have persuaded me that Mr Lawrence did not punch Mr R. The first being that after adjusting his mask Mr Lawrence lowers his hand in what appears to be an open palm position, this is inconsistent with an action used when punching someone. One would expect that Mr Lawrence would have formed a fist if he was intending on punching Mr R. The first sequence lends towards a finding consistent with Mr Lawrence’s evidence that he was grabbing Mr R’s hand to restrain him. The second sequence is that as Mr Lawrence pulls his hand away it appears he has a hold of something which he loses grip of, this appears to be Mr R’s arm or hand.

1. As previously stated due to the poor quality of the CCTV footage, absence of audio and any other witnesses, in order to determine on a balance of probability whether Mr Lawrence punched Mr R or not in the head one would need to consider footage in the context of the evidence provided. Nothing in the witness evidence of Mr Hutton or Ms Maloney has persuaded me that Mr Lawrence punched Mr R in the head. I have considered Mr Lawrence’s evidence and it is probable that after adjusting his mask Mr Lawrence reached down quickly to restrain Mr R who had managed to free his hand whilst Mr Lawrence adjusted his mask. Therefore, I make the finding that on the balance of probability Mr Lawrence did not punch Mr R in the face. Consequently, there was no valid reason for dismissing Mr Lawrence from his employment.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[157], and in explicit[158] and plain and clear terms.[159] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[160]

1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[161]

1. Mr Lawrence attended a meeting on 14 August 2020. During the meeting Ms Maloney and Mr Hutton put two initial allegations to him and provided him with an opportunity to respond. At the meeting, Mr Hutton indicated to Mr Lawrence that he would get back to him with a decision.[162] No further meetings were held with Mr Lawrence to advise that his responses had been considered and that Metro were considering terminating his employment. Ms Maloney confirmed in her evidence that Mr Lawrence had an opportunity to respond to the allegations however he was not afforded an opportunity to respond to the findings.[163]

1. Ms Maloney and Mr Hutton also gave evidence that after the meeting they obtained additional footage of the August incident. Ms Maloney’s evidence is that the footage showed Mr Lawrence punching Mr R in the face. Neither the footage nor the allegation were put to Mr Lawrence. Mr Lawrence at no time during the investigation process was given an opportunity to respond to the allegation. Ms Maloney’s evidence was that although the alleged punch did form part of the decision to dismiss Mr Lawrence, she considered the behaviour prior to the punch occurring enough on its own to terminate Mr Lawrence.[164] Ms Maloney’s evidence is inconsistent with the content of the termination letter. Metro did not rely on the initial two allegations on their own, the termination letter clearly states that Metro considered the behaviour identified in the first CCTV footage to be sufficiently serious enough to warrant “the consideration of terminating” Mr Lawrence’s employment, it goes on to provide that in addition, Metro had obtained further information which shows Mr Lawrence had hit Mr R in the face after pinning him to the ground. It is clear from the termination letter Metro had formed the view that Mr Lawrence had punched Mr R in the face and this essentially sealed the deal on the decision to terminate Mr Lawrence. Mr Lawrence at no time was afforded an opportunity to respond to the third allegation denying him the opportunity to respond.

1. The Agreement provides at clause 3.32 (b) that if Metro are going to investigate an allegation they will provide the employee with the allegation in writing and that an employee will have an opportunity to respond to the allegation. Clause 3.32.4 provides that all matter that are relevant to an allegation will be discussed with the Employee, and the Employee will be given sufficient time and the chance to respond to the allegation. Metro Trains actions were inconsistent with the requirements of its Enterprise Agreement.

Unreasonable Refusal of a Support Person – s.387(d)

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[165] With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.[166]

1. Mr Lawrence was afforded the opportunity to have a support person. This is a neutral consideration.

Warnings regarding Unsatisfactory Performance – s.387(e)

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.[167] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.[168] The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[169]

1. I found that Mr Lawrence had rightfully received a first and final warning for his conduct on a previous occasion for an incident at Carnegie station and it was relevant for Metro Trains to consider the previous warning when determining the disciplinary outcome of the August 2020 incident.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

1. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.[170]  Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.[171]

1. Metro Trains has a designated HR team with specialist resources. During the course of the investigation, Metro Trains was issued with a dispute notice which they chose to ignore and instead proceeded to hastily dismiss Mr Lawrence. The decision by Metro Trains to dismiss Mr Lawrence without putting all the allegations to him was in direct contravention of the Counselling and Disciplinary Procedure and a failure in procedural fairness on their part.

1. Further, I make the following observation about Ms Maloney’s process of investigation. The investigation lacked the basic principles of procedural fairness and natural justice. The investigation lacked a sophisticated approach and was conducted within a narrow framework that was bound to support a finding that was inconsistent with the evidence. An investigator must not be biased and should not form a view about the outcome before obtaining all of the relevant evidence. Once evidence is obtained, one must consider the relevant evidence in its entirety and make findings on the balance of probability. Ms Maloney was provided with crucial evidence that ultimately determined the relevance and significance of Mr Lawrence’s actions and chose not to make findings about that evidence which she ultimately had the responsibility. Essentially the result being that Mr Lawrence was not afforded procedural fairness and was denied natural justice.

Other Relevant Matters – s.387(h)

1. Mr Lawrence submits that the Commission should take into consideration that at the time of the incident that occurred on 9 August 2020 and Mr Lawrence’s dismissal Victoria was experiencing unprecedented conditions that had an effect on how the public viewed Public Transport. Mr Lawrence submits he had previously suffered ill health and was particularly concerned for his well-being during this period.

1. Mr Lawrence also submits that the Commission should take into account his previous workplace traumas which had adversely affected his mental well-being.

1. The factors submitted by Mr Lawrence were taken into consideration as part of the determination as to whether there was a valid reason for his dismissal and where noted will be addressed in the determination of remedy.

Finding

1. Taking into account all of the circumstances, I consider Mr Lawrence’s dismissal was harsh, unjust and also unreasonable. It therefore follows that Mr Lawrence was unfairly dismissed.

Remedy

1. The Commission may order a remedy of reinstatement or compensation. The parties made limited submission in regards to remedy. Metro Trains submits that should the Commission find against them they seek the opportunity to file further submissions on remedy. Directions will be issued requiring the parties to file submission addressing remedy.

COMMISSIONER

Appearances:

M Willoughby-Thomas for the Applicant
J Gillam from the Respondent

Hearing details:

2020.
Melbourne (by video link via Microsoft Teams):
November 23.

2021.
Melbourne:
February 1.
Melbourne (by video link via Microsoft Teams):
February 2.

[1] Form F2 – Unfair Dismissal Application and Exhibit A1 at [11]

[2] Exhibit A1 at [13] – [14]

[3] Ibid at [12]

[4] Exhibit R1 at [7]

[5] Ibid at [6]

[6] Exhibit A1 at [4] and Exhibit A3 at [17]

[7] Ibid at [4] and ibid at [17]

[8] Ibid at [4] and ibid at [17]

[9] Ibid at [4] and ibid at [18]

[10] Exhibit R1 at [6]

[11] Ibid at [7]

[12] Ibid at [8]

[13] Ibid at [9]

[14] Ibid at [10]

[15] Ibid at [11]

[16] Ibid at [12]

[17] Ibid at [12]

[18] Ibid at [13]

[19] Ibid at 14]

[20] Exhibit A1 at [6] – [7]

[21] AE508102

[22] Exhibit A3 at [11]

[23] Ibid at [9]

[24] Ibid at [5] and Attachment 1 and Exhibit A1 at [15]

[25] Ibid at [12] and ibid at [16] and [18]

[26] Exhibit A3 at [14]

[27] Exhibit A4 at [38] – [39]

[28] Exhibit A3 at [13] and Exhibit A1 at [17]

[29] Ibid at [13] and Ibid at [18]

[30] Exhibit A1 at [19] and Exhibit R1 at [46]

[31] Exhibit A3 at [50]

[32] Ibid at [53]

[33] Ibid at [54]

[34] Ibid at [55]

[35] Ibid at [56] – [58]

[36] Ibid at 59] – [60]

[37] Ibid at [61 - [62]

[38] Ibid at [63] – [64]

[39] Ibid at [65]

[40] Ibid at [68]

[41] Ibid at [69] – [72]

[42] Ibid at [73] – 77]

[43] Ibid at [88] – [91]

[44] Ibid at [98]

[45] Ibid at [99]

[46] Ibid at Attachment 9

[47] Ibid at [99]

[48] Ibid at [100] and Attachment 9

[49] Ibid at [101]

[50] Ibid at Attachment 9

[51] Ibid at [107] and Attachment 9

[52] Ibid at [103]

[53] Ibid at [104] – [105]

[54] Ibid at [106]

[55] Ibid at [108]

[56] Exhibit A4 at [14]

[57] Ibid at [13]

[58] Ibid at [15]

[59] Exhibit A3 at [15]

[60] Ibid at [17] and Transcript PN129

[61] Ibid at [17] and ibid PN129

[62] Ibid at [17] and ibid PN129

[63] Ibid at [17] and ibid PN129

[64] Exhibit A5, CCTV sequence of NM-6C

[65] Transcript PN129

[66] Ibid PN456 - 463

[67] Ibid PN465

[68] Exhibit A6, CCTV sequence of NM-16C

[69] Transcript PN136

[70] Ibid PN142

[71] Ibid PN399

[72] Ibid

[73] Ibid PN400

[74] Ibid PN402 - 403

[75] Ibid PN404 - 406

[76] Ibid PN497

[77] IbidPN526

[78] IbidPN529

[79] Ibid PN530

[80] Ibid PN532

[81] Ibid PN577

[82] Ibid PN579

[83] Ibid PN432-434

[84] Exhibit A3 at [19] and Attachment 2

[85] Ibid at [21] and Attachment 3

[86] Ibid at Attachment 3

[87] Ibid

[88] Exhibit A3 at [23]

[89] Ibid at [24] – [25]

[90] Ibid at Attachment 6

[91] Ibid at [25] and Attachment 4

[92] Ibid at [26] and Attachment 7

[93] Ibid at [26] – [27]

[94] Ibid at [30] – [31]

[95] Ibid at [33] – [41]

[96] Ibid at [44] – [45]

[97] Ibid at [46] and Attachment 8

[98] Exhibit A7 at [5]

[99] Ibid at [11] – [13]

[100] Exhibit R2 at [2]

[101] Transcript PN735

[102] Exhibit R2 at [3]

[103] Ibid at [3] and Attachments NM-1 – NM-5

[104] Ibid at [4]

[105] Ibid

[106] Ibid at [5]

[107] Transcript PN786

[108] Exhibit R2 at [5] – [6] and Attachment NM-7

[109] Ibid at [6]

[110] Ibid

[111] Ibid at [7]

[112] Ibid at [9]

[113] Ibid at [10]

[114] Ibid at [10] – [11]

[115] Ibid at [14]

[116] Ibid

[117] Transcript PN813-814

[118] Ibid PN951-953

[119] Exhibit R2 at [15]

[120] Ibid at [16]

[121] Ibid at [17]

[122] Exhibit R4 at [2]

[123] Ibid at [3]

[124] Ibid at [4]

[125] Ibid at [5]

[126] Ibid at [5] – [6]

[127] Ibid at [7] – [8]

[128] Ibid at [8]

[129] Transcript PN1041-1048

[130] Exhibit R4 at [9]

[131] Ibid

[132] Ibid at [10]

[133] Transcript PN1072 - 1082

[134] Ibid PN1172 - 1180

[135] Exhibit R4 at [11]

[136] Ibid at [12] – [13]

[137] Exhibit R5 at [2]

[138] Ibid at [3]

[139] Ibid at [7]

[140] Ibid at [8]

[141] Ibid at [9]

[142]Transcript PN1338-1341

[143] Ibid PN1349 and Exhibit R5 at [9] – [10]

[144] Ibid PN1352

[145] Ibid PN1353

[146] Exhibit R5 at [11]

[147] (1995) 185 CLR 410.

[148] Ibid at 465.

[149] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

[150] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

[151] Ibid

[152] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

[153] Ibid.

[154] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[155] Ibid

[156] Transcript PN1122

[157] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[158] Previsic v Australian Quarantine Inspection Services Print Q3730

[159] Ibid

[160] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73]

[161] RMIT v Asher (2010) 194 IR 1 at 14-15

[162] Transcript PN883

[163] Ibid PN888

[164] Ibid PN897

[165] Fair Work Act 2009 (Cth) s.387(d)

[166] Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542]

[167] Fair Work Act 2009 (Cth) s.387(e)

[168] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

[169] Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58]

[170] Fair Work Act 2009 (Cth) s.387(f)

[171] Fair Work Act 2009 (Cth) s.387(g)

Printed by authority of the Commonwealth Government Printer

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