Mr Ranjiv Pentiah v Sydney Trains

Case •

[2022] FWC 2921

•

28 DECEMBER 2022
[2022] FWC 2921

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Ranjiv Pentiah
v

Sydney Trains

(U2022/6005)

DEPUTY PRESIDENT CROSS

SYDNEY, 28 DECEMBER 2022

Application for an unfair dismissal remedy

  1. Mr Ranjiv Pentiah (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to his dismissal from employment with Sydney Trains (the Respondent/Sydney Trains). The Application was lodged with the Commission on 3 June 2022.

  1. I conducted a Directions Hearing in this matter on 13 July 2022. At the Directions Hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was listed for hearing on 4 and 5 October 2022.

  1. The parties complied with the Directions. In particular:

·   On 5 August 2022, the Applicant filed an Outline of Submissions, a statement of the Applicant, and a Statement of Mr Michael Marsland, the Station Duty Manager at Lidcombe station;

·   On 7 September 2022, the Respondent filed an Outline of Submissions, and witness statements of:

(a)Ms Carmen Berndt, Safety, Environment, Quality and Risk Professional with Sydney Trains;

(b)Mr Robert Joleski, Customer Area Manager, who at the times relevant to this matter, was responsible for Lidcombe station;

(c)Mr Christopher Walsh, Head of Service Experience, Customer Experience Branch, Sydney Trains;

(d)Mr Ashwin Arjun, Station Duty Manager at Auburn Station;

(e)Ms Nidhi Gupta, Station Duty Manager at Lidcombe Station;

(f)Mr Vijay Goyal, Customer Service Attendant, who was working at Mount Druitt station on 28 July 2021; and

(g)A member of the public known only as Mr AB, whose identity was anonymised pursuant to a decision of the Commission dated 16 September 2022.[1]

·   On 26 September 2022, the Applicant filed an Outline of Submissions in Reply, and a Statement of the Applicant.

  1. At the hearing on 23 June 2022, the Applicant was represented by Mr J Hart of the Australian Rail, Tram and Bus Union (the RTBU), and the Respondent was represented, with permission, by Mr M Watts of Counsel instructed by McCullough Robertson Lawyers. The conduct of the proceedings was assisted by the involvement of such experienced representatives.

  1. All deponents of the above listed statements were cross-examined. The determination of factual disputes is undertaken below where the evidence of each particular witness relates to the various allegations against the Applicant and the issues for determination.

  1. The Applicant presented as an individual who understood the impropriety of his conduct that led to his termination, but who sought to explain away that conduct by unacceptable and unsustainable excuses. Examples of those unacceptable excuses are outlined below where they relate to the various allegations against the Applicant, however I note that a consequence of the Applicant’s evidence is that where his evidence differed from any of the evidence of the Respondent, and where I have had to decide which contested evidence to accept, I have preferred the evidence of the Respondent’s witnesses, who gave candid and responsive evidence.

Background Facts

  1. The Applicant was employed by the Respondent as a Customer Service Attendant (CSA) from 14 February 2014 until his termination on 19 May 2022, though he was suspended while the investigation into his conduct occurred from 6 August 2021. The Applicant became a workplace Health and Safety Representative (HSR) from December 2020, and a Delegate of the RTBU from January 2021. He would thereafter routinely sign off work emails with the following signature block:

  1. The Applicant was originally from Mauritius but has lived in Australia for around 20 years. He completed University education in Australia and holds a bachelor’s degree in information technology which he obtained in the English language.[2] These facts gained prominence because the Applicant sought to claim that contents of emails he sent could be somehow explained by English not being his first language. The Applicant claimed he had a reasonable grasp of English verbally, but “written wise, I’m still learning.”[3] Having considered the numerous emails written by the Applicant, and his demeanour when giving evidence, I found that assertion to be entirely unconvincing. I find the Applicant had a sound grasp of both verbal and written English.

(a)       Applicant’s Disciplinary History

  1. The Applicant had a disciplinary history stretching back to 2017. The Applicant acknowledged that history but stated “some of them was unjustified.”[4] That history was of inappropriate behaviour towards customers and other employees.

  1. In 2017, just after Mr Joleski started as Customer Area Manager (CAM) of the Strathfield Group of stations that included Lidcombe, the Respondent received a number of complaints about the Applicant from customers and other staff. One particular tranche of complaints was recorded in a file note dated 21 November 2017, included the following content:

File Note:

Informal Discussion – Inappropriate behaviour and conduct Meeting Date: 10/11/17

Background:

Ranjiv P[e]ntiah has a history of inappropriate behaviour toward customers and employees. PCIP conducted in the past related his behaviour and conduct towards customers 25/03/2017
File Note: Inappropriate behaviour towards a customer. 2 incidents in one day. 13/04/2017

File Note: Informal discussion about social behaviour

Recent Customer Feedback Summary:

24/09/2017 Feedback from the Station Duty Manager on duty about Ranjiv’s inappropriate behaviour and comments. Specifically comments in front of an another Station Duty Manager: You help the cleaners too much and because of this they expect the same from everyone else. Ranjiv advised the SDM could be in big trouble about from management and the unions if this continues.

12/10/2017 Customer Feedback Reference No: 00410969 Customer Story:

I was having a conversation with a female member of your staff with regards to an event being held at Olympic Park. During my conversation, another Indian male staff member rudely interrupted. He told me to shut up and to keep walking. I explained to him that I was not talking to him and I did not appreciate him being rude and interrupting my talk. He proceeded to abuse me, shouting and harassment me, repeatedly telling me to shut up and keep walking. I asked for his name so I can make a complaint and he refused to give it to me. He said I am welcome to complain as nothing will be done about it. I have never had such awful customer service in my life. Even other customers were appalled at his behaviour. I would like something to be done about this as no customer should be treated like that.

19/10/17 14:53 Customer sends a message confirming the employee she was referring to was working on platform 3, holding a flag for departure trains. Roster confirmed: Ranjiv Pentiah was working on Pl2&3.

23/10/17 Customer called back 14:23 hrs, described employee as young male, Indian background, 20 to 30 years old, wearing sunglasses and a cap, she sees the employee at Lidcombe quite frequently, one of the regular employees.

17/10/17 Customer Feedback Reference No: 00413306 Customer Story:

Caller states today 17/10/17 that he was in St John's ambulance uniform and he is volunteering today with another person and has been informed by his superiors they can travel free on public transport. Caller states Lidcombe Station Staff member (refer comments) at approx. 08:00am on Tuesday was very aggressive towards them and experience wasn't very pleasant and eventually staff member left them out at Lidcombe Station after 10 minutes. Caller states he wanted to report incident as not customer service orientated and just the overall experience today. Caller states he caught train from Chatswood. Caller states please call him asap.

Response provided by the employee.

Discussion:

Discussed the recent customer feedback in detail, the inappropriate behaviours demonstrated over time towards customers and employees. Also discussed the need to be aware that the reputation of Sydney Trains is impacted by his actions at work. Ranjiv acknowledges he has improved over time and acknowledges the areas for improvement.

Ranjiv explained about the challenges when working on special events, people not willing to move on and causing crowding issues. Ranjiv believes he is following ‘company policy’ and is not rude with customers. He believes managers do not provide support for employees who try to follow the policies and procedures.

Ranjiv highlights he hasn’t had any complaints for a long time and is never rude or aggressive to customers.

Outcome:

Reminded Ranjiv of his responsibilities under the Code of Conduct specifically section 3. Staff Responsibilities:

As an employee of Sydney Trains, Ranjiv, must:

·     Treat our customers and colleagues fairly, consistently and with respect

·     Behave in a lawful, professional and reasonable manner and always act in the best interest of Transport

·     Adhere to our Customer Service Principles and SPACE Behaviours

If you continue to fail to meet conduct standards, you will be progressed to the next step of the PCIP Procedure for failure to meet the required performance standards.

Follow up discussion in 3 months’ time, by 8 February 2018.

  1. In December 2017 a further incident of alleged harassment/intimidation from a co-worker was received and investigated. Also in December 2017, Mr Pentiah raised by email concerns about shift and rostering arrangements. His email, sent to more than the person to whom he directed his concern, was as follows:

Hi Everyone,

Since Mr Robert Joleski have advise duty manager at lidcombe that he doesn't want me to act as team leader during the special event, I would like that afternoon shift on 1st January 2018 to be removed from my roster. I will have my PHNW please. It Looks like l am been racially targeted by my CAM after I raised my concerns about so many things in the past. So if anyone of you guys are reply to my email please Cc Trent my union delegate thank you.

  1. Mr Joleski responded to the above email as follows:

Hi Ranjiv,

I am quite concerned about your comment. I have not informed any manager nor RASC that you should not act as a Team Leader.

This could be related to received feedback from 2 employees who recently worked at Lidcombe Station about your behaviour while you acted as a Team Leader.

I was planning to meet with you in the new year to discuss this with you.

Just tried to contact you, give me a call if you wish to discuss this further. To maintain privacy, I purposely removed the other email recipients in your email.

Shared my response with Nyrelle Mccarthy HR Business Partner, Jasmin Streimer, Senior Workplace Relations Consultant and Trent Hunter as your union representative.

  1. On 11 January 2018, Mr Joleski received another complaint from a colleague of the Applicant. Mr Joleski sought to conduct a formal counselling session, however that could not take place until 23 January 2018 when the Applicant could have a union representative, Mr Hunter, present. Mr Joleski emailed to the Applicant the Dignity and Respect in the Workplace Procedure. In the meeting the Applicant was placed on a formal performance conduct improvement plan (PCIP). The PCIP noted the Applicant’s history of inappropriate conduct towards customers and employees, and required compliance with the Respondent’s Code of Conduct and Dignity and Respect in the Workplace Procedure. The Applicant did not sign the PCIP in the section titled “Additional Employee Comments” he commented:

I don’t agree with the process, since I am following the organisational policies and the Cos\de of Conduct. I believe I am doing the right thing. Ranjiv intends to escalate this further.

  1. In February 2018, the Respondent had to address two further incidents of workplace conflict involving the Applicant, and further correspondence was exchanged with Mr Hunter. A further meeting with the Applicant and Mr Hunter occurred on 22 February 2018. That meeting was summarised in an email sent to Mr Hunter and the Applicant on that day, which was as follows:

This morning, Thursday, 22/02/18 at 09:00 hrs, I met with you to discuss the ongoing workplace conflict and personality clashes with other employees. Trent Hunter, Union Organiser also attended the meeting.

Background:

Concern about the ongoing workplace conflict and personality clash between Ranjiv and other employees working at Lidcombe and the urgent need to address this. Ranjiv Pentiah has a long history of inappropriate behaviour and conduct towards both employees and customers. Following the formal PCIP meeting on 21/01/2018, 2 more incidents have occurred which has created further emotional stress to employees at Lidcombe Station. The purpose of this meeting is to stop the ongoing workplace conflict, ensure Ranjiv does not engage in such behaviour and take appropriate action to address this.

Details of ongoing workplace conflict in the workplace, refer to the attached documents: Letter to RTBU – Response re Ranjiv Pentiah 05022018
RTBU response on behalf of Ranjiv Pentiah – PCIP Letter to RTBU – Response re Ranjiv Pentiah 16022018

Summary of discussion:

We discussed the current situation at Lidcombe, the ongoing workplace conflict with several employees and the importance to address the current situation.

Considering the number of incidents and the need to take appropriate steps to address this, I made a decision to temporarily relocate Ranjiv Pentiah to work at Strathfield Station. This should provide Ranjiv an opportunity to demonstrate the appropriate standards of behaviour away from the current environment and at the same time provide the necessary coaching and support. The next review discussion according to the Performance and Conduct Improvement Plan is scheduled by 21/3/18.

Ranjiv commented he feels he is being punished for doing his job and this would not have happened if the SDM kept the discussion he had with him over the phone confidential. I further explained the reason for this decision is not just the conflict with one employee but the ongoing conflict with a number of employees at the same location. We discussed the need for Ranjiv to reflect on the current situation and more importantly demonstrate commitment to improve the working relationship with the team.

File note - comments made following the meeting:

Ranjiv was exiting the paid area and I asked him if he wants to discuss anything further. He turned around as he was walking through the gate and said: ‘Be careful what you are doing’ and walked away. Aaron Leishman was present at the time and heard the comments.

Outcome:

Ranjiv will be temporarily rostered to work at Strathfield Station.

Ranjiv must comply with the goals/standards according to the attached Performance and Conduct Improvement Plan. Ranjiv must think about his own behaviour and how it may impact on others and the team.

Next Review Discussion in 1 months’ time by 21/3/18.

  1. Mr Joleski conducted performance review discussion meetings with the Applicant about the PCIP on 29 March and 23 May 2018. On 20 July 2018, he sent a letter to the Applicant informing him that the PCIP was completed and no further action was required.

  1. Later in 2018, an incident occurred where the Applicant left his point of duty unattended to go to the toilet. When the Applicant returned to duty, Mr Joleski informed him that he needed to let the Station Duty Manager know when he needs to leave his point of duty. The Applicant thereafter made a workers compensation claim related to Mr Joleski’s remark.

  1. On 22 January 2019, in a mediation of the workers compensation claim, an agreement to improve communication between the Applicant and Mr Joleski was made. That Agreement provided: 

Agreement between Robert Joleski and Ranjiv Pentiah made on January 22, 2019 at 36-46 George Street, Burwood. We agree to the following:

Behaviour

·Treat customers and colleagues with dignity and respect

·Comply with Sydney Trains Policy and Procedures

·Behave in accordance with Transport Code of Conduct

Role Accountability

·Understand your duties, accountabilities and responsibility of performing your role.

Communication

·Respectful Communication

·Listen actively to others

·Working collaboratively towards an agreeable outcome

Returning to Lidcombe

·Abide by agreement

·Return to Lidcombe on Monday 28 January 2019 subject to clearance for pre injury duties.

  1. On 12 June 2020, Mr Joleski was made aware that the Applicant had failed to follow a direction issued by the Lidcombe Station Duty Manager, David Lawrence, to work on Platform 1 at Lidcombe station. Mr Lawrence summarised the incident in his correspondence to the Applicant and Mr Joleski on 13 June 2020, as follows:

Hi Robert,

CSA Ranjiv Pentiah was on selected duty (as per WFS) from 1400 to 1500, then continue his duty on platform 1 from 1500 to 1730. Meal breaks begin at that time till he finishes his own break at 1900. He was requested by me to go to platform 1 to continue the remainder of his shift. He goes to the platform and then rings me from there to question my decision, suggesting that I was having a go at him. I advised him that there was no reason for him to stay at the barrier when there’s a staff there and myself.

He’s of the opinion that selected duties means sitting at the barrier being idle, when there are trains and duties to take care of on platform 1.

I was not going to accept his baseless arguments that would have carried on and on I reminded him that I was going to discontinue the conversation politely.

This behaviour of his is unacceptable when requested to perform duties that are not unreasonable by any manager.

Thank you.
Kind regards,
David Lawrence.

  1. In early October 2020, the Applicant sent an email to a university lecturer about occupational therapy students using public transport as follows:

Hi Joan,

I would like to know if you have received permission from transport NSW regarding the use of wheelchair by your student on Sydney trains transport network. Can you please provide me that letter from NSW transport?? If there is no permission, your student can’t use wheelchair and ask for assistance at train station. The boarding and alighting assistance is strictly for disabled people  in the community. I will be waiting for your reply until then your student can’t use the letter you supply thank you.

Yours Sincerely,

Ranjiv Pentiah

  1. Sydney Trains supports the activities identified as it provides occupational therapy students with insight into the complexities of travelling for some people with disabilities, so they can better support those people. The university lecturer made a customer complaint to Sydney Trains.

  1. On 30 November 2020, the Applicant sent an email about the role of repeaters at stations, which followed some discussion between Station Duty Managers. In an email where he signed off as “RTBU Activist” he stated:

Dear Robert,

There were no proper consultation with all the station staffs at Lidcombe and no union representative were involved to discuss this action plan. Also staffs doing repeating will follow OSP 6 requirements that has been agreed by Sydney trains and the union nothing else. As far as I know the latest OSP 6 is in dispute. It has been brought to my attention also that some duty managers are telling both lidcombe staffs and relief staff that they need to stand outside during their entire part time shift as a repeater. This is called intimidation by those duty managers together with the Customer Area manager. I have also notice in the action plan that the staff need to pick up rubbish then you must consider of employing extra cleaner to do so. As per section 1 clause 8.9 health and safety,I am putting it in dispute due to some health concerns and for lack of consultation with other staffs. Also the behaviour of some managers toward staffs under code of conduct.

HSR please do the necessary by contacting SafeWork. Thank you for your assistance. Yours Sincerely

Ranjiv Pentiah

  1. The Applicant sent a number of other emails, and on 28 January 2021, a meeting to address the Applicant’s email communications occurred. That meeting was summarised in communication of 5 February 2021, as follows:

Reiteration of Our Code of Conduct

Dear Ranjiv,

Thank you for taking the time to met with myself and Ms Aimee Acosta, Senior Advisor – People and Change, on Thursday 28 January 2021 to discuss the emails that had been sent by you between November 2020 and January 2021 to other employees.

I appreciate your honesty during the meeting, and providing me with your explanation behind each of the issues that you had previously raised but did not believe were actioned appropriately.

During the meeting, I advised you that the purpose of the meeting was to agree on outcomes moving forward to ensure that your communication, particularly your written communication, is respectful and professional.

I accepted that you did not write the emails with the intent to embarrass or offend anyone. I reiterated to you during the meeting that you are well within your rights to raise concerns in the workplace, but that, when doing so, you need to consider how the tone and language in your email may impact others, causing them to feel offended and/or insulted.

Moving forward, we agreed on the following outcomes:

·If you have any workplace issues that you would like to raise, to raise these first with the SDM’s (Station Duty Managers) in a respectful and professional manner. If you have not received a response, to send the SDM’s a reminder in a respectful way and give them sufficient time to respond back. If there is still no response, you may escalate the matter to myself, and I will commit to meeting with you to discuss these concerns.

·Instead of emails, you may elect to raise your issues by speaking wo the SDM’s face to face or via the phone, to prevent emails going back and further.

·To be mindful that your written communication does not include comments that may be vexatious in nature; and take the time to proofread your emails and/or request someone else proofread to ensure that the email cannot be misconstrued, prior to sending.

·I agreed to look at options for training to assist you in your written communication, and you have agreed to attend this training, if or when available:

oTo undertake a refresher Code of Conduct training.

oFor you to encourage staff members to raise any concerns they may have directly with SDM’s, and myself (if no response is received from the SDM’s); and to encourage staff members to liaise directly with HR and/or myself if they believe anyone is engaging in bullying/harassing behaviour.

I would like to remind you of your obligations under Our Code of Conduct, specifically in relation to Section 3: Staff Responsibilities which stipulates that all staff members ‘must treat our customers and colleagues fairly, consistently and with respect’ and ‘behave in a lawful, professional and reasonable manner and always act in the best interest of Transport’.

I have attached a copy of Our Code of Conduct for your benefit.

During the meeting, you were advised that if there is no improvement in your written communication, this may be managed more formally.

I also wish to advise that the Employee Assistance Program (EAP) provides a free confidential counselling support service for Sydney Trains employees and their immediate family members. EAP can be contacted on [phone number].

  1. On 28 February 2021, the Applicant sent an email to Mr Joleski and Ms Acosta, Manager in People and Culture at Sydney Trains, in which he sought to address the content of emails as a Work Health and Safety issue. That email was as follows:

Dear Robert and Aimee,

I am seriously concerned as a HSR about the gross misuse of the Sydney Trains Code of Conduct and specifically where it is being used against staff who use the email system. It also seems quite obvious that those emails were written by Sydney Trains staff, Union delegates and those raising concerns about Work, Health and Safety issues. By using the Code of Conduct against staff, this will potentially have detrimental effects on their health and wellbeing by not just feeling discriminated against causing a degree of inferiority but also by the fact that they are being disciplined for no substantiated reason.

Sydney trains staff is made up of a diverse culture and ethnicity with the majority who first language is not English. They also come from a different upbringing and may still not have adapted or learned the Australian way of writing.

Further to the above, Sydney Trains does not have a proper formal platform where in relation to educating and or training staff in its required methods of writing what is perceived as Professional emails. Having highlighted the above facts, subjecting staff members to a PCIP quoting a breach of the Code of Conduct is inappropriate and unjustified under the circumstances. It’s also concerning that there is no support from HR or People and Change.

Under the QHS act 2022 No. 10 (NSW) Division 4, Section 28, Duty of workers states the following a worker is anyone who works under Sydney Trains and a HSR or a Union Delegate is also classified under this section as a worker of Sydney Trains. However both these roles carry additional responsibility. Under this section it is the responsibility of all staff to raise awareness of issues within the workplace both verbally and in writing. When issues are addressed in writing, the content or way in which the communication is presented will depend on the level of training provided. In this case there has been none. The content may also be written by a person who may not have sufficient knowledge in communication via emails.

Most staff have written emails which were quoted “unprofessional” even though these emails did not reflect any offensive language but were just straightforward emails about AHS issues that said exactly what was intended to be communicated. There seems to have been no thought or consideration given by Local Management when dealing with these emails. This is alarming when consideration is given to the number of occasions where staff have been called in and subsequently placed on PCIP’s for what has been alleged as inappropriate or unprofessional emails.

Under Safe Work Australia Dealing with Workplace Bullying – A Workers Guide clause 1.1, the above matters or accusations may be classified as workplace bullying and unreasonable behaviour by the PCBU towards workers who attempt to raise any Work, Health and Safety concerns.

If any particular Manager considers an email unprofessional or just dislikes an email due to his or her personal opinion, then it would be most appropriate for such emails are referred to People and Change for an unbiased investigation.

By failing to provide appropriate training to staff, the PCBU automatically breach the WHS act 2011 No. 10 (NSW) Division 2 Section 19 and Division 4 Section 27. This may also breach WHS act 2011 (NSW) division 8 section 105.

This matter need to be addressed as a matter of urgency as per the WHS act and regulations as advised of above as which may have a detrimental effect on the Health and Safety of all staff concerned. As the matter is of serious concern as the HSR of the work group under WHS Act Division 3 Subdivision 5 Section 68&69, Part 5 Division 1 Section 49 and under the same Act, Part 6 Division 1 Section 104, I am seeking a list of all staff members who have been subjected to a PCIP and obtain all relevant information on hand to consult with HR/People and Change and the professional Conduct Unit to remedy these issues without further delay.

  1. Later, on 28 February 2021, the Applicant issued a provisional improvement notice (PIN) to Sydney Trains that suggested Sydney Trains employees were exposed to risks to psychological health related to expectations on employees when communicating by email. That PIN was withdrawn, and a new PIN was issued. Following a review by an inspector of SafeWork NSW, the second PIN was cancelled.

  1. The Applicant’s email communication was the subject of a formal counselling session on 9 April 2021, with Mr Walsh. Arising from that meeting, the Applicant was issued with a Formal Warning, which summarised the formal counselling meeting, and was in the following terms:

Formal Warning

I refer to our formal counselling session on 9 April 2021, during which you were advised of concerns raised in relation to the emails you sent to other Sydney Trains employees between 28 February 2021 and 29 March 2021. Further to our meeting we confirm it has been determined that you have failed to meet Sydney Trains’ expected standards of workplace behaviours and conduct by failing to adhere to Sydney Trains’ Our Code of Conduct, including but not limited to:

1.Section 3: Staff responsibilities

You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace. You must:

·Treat our customers and colleagues fairly, consistently, and with respect:

·Behave in a lawful, professional and reasonable manner and always act in the best interest of Transport;

·Understand the duties, responsibilities and accountabilities of your role, and perform these safely, honestly, courteously and fairly;

2.Section 12: Bullying, harassment, discrimination and inappropriate workplace conduct

We have zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct. You must treat all colleagues, customers and members of the public fairly, with dignity and respect…

On 5 February 2021, you were issued a letter following a meeting on 28 January 2021, regarding emails that you sent to other employees between November 2020 and January 2021, which advised you that if there is no improvement in your written communication it will be managed formally (letter attached).

In our meeting on 9 April 2021, I emphasised to you that, as an employee, you are well within your rights to raise workplace concerns/issues, however, raising workplace concerns/issues should be done in a professional and respectful manner. You were asked to provide commentary to seven (7) specific email trails which you sent to various Sydney Trains employees. You were advised that the allegations, tine and language in these emails were considered to be inappropriate and not in accordance with Our Code of Conduct, specifically:

·When looking at the various emails you sent, particularly when taken as a whole, they demonstrate a stubborn and belligerent course of unreasonable and disrespectful conduct towards colleagues and management;

·You raise implicit allegations of bullying, harassment, victimisation, racism and discrimination in circumstances where there appears to be no basis for any such allegations;

·You make various incorrect assertions with respect to your rights to information and the WHS Act in an unnecessarily aggressive and argumentative manner; and

·You make allegations that Robert Joleski has engaged in unlawful discrimination contrary to the WHS Act, which is an example of an unreasonably based criticism that has the potential to undermine Robert’s integrity and reputation.

We acknowledge that in our meeting you raised as an explanation for your inappropriate emails, that you have not yet attended the “Mind your language – Cracking the Communication Code” course. I do not accept this as an explanation or excuse for not treating your colleagues fairly, with dignity and respect as per Our Code of Conduct. Particularly when you were reminded of your obligations and put on notice, on 28 January 2021, and in the letter on 5 February 2021.

Having reviewed all the information made available to me, including your verbal responses, I am satisfied that your behaviour warrants you being issued with a formal warning and a Performance/Conduct Improvement Plan (PCIP), Robert Joleski will be in touch with regarding your PCIP.

A copy of this letter will be placed on your personnel file.

You are reminded of your ongoing obligations to comply with the Our Code of Conduct and all Sydney Trains policies and procedures which are applicable to your employment and role. Compliance with these policies and procedures is a fundamental requirement for your ongoing employment.

Should there be further breaches of Our Code of Conduct and/or Sydney Trains policies and procedures, further action will be initiated against you which may include you being referred for disciplinary action.

I would also like to remind you of your confidentiality obligations, and reiterate that this matter should not be discussed with anyone other than your support person.

I wish to advise that the Employee Assistance Program (EAP) provides a free confidential counselling support service for employees and their immediate family members. EAP can be contacted [phone number].

  1. On Thursday 24 June 2021, at the time of the commencement of a further lockdown in Sydney due to COVID 19, the Respondent issued an email titled “Temporary Ways of Working Reintroduced”, that outlined the following:

Temporary ways of working reintroduced
As you would know, the COVID-19 situation has been changing quite rapidly over the past few days.

Your health is our main concern, and our focus is to continue providing you with a  safe working environment and support our customers as they travel with us.

In light of the updated Public Health Order and Transport’s COVIDsafe Update, we will temporarily reintroduce the ways of working below to support you during this period.

·GAC booths (where available) and control rooms may be used by station staff when appropriate. Please maintain physical distance in these spaces and continue to wear a mask.

·Station duties must continue to be completed, including those that occur in open customer environments such as the platform or concourse. For example: performing Right of Way procedures under OSP 6, assisting customers when required, cleaning, boarding assistance, retrieving items from the tract, lost property, etc.

·All stations should ensure that existing rotations during shifts between concourses and platforms continues.

These temporary ways of working are an additional measure to our usual operations. They are intended to provide you with greater comfort as we work together to safeguard your health.

Please continue to look after yourself, your loved ones and colleagues:

·Continue to wear a mask and maintain good physical distance

·Practice good hygiene – wash your hands or sanitise regularly

·Stay home if you feel unwell

·Check the confirmed case locations list regularly and follow the health advice listed. Check stayinformed for the latest Transport information.

We, along with our customers, appreciate your continued focus and outstanding dedication in providing an essential service to our customers.

Thank you for your ongoing commitment.

  1. On Saturday 26 June 2021, at 3.57pm which was after the Applicant’s shift had ceased at 2.00pm, without contacting Mr Joleski or any other Manager of the Respondent, the Applicant issued a stop work direction (within the meaning of section 85 of the Work Health and Safety Act 2011), as follows:

Dear Robert,

The Premier has announced a total lockdown commencing at 18:00 hours today the 26th of June 2021. Under the WHS ACT, as the HSR of the West Wages Group I am putting a cessation of work from 18hrs on 26/06/21 on the HUBS across the West Wages Group (geographical group) as there are still customers travelling on the network without masks and not respecting social distancing and there is no GAC available for the safety of the staff. Staff working on the hub will be relocated on platforms for alternative duties.

  1. At 5.08 pm that same day, the Applicant sent an email to Mr Joleski as follows:

Dear Robert,

Base on the current situation in NSW, and as the HSR of the West Wages Group under the WHS Act and EA section 1 clause 8.9, this decision was made for the Safety of my colleagues and myself. If you want to discuss about this matter please do so via email due to misrepresentation of our conversation on previously occasions. Otherwise please liaise with all the relevant stakeholders and forward that email to all stations undert eh West Wages Group (geographical group) as a matter of urgency and prior to 18:00 hrs 26th of June 2021. Thank you.

  1. I accept Mr Joleski’s evidence that the issuing of a stop work direction was a serious matter. The effect of the stop work direction was to cause around 12 employees to cease performing work on concourses at all gates stations within the West Geographical Area including Strathfield, Lidcombe, Auburn, Olympic Park, Parramatta, Blacktown, St Marys, Mount Druitt, Westmead and Penrith. While the Applicant proposed that those employees would be given alternative duties at their respective train stations, the availability of such duties would have been limited and without such work being undertaken, customer experience, safety and security would have been greatly impacted, given the unavailability of staff to undertake the tasks necessary to ensure customers can enter or exit the station safely, attain travel information and guidance and, most importantly, assist customers with disability, special needs or the elderly.

  1. As soon as Mr Joleski became aware of the stop work direction, he tried to contact the Applicant on several occasions, but the Applicant did not answer his phone calls. At 5.27 pm on 26 June 2021, Mr Joleski sent the Applicant an email outlining his concerns with the stop work direction including that Applicant had taken no steps to consult with him, which was a required step under the Work Health and Safety Act 2011 before issuing a stop work direction.

  1. At 6.29 pm on 26 June 2021, Mr Joleski received an email from the Applicant, which was as follows:

Dear Robert,

I would like to draw your attention to the email send by Michael Mercieca and Chris Walsh date 24th of June 2021 since this is a breach by Sydney trains for removing the GAC in the first place and leaving the staff vulnerable for airborne diseases and including this demonstrates a lack of consultation and ignorance by the management and also a discriminatory act on management behalf. This is a breach under the WHS act 2011 for ignoring safety of the employees. Due to the emergency that resulted in a total locked down by the premier of NSW office at a short, there is no time availael to consult regarding this matter at this of of time. Failure to comply by the cessation work at the hubs on the geographical group will result in a breach of the WHS Act 2022 and the EA section 1 clause 8.9. As a HSR I have address this matter after taking into consideration the health and safety of my colleagues and myself and Sydney train’s staff, it will not currently impact upon rostered platform staff by it will relocate staff to safer working environment. As a HSR, it’s past 18:00hrs and the PCBU has already breached the EWHS and the EA by attempting to coerce to HSR to withdraw.

  1. Mr Joleski called Dr Armand Casolin, Sydney Trains’ Chief Health Officer, to provide advice to him about the matters the Applicant had raised in his emails. A copy of that advice, which was delivered by email at 6.52pm on 26 June 2021, was as follows:

Hi Virginia I find the emails below puzzling as:

·Working at a Hub should pose no greater risk to staff than working elsewhere at a station;

·The stations are in western Sydney which has been less affected by the latest outbreak thus far;

·previous outbreaks have been larger in scale that the current outbreak is presently and I am not aware that Hubs were raised as a dafety concern previously;

·Staff aged over 40 and those with chronic medical conditions have had vaccination available for varying lengths of time and staff who have had at least their first dose would have some protection against sever infection;

·There are covid safe measures in place to reduce risk of infection to our people.

  1. After receiving this advice, Mr Joleski was satisfied that the Applicant could not have had a reasonable concern that working on platforms would expose workers to a serious risk to the worker’s health or safety, and he had not consulted with Sydney Trains prior to issuing the stop work direction. Mr Joleski emailed the Applicant advising:

I am directing you to call me as soon as possible to discuss the issues that you have raised so that we can seek to resolve them as quickly as possible. If you do not call me to discuss this issue, you may be the subject of disciplinary action.

  1. The issue in the stop work direction was referred to SafeWork NSW, who subsequently issued an Inspection Report and an Improvement Notice.

(b)      Allegations Found Substantiated

  1. Twelve allegations regarding conduct by the Applicant between 2 and 28 July 2021, were made against the Applicant, and 10 allegations were found to be substantiated. Those allegations can be grouped into three forms of misconduct. They are:

  1. Sending inappropriate emails;

  1. Failing to comply with an instruction of the Station Duty Manager; and

  2. Acting inappropriately towards a customer and co-workers, and failing to take appropriate Covid safety precautions with the customer, in incidents on 28 July 2021.

  1. Sending Inappropriate Emails

  1. Between 2 July 2021 and 24 July 2021, Mr Pentiah sent numerous emails to Mr Joleski, Customer Area Manager. The emails were too numerous to reproduce in this decision, but involved the Applicant addressing Mr Joleski, often with copies sent to a large number of Managers and staff of the Respondent, and others. The emails were often rude, abrupt and dismissive in their manner. Examples of the emails are outlined below.

  1. Additionally, in seven separate emails on 2 July 2021, the Applicant unreasonably dictated the terms of communication with Mr Joleski, by instructing him to only communicate and/or respond to him in writing.

  1. During an email exchange dated 2 July 2021 (1:06pm), the Applicant emailed Mr Joleski, copied to five others, as follows:

Dear Robert

I was made aware of a safety issue this morning by Michael MARSLAND regarding Auburn station where staff was directed to operate in an open Customer environment. Why the manager duty didn’t respect the risk assessment made by the staff on duty and fail to comply with the circular.

Also I have been advised that you told him as a union delegate not to get involved in this matter. Can please clarify why you as the CAM have breach the circular send by Chris Walsh and Michael Merceica and why staff carrying their risk assessment not respected?

Further could you please provide information in relation to an incident occurring on Monday where a train was terminated at lidcombe due to a passenger travelling on it after doing a COVID test. Why were station staff at Lidcombe terminating this service not advised of this matter and sent home for COVID test.

I am really concerned about your behaviour and attitude towards your frontline staff and their health and safety.

Please communicate via email not phone calls thank you.

  1. Also on 2 July 2021, but at 3.41pm and regarding splitting of annual leave, the Applicant sent an email to Mr Joleski and Ms George, copied to seven others, as follows:

Dear Robert & Mary,

As per the annual leave policies, staff has given sufficient notice to split their holidays and it’s been agreed under the EA. Can you please clarify why WFM has not adhere to it? I am really concerned about this behaviour from WFM and this is not the first time that we have to respond to these kind of issues.
Under the EA, this split annual leave request must be accomodate by WFM. If there is a staffing level issue then this matter need to be raised with HR to provide enough staff to cover those shifts. Please respond via email thank you.

  1. Again on 2 July 2021, but at 8.55pm, the Applicant sent a facetious email to Mr Joleski, copied to 12 others, regarding cessation of work from hubs, as follows:

Dear Robert,

Thank you for your response. I can see the resilience from you and the management when it comes to the health and safety of the frontline staff.

  1. On 6 July 2021, the Applicant sent an email to Mr Joleski and Ms Berndt that followed from a meeting that day. The contents of the email were as follows:

Dear Robert and Carmen,

Today in the LiRF meeting, I was bullied by both of you when I mention that a union representative need to present during the issue resolution and risk assessment for the delta variant COVID-19. Both of you advised me that there is no requirement for a union representative to be present. Can both of you point out to me where it is mention in the WHS Act 2011 and the Rail Safety Act. Thank you.

Yours Sincerely, Ranjiv Pentiah

  1. On 23 July 2021, at 5:09pm, regarding Covid 19 identification of Local Government Areas, the Applicant sent an email to Mr Joleski, copied to six others, as follows:

Dear Robert,

As a HSR, I want some clarifications how long it will take Sydney Trains to announce what measures will be put in place after the premier has declared a national emergency due to the delta variant Covid-19. Also what measures will be taken into consideration into closing for the Hub both concourse and platforms permanently close and relocate the staff to a place ?? since some of the duty managers are asking staff to operate from the hub simple example auburn station. I have ask the management team that was involved in the Risk assessment in the 16/07/21 about what the interim measures but nobody has even attempted to reply to my email till date especially from the management side since other staff present doesn’t have the duress dictation to put measures into place. This has simply shows how much respect and accountability that the management have towards the frontline staff when it comes to their safety. Since frontline staff, we don’t have any options but to face the public on a daily basis. By the way I believe we got a SPACE behaviour looks like it’s only apply to the frontline staff so they can be place on a a PCIP compare to those in the management side simple example is not responding to a HSR when it come to frontline staffs safety no space is applied at that time. Oh by the way when most of the management staffs are operating in a cosy atmosphere working from home which doesn’t involved interaction with the public. Frontline staff working in 3 degrees or less in certain place and no safe room or Gac available how does this form part of Sydney Trains space behaviour ?? Also this is a breach from Sydney trains management staff that were involved in the risk assessment that fail to provide an interim measures to keep the frontline staff safe from this delta variant Covid-19. Even though the public are not respecting the lockdown since the premier has announced the lockdown in the local government area. I haven’t seen any in forcements by the police at the station. Police officers questioning about why you not wearing face mask instead of why you left you suburb to travel on the train. That’s really shocking and unfortunate. I apologise in advance since English is not my first language but this is a honest truth from bottom of my heart and I am working for both Sydney trains and HSRs for the West Wages Geographical group frontline staffs to have a better safe workplace.       

(emphasis added)

  1. Fourteen minutes after the above email, at 5.23pm on 23 July 2021, the Applicant sent a further email  to Mr Joleski, copied to four others, in the following terms:

Dear Robert,

Unfortunately as a HSR these measures are not suitable for staff. Sydney trains has to make up their mind whether to roster the staff on special leave or leave them on their normal roster since slavery has abolished by law. Management should take into consideration and respect our privacy and our personal life as well.
Can you provide me an explanation about how we are expected to manage our personal life and how Sydney trains has taken that into consideration. I be expecting for a response from you within the next 2hrs, enough time to consult your superiors. Sorry may be my email is not as per your expectation which will sound out of tone but it’s an honest and accurate question ask by me to you. Thank you.

(emphasis added)

  1. Failing to Comply with an Instruction of the Station Duty Manager

  2. On 24 July 2021, it was alleged that at Lidcombe Station, the Applicant failed to comply with a reasonable and lawful instruction given to him by the Station Duty Manager, Mr Aswin Arjunan.

  1. At approximately 7.40am, Mr Arjunan instructed the Applicant to work from Platform 1 after the last train had departed from Platform 4 (approximately 11:00am). Despite Mr Arjunan explaining that it was to meet operational requirements, the Applicant responded with words to the effect, "no I am not listening; it is only your personal opinion that it is for operational requirement".

  1. The Applicant refused to comply with the instruction on the basis that Mr Arjunan had, "no authority to change the master roster", even though the Applicant was rostered for duty in accordance with the master roster.

  1. The Incidents on 28 July 2021

  1. The incidents of 28 July 2021 involved the Applicant’s interactions with two co-workers and a member of the public, who by order of the Commission was identified as Mr AB.[5] On Saturday 28 July 2021, Mr AB, a wheelchair bound customer of Sydney Trains, boarded a train at Mt Druitt, seeking to travel to Canterbury train station, changing at Lidcombe train station, so he could attend a hospital to obtain his COVID-19 vaccination. While there were ‘lockdown’ measures in force at the time, the Public Health Orders permitted persons to leave their homes for various reasons, including to obtain a vaccination.

  1. At around 7:00 pm, following a disagreement about whether Mr AB was entitled to travel during the lockdown, Mr Vijay Goyal, a Customer Service Attendant at Mt Druitt train station, assisted Mr AB to board a train to Lidcombe. Mr Goyal then notified Lidcombe train station that, on the train’s arrival, Mr AB would need assistance to alight the train.

  1. Mr Goyal then received a phone call from the Applicant, who expressed dissatisfaction that Mr AB had been permitted to board the train, and asked Mr Goyal to contact security, which he did, and who indicated that they did not need to be contacted about ‘station matters’.

  1. Mr Goyal informed the Applicant of his discussion with security. The Applicant asked for the name of the security person Mr Goyal had spoken to, and Mr Goyal indicated he did not ask their name. The Applicant then said words to the effect of, “I am a HSR and Union delegate, and if you refuse to tell me his name, I will report you as well”.

  1. At 7:30 pm, the train arrived at Lidcombe train station and the Applicant assisted Mr AB to alight the train. The Applicant then spoke with Mr AB and his carer. He then took a series of photographs of Mr AB over a seven minute period using his work phone. Mr AB says that he asked the Applicant to not take photos of him, yet he continued to do so.

  1. The Applicant then told Mr AB he was calling the Police. Mr AB then moved back towards the edge of the platform, and it was asserted, but not shown on the CCTV of the incident, that the wheels of his wheelchair crossed the yellow line used to mark the area where customers should not go unless boarding or alighting the train.

  1. At 7:45pm, the Applicant continued conversing with Mr AB. He lowered his face mask for no apparent reason, and was not maintaining a social distance of 1.5 metres from Mr AB. The Applicant says he did so in order to permit him to communicate with Mr AB.

  1. The Applicant raised Mr AB’s travel with the Station Duty Manager, Ms Nidhi Gupta, who informed him that he had no right, as a Sydney Trains employee, to detain Mr AB. The Applicant responded that Ms Gupta was putting staff health and safety at risk. Ms Gupta then assisted Mr AB to board his next train. When Ms Gupta informed the Applicant that he had no lawful authority to detain the customer, and no right to refuse the customer travel, the Applicant said to her in a loud voice, words to the effect, "you are putting your frontline staff's health and safety at risk". Ms Gupta placed Mr AB in contact with Mr Joleski, to whom Mr AB complained about the Applicant’s behaviour.

  1. Before Mr AB’s train departed, Police arrived and spoke with Mr AB. Police permitted him to continue his onward journey.

  1. The Applicant denied that his conduct was inappropriate and broadly relied on all of his actions being appropriate, either with reference to the exercise of rights under the WHS Act, or under the Public Health Orders at the time.

Conclusions and Consideration

(a) Preliminary Matters

  1. I am satisfied that the Applicant is protected from unfair dismissal. Further the dismissal

was not a redundancy and the Respondent is not a small business such that the Small Business
Fair Dismissal Code does not apply. Further, the Application was made within the time limits
prescribed by the Act.

  1. I am also satisfied that the Applicant was dismissed from his employment.

  1. In determining if the Applicant was unfairly dismissed it is necessary to determine if his

dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters
to be considered by the Commission.

  1. Section 387 of the Act states:

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.”

(b)      Valid Reasons for the Dismissal

  1. To be a valid reason, the reason for the dismissal should be sound, defensible or well  founded and should not be capricious, fanciful, spiteful or prejudiced. However, the Commission will not stand in the shoes of the employer and determine what the Commission

would do in the same position.

  1. In Sydney Trains v Gary Hilder[6] (“Hilder”) the Full Bench summarised the well-established principles for determining such matters[7]:

“The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

  1. I note that there were essentially three grouped reasons for the Applicant’s dismissal, being:

  1. Sending inappropriate emails;

  1. Failing to comply with an instruction of the Station Duty Manager; and

  1. Acting inappropriately towards a customer and co-workers, and failing to take appropriate Covid safety precautions with the customer, in incidents on 28 July 2021.

  1. Sending Inappropriate Emails

  1. The Applicant was required to ensure he behaved in a professional and respectful manner and adhere to the Our Code of Conduct & Dignity and Respect Procedure (the Code of Conduct) of the Respondent. He was reminded on numerous occasions of that requirement, including at the very least in emails sent to him on 20 November 2020 and 15 January 2021. The Applicant himself relied upon the Code of Conduct in his emails. He was also required to comply with policies regarding Discrimination, Grievance Management and Prevention of Bullying and Harassment.

  1. If there were any doubt as to the Applicant’s understanding of his obligation, it would have been dispelled by his evidence at the commencement of his cross-examination as follows:[8]

You knew that under the code of conduct, you had to treat customers and colleagues fairly, consistently and with respect?‑‑‑Yes.

That you had to behave in a lawful, professional and reasonable manner?‑‑‑Yes.

That you had to comply with reasonable, lawful directs and instructions given to you in the course of your duties?‑‑‑Yes.

But you weren't permitted to discriminate, harass or bully people in the workplace?‑‑‑Yes.

You also had a good understanding and knowledge throughout your employment of the grievance management procedures?‑‑‑Yes.

And you knew that they required you to professionally raise concerns that you had by way of grievances?‑‑‑Yes.

That if your concerns couldn't be addressed informally, you could lodge a grievance?‑‑‑Yes.

That any discussions about grievances were to occur privately?‑‑‑Yes.

And you were required to observe confidentiality when you raised a grievance?‑‑‑Yes.

And you knew that the grievance management policy required staff to take responsibility for their own behaviour?‑‑‑Yes.

And that they had to communicate constructively with one another?‑‑‑Yes.

And they had to treat others with dignity and respect?‑‑‑Yes.

And you were also familiar throughout your employment with Sydney Trains with the policy on the prevention and management of bullying and harassment?‑‑‑Yes.

And you knew that that particular policy talked about facilitating a positive workplace culture at Sydney Trains?‑‑‑Yes.

And again, it required all staff to treat colleagues with dignity and respect?‑‑‑Yes.

And that made it very clear that there was zero tolerance on the part of Sydney Trains for bullying and harassment behaviour, do you agree?‑‑‑Yes.

And it also imposed, like the other policies I've taken you to, an obligation to communicate courteously?‑‑‑Yes.

And you knew throughout the duration of your employment with Sydney Trains, that you at all times when you were on duty, had to comply with each of those policies?‑‑‑Yes.

  1. The Staff Responsibilities section of the Code of Conduct included the following:

You are responsible for familiarising yourself with agency policies and procedures, and complying with them. You are also responsible for making enquiries if you are unsure about what actions to take.

You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace.

You must:

·treat our customers and colleagues fairly, consistently and with respect;

·behave in a lawful, professional and reasonable manner and always act in the best interest of Transport;

·comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you;

…

·comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so;

…

·not discriminate, harass, bully or engage in inappropriate workplace conduct;

…

·Nothing in this Code of Conduct affects your rights to participate in lawful industrial activities.

  1. The emails the subject of the allegations of sending inappropriate emails fell well short of being compliant with the Code of Conduct. They were often intemperate, aggressive and offensive, and sometimes sent in a form of “barrage” inundating Mr Joleski, and broadcasting the Applicant’s position well beyond just Mr Joleski, and contrary to the obligations of confidentiality.

  1. The conduct of the Applicant in July 2021 was all the more remarkable because in early 2021, Mr Walsh met with the Applicant and his industrial representative where it was acknowledged that the Applicant had difficulties in communications. On 9 April 2021, the Applicant attended another formal meeting with Mr Walsh in regard to disrespectful and aggressive emails he had sent to colleagues. Mr Walsh informed the Applicant that if his combative emails and threats to colleagues continued, disciplinary action would follow. Mr Walsh even offered to personally assist the Applicant with one-on-one coaching in relation to the wording of his emails, though the Applicant chose not to take up that offer. The Applicant was also recommended to ask Mr Marsland to review his emails before he sent them. The Applicant also committed completed a ‘Mind Your Language’ course.

  1. It is abundantly clear that the emails sent by the Applicant had significant adverse effects on employees of the Respondent. In particular:

(a)Ms Berndt, after being accused of bullying in an email on 6 July 2021, was significantly upset. Her evidence, which I accept, was also summarised in a contemporaneous email sent the following day;[9]

(b)In cross-examination, Mr Walsh gave the following evidence regarding the effect on Ms Berndt and Mr Joleski:[10]

The evidence is that if Mr Pentiah feels as though he's bullied, and raises those concerns, that conduct itself it bullying behaviour?‑‑‑No, no, that's not what I said Mr Hart.  I said that Mr Pentiah was making some serious accusations or allegations against others, but he was not able to provide any evidence where that was the case.  And in fact, there was one email where he did accuse one of the folks in our Workforce Management team, or racially discriminating against him, based on an email that that manager had sent, to my evidence, a manager of Nigel.  I showed Mr Pentiah the email and said, so here's the email from Nigel.  Where is it that you say that it's racially discriminating against you?  And so, at the end it was a pattern where Mr Pentiah would make these outlandish or outrageous claims and if I had any view that at any time there was substance to them, or he was able to provide – I would have managed that in a very, very clear, concise, direct and prompt manner.  But there was never.  It was just these throw-away statement, and it concerned me because he was having impacts on other people, including Mr Joleski and including another manager in Workforce Services.

(c)Mr Joleski’s evidence of the impact of the Applicant’s behaviour, which I also accept, was as follows:

In the lead up to the time that Mr Pentiah was suspended from duty to allow a workplace investigation to be conducted, I had gotten to the point where I felt exhausted and unable to work without anxiety that I would receive further emails from Mr Pentiah. This affected my wellbeing at work, but also affected me outside of work, as I could not stop feeling at risk of being attacked by Mr Pentiah about all manner and range of matters in the workplace. I remember avoiding any discussions about work with my family, and feeling frustrated even when my wife would ask my questions like “how was work today?” because I could not escape what I felt was a personal and persistent attack at work.

A lot of my job as a CAM is being out meeting and speaking with Station Duty Managers, Customer Service Attendants and other employees. While these staff often raise issues with me, they generally do so in a professional and respectful way, so I will not take these issues on board personally. On the other hand, Mr Pentiah told me time and time again that I was attacking him, that I was racist, that I was promoting a lack of safety or that I was incompetent. I deny all of these allegations. However, those allegations impacted on me. I have always taken pride in my honesty, transparency and being able to act with professionalism. Mr Pentiah constantly criticised me and, with time, the accumulation of that unfair criticism negatively impacted me.

  1. Insofar as the Applicant explains his identified conduct as being the exercise of his Health and Safety Representative or Union Delegate duties, I reject that explanation. Even if he were exercising such duties, he was acutely aware of the courtesy and confidentiality requirements in the performance of such duties. I find that the Applicant was acutely aware of the unacceptability of his conduct, yet he persisted with that conduct.

  1. I find that the Respondent had a valid reason for dismissing the Applicant relating to the sending of inappropriate emails.

  1. Failing to Comply with an Instruction of the Station Duty Manager

  1. As I have found above, the Applicant was fully aware that he had to comply with reasonable, lawful directions and instructions given to him in the course of your duties. It is therefore initially difficult to understand how the Applicant considered that he could not comply with the direction of the Station Duty Manager.

  1. The inexplicability of the Applicant’s conduct was not assisted by his evidence in cross-examination, which was as follows:[11]

Mr Pentiah, listen carefully again to my question and let's see if you can answer it.  After you refused to go and work on platform 1, Mr Arjunan reminded you of your obligations under the code of conduct, didn't he?‑‑‑Yes, he did.

Thank you.  And that includes, under the code of conduct, complying with reasonable and lawful requests?‑‑‑It was not reasonable and lawful request at that time.

Under the code of conduct, Mr Pentiah, you were required to comply with reasonable and lawful requests, correct?‑‑‑Yes.  Not on the - in that situation.

And what Mr Arjunan explained to you is that there would only be two trains an hour on platform 5 after 11 am but 10 trains an hour on platform 1 so there was an operational requirement for you to move to platform 1.  That's what he told you?‑‑‑Yes, he did.

And you still refused to go platform 1, that's correct?‑‑‑Yes.

You said words to the effect of, 'No, I am not listening', correct?‑‑‑I didn't say, 'No, I'm not listening.'  I give him a reason why I'm not doing it.

You said words to the effect of, 'It is only your personal opinion that it is for operational requirements', correct?‑‑‑No.  I give him a reason of why I can't move - leave platform 5 and move to platform 1.

You told him that the code of conduct was irrelevant, correct?‑‑‑Yes.

Because that's still your view today, isn't it, as you've just said to his Honour, correct?‑‑‑Based on operational issues, operational procedures, yes, the code of conduct doesn't apply into this matter.

  1. It cannot be said that the direction to work on a different platform later in his shift could be anything but both a lawful and reasonable direction. The Applicant, as a CSA had no responsibility whatsoever for rostering or determining where work was performed. He simply decided that he did not wish to work on Platform 1 as he was directed to do, and told the Station Duty Manager to roster on another staff member to work on that platform.

  1. I find that the Respondent had a valid reason for dismissing the Applicant relating to his refusal to follow the lawful and reasonable direction of the Station Duty Manager.

  1. Acting inappropriately towards a Customer and Co-workers on 28 July 2021.

  1. I consider that the Applicant’s comment to Mr Goyal in words to the effect of, “I am a HSR and Union delegate, and if you refuse to tell me his name, I will report you as well”, occurred and was intended to inappropriately intimidate Mr Goyal, contrary to the Code of Conduct.

  1. The comment to Ms Gupta by the Applicant, in words to the effect of "you are putting your frontline staff's health and safety at risk", while possibly without sensible foundation, stands in contrast to the comment to Mr Goyal, as the comment to Ms Gupta was an expression of opinion and not an inappropriate threat. I would consider only that comment to Mr Goyal as constituting a valid reason for dismissal.

  1. As to the Applicant’s interactions with Mr AB, I note that the Applicant conceded significant parts of what was alleged against him, for example breaching Covid 19 guidelines as to use of face masks and keeping a distance of 1.5 metres. The Applicant conceded a significant summary of the interaction in cross-examination, as follows:[12]

What - this customer knew exactly where he wanted to go, didn't he?‑‑‑Yes.

And he told you and showed you why he was travelling, correct?‑‑‑He told me he got a walk‑in appointment which is (indistinct) is not right.

And apart from getting your assistance to alight him from the train, after that he didn't need your assistance at all anymore, did he?‑‑‑No.

No.  So he was free, you would agree with me, to go to the other platform at Lidcombe Train Station and get on his connecting train, do you agree?‑‑‑Yes.

And it was you that stopped him to have this seven minute conversation with him, correct?‑‑‑I was trying to look after him, yes.

And again, Mr Pentiah, when you say that you were trying to look after him, he didn't at any stage say that he needed your help, did he?‑‑‑He didn't request for my help.

  1. I accept on the balance of the evidence that the Applicant displayed an aggressive demeanour towards Mr AB, taking photos of him when Mr AB had expressly asked the Applicant to cease doing so. Even if the Applicant was legitimately exercising rights under the WHS Act, which I do not find he was, that would not give the Applicant an excuse to act inappropriately with a customer, particularly detaining Mr AB as he did, and it does not excuse him from his obligation to conduct himself to an appropriate standard, particularly in his interactions with members of the travelling public.

  1. I find that the Respondent had a valid reason for dismissing the Applicant relating to his conduct towards Mr AB and Mr Goyal.

(c)       Procedural Fairness

  1. The only issue of procedural fairness raised by the Applicant was outlined in his written submissions, where it was put:

In this matter, the Respondent did not provide Applicant with the opportunity to address concerns uncovered during the course of the investigation with a view of preserving the employment relationship. Nor did the Respondent provide the Applicant with an opportunity to correct or amend his conduct. Instead, the Respondent proceeded to finalise the investigation and deliver an outcome confirming a decision to dismiss the Applicant.

  1. That submission disregards the numerous attempts by the Respondent over a period of years to address the conduct of the Applicant. It is abundantly clear that the Respondent conducted formal and informal performance improvement processes with the Applicant for a number of years in response to customer complaints, formal complaints from colleagues and concerns from management about his communication and attitude.

  1. There can be no question that the Applicant was on notice of the behaviour that was causing the Respondent serious concern, and given opportunities to improve his behaviour, as well as being referred to relevant policies including the Our Code of Conduct. This included a formal direction in April 2021 to complete a training course of the use of appropriate language in the workplace, and being formally warned about inappropriate behaviour mere weeks prior to the July 2021 misconduct.

  1. Insofar as the Applicant asserts that he was acting in his position of HSR, or even union delegate, when so conducting himself, and his actions can be excused as him legitimately acting in those positions, I do not accept that even the Applicant saw those positions of HSR and union delegate as providing such immunity. Rather, the Applicant used those positions as an excuse to act in a manner he knew was unacceptable, and which he had been advised on numerous occasions was unacceptable.

  1. I formally note that the Respondent:

(a)       Notified the Applicant of the reason for dismissal (s.387(b)); and

(b)       Gave him the opportunity to respond to any allegations (s.387(c)), and allowed him to have a support person present at relevant times (s.387(d)).

(d)      Other Relevant Matters

  1. Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Applicant made no submissions going to considerations that would enliven Section 387(h).

Conclusion

  1. I have made findings in relation to all matters specified in section 387 as relevant. I

must consider and give due weight to each as a fundamental element in determining whether
the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

  1. Overall, I do not find that the dismissal of the Applicant was harsh, unjust or unreasonable. There were valid reasons for the dismissal, and the Respondent had gone to extraordinary lengths to attempt to have the Applicant understand appropriate conduct in the workplace. In response, the Applicant studiously disregarded the Respondents efforts, and conducted himself in a manner that I find he knew was inconsistent with his obligations as an employee of the Respondent.

  1. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Hart, for the Applicant
Mr M Watts, counsel for the Respondent.

Hearing details:

2022.
October 4, 5.
Sydney.


[1] [2022] FWC 2479.

[2] Transcript PN 68 to 73.

[3] Transcript PN 71.

[4] Transcript PN 111.

[5] [2022] FWC 2479.

[6] [2020] FWCFB 1373.

[7] Ibid at [26]

[8] Transcript PN 85 to 102.

[9] Exhibit R2.

[10] Transcript PN 1618.

[11] Transcript Pn 421 to 429

[12] Transcript PN 738 to 743.

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Mr Ranjiv Pentiah v Sydney Trains [2022] FWC 2479
Sydney Trains v Gary Hilder [2020] FWCFB 1373