Mustapha Kabidi v Metro Trains Melbourne Pty Ltd
[2020] FWC 6941
•23 DECEMBER 2020
| [2020] FWC 6941 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mustapha Kabidi
v
Metro Trains Melbourne Pty Ltd
(U2020/9277)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 23 DECEMBER 2020 |
Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] On 7 July 2020, Mr Mustapha Kabidi made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Metro Trains Melbourne Pty Ltd (Metro). Mr Kabidi seeks reinstatement.
[2] Metro denies that Mr Kabidi was unfairly dismissed.
Hearing and Witnesses
[3] Mr Kabidi’s application was the subject of a hearing before me on 5 and 6 October 2020.
[4] Pursuant to section 596 of the Act, Mr Tim Kaine of Kaine Law appeared on behalf of Mr Kabidi. Ms Jessica Gillam, Industrial Relations Manager, appeared for Metro.
[5] Mr Kabidi gave evidence on his own behalf.
[6] The following witnesses gave evidence on behalf of Metro:
• Nicole Maloney – Employee and Industrial Relations Specialist
• David Hutton – Group Manager South
• Kuljit Singh – Depot Train Driver Manager
[7] Mr Kabidi filed submissions in the Commission on 28 August 2020, a witness statement on 18 September 2020 and closing submissions on 22 October 2020. Metro filed submissions on 11 September 2020 and closing submissions on 29 October 2020.
Initial Matters
[8] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• Metro is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Mr Kabidi was an employee who had completed a period of employment with Metro of at least the minimum employment period;
• at the time of dismissal Mr Kabidi was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[9] I have concluded that Mr Kabidi’s dismissal was not unfair. These are my reasons for that conclusion.
Factual Setting and Findings
Background
[10] Mr Kabidi commenced employment with Metro on 11 December 2006 in the position of Qualified Train Driver.
[11] On 15 April 2019 Mr Kabidi was issued with a final warning (Final Warning). It was found that Mr Kabidi had apprehended a customer that spat on his train, brought the customer into the drivers cab and drove the customer to Flinders Street station. Metro found that this conduct did not align with its values and behaviours and was in breach of L3-TSD-PRO-017 Cab Unattended Procedure and L2-TSD-PRO-029 Cab Travel Authority Procedure. The Final Warning was conditional on a number of matters, including that Mr Kabidi “write a letter of commitment, assuring Metro Trains there will be no repeat of this behaviour” 1(Letter of Commitment).
[12] Mr Kabidi provided a handwritten Letter of Commitment, dated 16 April 2019, in the following terms:
“Re: Incident at Newmarket
4 April 2019
Following our meeting 12th April 2019, I appreciate your feedback and acknowledge that upon reflection, the actions I took were not in accordance with Metro policies.
Subsequently I met with Kuljit Singh, Depot Train Driver Manager, Westall, yesterday. We agreed on the steps outlined in your letter of 15th April 2019.
Thank you for your support in this matter. I will continue to endeavour to comply with Metro Trains values, behaviours, policies & procedures.” 2
[13] Mr Kabidi contests the Final Warning and the factual findings which underpin it. Mr Kabidi says that the customer spat not only on the train but also on his face, and that he was authorised to bring the customer to Flinders Street. Mr Kaine devoted a considerable amount of time at the hearing to matters to do with the Final Warning and the circumstances that led to it. However, in closing submissions Mr Kabidi ultimately conceded, correctly in my view, that it seemed “safe to proceed on the basis that the reasons for dismissal did not include the [Final Warning].” 3
[14] Mr Kabidi was dismissed on 23 June 2020 for serious misconduct following allegations of a serious safety breach and dishonesty during the investigation process.
[15] The termination letter provided to Mr Kabidi on 23 June 2020 states as follows:
“This letter is to confirm your termination of employment, as advised to you in a meeting on Tuesday 23 June 2020 following an investigation regarding a serious safety breach. Following this investigation it was substantiated that:
• On Monday 1 June 2020 you exited the cab at Werribee at 13.38 on the off-side (non-platform) and proceeded to smoke while standing on the parallel running line after the passage of a goods train. Furthermore at the time of this incident it was alleged that you were not wearing your high visibility vest while standing in the danger zone and did not have track access granted from Metrol, as required.
This behaviour is in serious breach of L0-SQE-GDL-002 Personal Protective Equipment – Baseline Requirements for Users and L0- SQE-PRO-053 Reactive Track Access Procedure and Metro’s values and behaviours, particularly our zero harm “value” and this was not the first time you have breached company procedure.
In isolation this conduct is sufficiently serious to warrant the consideration of terminating your employment as your actions have breached a number of Metro Trains policies and procedures. However, in addition, the business is of the view that you have been dishonest throughout the investigation in an attempt to deliberately mislead the investigation and you have been unable to convince us otherwise.
For all the above reasons your employment with Metro is untenable. Your behaviour has been deemed as serious misconduct and has created an irretrievable breakdown in the trust between management and yourself which is necessary in any employment relationship. Consequently a decision was made to end your employment with Metro without notice.
…” 4
Enterprise agreement and Metro procedures
[16] It is useful to first set out the relevant provisions of the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2019 (Agreement), L0-SQE-GDL-002 Personal Protective Equipment – Baseline Requirements for Users (PPE Procedure) and L0-SQE-PRO-053 Reactive Track Access Procedure (Track Access Procedure).
[17] Clause 4.22 of the Agreement provides as follows:
“4.22 Counselling and Disciplinary Procedure
4.22.1 Procedure
(a) Depending on the nature of the complaint, the Company may:
i. conduct an investigation;
ii. dismiss the complaint without conducting an investigation; or
iii. counsel or speak informally with the complainant.
(b) If the Company investigates a complaint, the Employee will be notified in writing:
i. that the complaint has been received;
ii. of the nature of the complaint, the allegations made and the relevant details which were provided in support of the complaint;
iii. when, where and how it is proposed that the investigation will proceed including the date of a meeting with the Company; and
iv. that the investigation may result in disciplinary action, including termination at a later date.
4.22.2 Notification
(a) The Employee will not be required to respond to the matters in the notification until the meeting with the Company, but may respond in writing prior to the time of the meeting.
(b) The Employee will have at least three (3) working days on receipt of the Company’s notification and any scheduled formal meeting. The Employee may arrange for a support person/representative to attend the meeting if they wish to.
4.22.3 Suspension or Transfer to Alternate Role
(a) If the Company considers it is appropriate, having regard to the nature of the complaint, the Company may elect to:
i. suspend the Employee from normal duties;
ii. transfer the Employee to alternative duties; or
iii. transfer the Employee to an alternative work location.
(b) The Company will advise the Employee in writing of suspension or transfer and the period over which it extends.
(c) The Employee will continue to receive the same salary as per their ordinary role for this period of suspension or transfer.
4.22.4 Meeting
(a) The Employee must attend all meetings as directed and cooperate with any investigation into the complaint.
(b) The Employee must not hinder the Company’s ability to conclude the investigation effectively.
(c) The Employee may have a support person/representative present at all meetings that relate to the complaint. It is the Employee’s responsibility to make any necessary arrangements for their attendance.
(d) The unavailability of a support person/representative is not sufficient reason to postpone a meeting. A support person/representative may advocate for the Employee but any person who disrupts a meeting will be required to leave the meeting and the meeting will proceed without them.
(e) At the meeting the complaint will be discussed.
(f) All matters that are relevant to the complaint will be put to the Employee, and the Employee will be given sufficient time and the chance to respond.
(g) If necessary there may be more than one (1) meeting with the Employee.
4.22.5 Disciplinary Action
Where allegations of unacceptable behaviour, misconduct or serious misconduct are substantiated, the Company will give consideration to the particular circumstances in determining the appropriate disciplinary action.
4.22.6 Counselling or Additional Training
The Company may provide the Employee with counselling or give the Employee training in an area relevant to the complaint.
4.22.7 Warning
The Company may give the Employee a written warning that any repetition of behaviour which is unacceptable, or which constitutes misconduct, may lead to further disciplinary action, further warning or termination of employment.
4.22.8 Termination
(a) The Company may terminate the Employee’s employment if:
i. the Employee has already received a prior warning or warnings in relation to unacceptable behaviour or conduct; or
ii. the Employee’s behaviour or misconduct is serious.
(b) The Company will meet with the Employee if a determination is made to terminate the Employee and the advice will be given to the Employee a minimum of three (3) days after the meeting.
4.22.9 Demotion or transfer
(a) The Company may demote or transfer the Employee. The final decision will be determined by the Company on the following basis:
i. Demotion will only occur as an alternate to termination.
ii. The request for demotion must be voluntary
iii. No demotion will occur within any Driver grades, with the exception
of demoting Principal Driver Specialists and Driver Training Specialists to the role of Qualified Driver (SPOT).
(b) The Employee will be notified in writing of the decision and the date on which it will take effect.”
[18] The PPE Procedure relevantly provides as follows:
“2. Guidelines
The selection, fitting, use, care and replacement of PPE must comply with relevant Australian/New Zealand Standards and with the manufacturers specifications.
All personnel are responsible for:
• Following this guideline where applicable and complying with L0-SQE-PRO-019 Management of Personal Protective Equipment;
• Using or wearing PPE in accordance with any information, training or reasonable instruction;
• Using or wearing PPE in accordance with specific worksite requirements;
• Attending relevant awareness/training sessions related to PPE;
• Carrying out pre-use inspections;
• Informing Line Managers / Supervisors of any damage to, defect in or need to clean or decontaminate any PPE;
• Ensuring PPE is used correctly and suitable for the tasks performed and included on relevant JSEA/SWMS;
• Notifying their Line Manager / Supervisor of the need for PPE; and
• Notifying their Line Manager / Supervisor of any medical condition or other special requirements which will preclude the wearing of designated PPE.
High Visibility clothing is to be fastened at all times to maintain encirclement of the torso and to prevent snagging and/or entanglement.
Where the PPE baseline requirements do not safely suit the task at hand, the risk assessment for the task should identify additional PPE required.
Where additional PPE is required that is not listed as an approved item, separate approval must be sought by the department providing a supporting risk assessment, to the Divisional Safety Manager or Department for review.
In case of doubt, refer to local instructions for PPE requirements specific to the location / workplace being entered or task/s being undertaken.
Visitors and Contractors on MTM sites are to comply with the requirements of this procedure.
The following are mandatory baseline requirements when working:
…” 5
[19] The Track Access Procedure relevantly provides as follows:
“1 Purpose
The purpose of this procedure is to define the process for creating a position of safety within the Danger Zone for reactive track access to the Metro Trains rail network.
Reactive access to the Danger Zone may be required for circumstances such as, but not limited to:
• The detraining of passengers mid-section,
• Train inspection following an incident or fault finding requirements,
• Retrieval of lost property, or
• Fleet maintenance staff accessing a Train.
The object of this process is achieved by:
1. The securing of Absolute Signals at the ‘Stop’ position, and
2. The formal issue/receipt of the Reactive Track Access Request Form No: L4-SQE-FOR-125 as authority to enter the Danger Zone.
2 Scope
This procedure applies to:
• Train Drivers,
• Train Controllers (Metrol),
• Signallers,
• Customer Services Staff,
• Authorised Officers, and
• Fleet Maintenance staff (attending train faults on Running Lines under the direction of the Train Driver).
This process is not to be used for reactive track access during an incident where a site controller is co-ordinating access. (Emergency & Crisis Management plan)
3 Definitions
Absolute Signal – Fixed Signals that cannot be passed at the ‘Stop’ position without the authority of the Signaller; (ie: Home Disc & Dwarf Signals).
Access Requestor – The Person requesting network track access.
Blocking Facility – This includes lever sleeves or any appliance provided, including any software sleeve or blocking command or any other means provided to maintain the Absolute Signal controlling the entrance to the section at the ‘Stop’ position.
Controlling Signaller – The person in charge of the working of points and signals from an interlocking apparatus or signal control panel.
Danger zone – Refer to Procedure L1-SQE-PRO-054 Planning worksite protection in the rail corridor.
Defined Station Limits – As indicated in Rule 23C (Section 2) of the PTC 1994 Book of Rules and Operating Procedures, as amended.
DTRS – Digital Train Radio System
Form ‘A’ – Reactive Track Access request form used to gain track access
Form ‘B’ – Authorised personal assisting a disabled train. This applies to a TSO’s, Fleet Maintenance personal and Customer experience staff.
Multiple Adjacent Tracks – As defined by more than one track to cross.
Position of Safety – A place where people and equipment cannot be struck by rail traffic.
Rail Traffic – includes Trains, Track Machines, Track Vehicles, Road Rail Vehicles, hand trolleys and any other item of equipment fitted with rail guidance wheels.
Running Line – A track other than a siding which is used for through rail traffic movements. A Running Line is also sometimes referred to as a Main Line.
Siding – A portion of track where rail traffic vehicles can be placed clear of a running line.
Train Controller – The person directing rail traffic movements under the Train Control System.
Train Services Officer (TSO) – This includes Train Services Officers - Principle Drivers and Signaller Specialists.
4 Reactive Track Access Types
Safe access may be required for:
1. Access to the Danger Zone within defined Station Limits.
In this instance, access will be co-ordinated directly with the controlling Signaller in conjunction with the Train Controller this includes the defined Metrol controlled area.
2. Access to the Danger Zone outside defined Station Limits.
In this instance, access will be co-ordinated directly with the Train Controller, Metrol. This does not apply to the defined Metrol controlled area.
3. Access to the Danger Zone within a Siding.
In this instance, access will be co-ordinated directly with the controlling Signaller.
5 Communication
Recorded facilities such as DTRS and Signal box recorded phones are acceptable methods for transmitting the details of the reactive track access form L4-SQE-FOR-125.
Reactive Track Access Form L4-SQE-FOR-125 document must be completed at all times when applying for access.
6 FORM A - Reactive Track Access Request
Form A - is required for gaining access to the rail corridor for reactive operations to establish a Position of Safety within the Danger Zone.
For example:
• The Train Driver may require protection on the adjacent running line.
• Customer experience staff requiring protection for accessing the danger zone.
6.1 Gaining Network Track Access
The Access Requestor must:
1. At all times personally retain the Reactive Track Access Form A.
2. Complete Section 1 of Form ‘A’ and alert the controlling Signaller or Train controller using the following options:
a. Transmit the details to the signaller/train controller via a recording facility as applicable and gain a Repeated back O.K time,
‘or’
b. Physically Hand the completed Section 1 of Form ‘A’ form to the Controlling Signaller.
6.2 Confirming Access has been granted by train controller or local signaller
Before access can be granted to the requestor the following process must be followed;
The Signaller/Train Controller must:
1. Ensure the section of track requested is clear of Rail Traffic and that any movement in the section has been confirmed as stationary on the approach to or cleared beyond the point of access.
2. In situations where a signaller is granting access, consultation must first be sought with the train controller.
3. Arrange for the protecting absolute signals to be secured at the ‘Stop’ position with blocking facilities applied.
4. Complete section 2 of form ‘A’ and alert the controlling Signaller or Train controller using the following options:
a. transmit the completed section 2, form ‘A’ details to the access requestor via a recording facility and gain a Repeated Back O.K time,
‘or’
b. Hand the completed section 2, Form ‘A’ to the access requestor and gain their signature in the train register book.
Note: The Driver must:
If applicable;
c. In track circuited area apply the network emergency track circuit jumper cable to the adjacent track and at a point opposite the intended inspection area
5. The access requestor may then access the danger zone as necessary.
…” 6
[20] The definition of Danger Zone is contained in Metro Procedure L1-SQE-PRO-054 Planning worksite protection in the rail corridor and provides as follows:
“Danger Zone – is all space within 3 metres horizontally from the nearest rail and any distance above or below this zone including being on the line, unless a Position of Safety exists or can be created.” 7
[21] The definition of Position of Safety is elucidated also in this procedure and provides as follows:
“6. Position Of Safety (POS)
A POS is where people or equipment cannot be struck by rail traffic. This could be one or more of the following:
• Outside the Danger Zone.
• In an area protected by a method of protection which provides for Exclusive Occupancy of the track.
• In front of a stationary train in accordance with the procedure ‘Using a Train for Protection’ (L1-SQE-PRO-038).
• Behind the yellow line on a station platform (or 1.5 metres from the platform edge if no line exists).
• Behind a demarcation line, where the line is located a minimum of 2.4 metres from track centre.
• Behind a suitable fixed barrier, where the fixed barrier is located a minimum of 2.135 metres from track centre.
• An area within the Danger Zone, as determined by the hazard assessment where people or equipment clearly cannot be struck by rail traffic.
A Running Line can only be used as a POS in an area protected by a method of protection which provides for Exclusive Occupancy of the track or where rail traffic movements are controlled through a work site by the application of Track Force Protection.
Bunting and para-webbing do not prevent personnel, equipment or machinery from obstructing the track and therefore must not be used as a Suitable Fixed Barrier. Bunting and para-webbing can be used as demarcation fencing only.
…” 8
Werribee incident on 1 June 2020
[22] It is uncontested that on 1 June 2020 after arriving at Werribee station Mr Kabidi exited the cab of the train on the off side (non platform side) and smoked a cigarette while standing beside his train in the pit area. 9 It is also uncontested that Mr Kabidi was not wearing a high visibility vest10 and did not have access granted from the control centre (Metrol) to enter this area11 (Werribee Incident).
[23] Mr Kabidi’s evidence is that on 1 June 2020 after arriving at Werribee he secured the cab and was walking down the platform towards the staff area to take a break. A cleaner approached him and said she needed to carry out COVID-19 cleaning of the cab. 12 He said that as it was not permissible to leave the cab unattended he agreed to let the cleaner in.13 He says that he was uncomfortable being in the cab with the cleaner and was concerned about the safe distancing health directions and being too close to the cleaner in the cab. He says that he decided to have a cigarette on the tracks next to the cab whilst keeping an eye on the cleaning process. He says that he was in the pit area for between one and one half to two minutes.14
[24] I reject that evidence. CCTV footage of the Werribee Incident 15 demonstrates that Mr Kabidi remained in the cab for the entire period that the cleaner was cleaning the cab and only exited the cab into the pit area to smoke after the cleaner had left. Further, the CCTV footage demonstrates that Mr Kabidi was standing in the pit area smoking for approximately four and one half minutes16 and that while in the pit Mr Kabidi was looking at his mobile telephone. Further, Mr Kabidi agreed under cross examination that while in the pit he was looking at his phone.17
[25] Accordingly, I find that on 1 June 2020 at Werribee station Mr Kabidi exited the cab on the off side and descended into the pit area to smoke a cigarette for approximately four and one half minutes. I find that Mr Kabidi remained in the cab while the cleaner was present. His actions in accessing the pit to smoke were therefore unrelated to any discomfort Mr Kabidi may have had about remaining in the cab with the cleaner or any concern in relation to social distancing requirements. I find that whilst in the pit Mr Kabidi was looking at his telephone and was not wearing a high visibility vest.
[26] Mr Kabidi’s behaviour at Werribee was reported to Metrol who advised Mr David Ross, Duty Manager, who in turn informed Mr David Hutton, Group Manager South. 18 Mr Hutton viewed the CCTV footage, identified the driver as Mr Kabidi and directed Mr Ross to meet Mr Kabidi on arrival at Flinders Street station. Mr Kabidi acknowledged the Werribee Incident to Mr Ross.19
[27] At Mr Hutton’s direction Mr Kabidi was made “non-active”; that is, he was directed not to perform train driving duties. 20
[28] On 2 June 2020 Mr Singh, Depot Manager, viewed the CCTV footage of the Werribee Incident. 21 He discussed the CCTV footage with Mr Hutton and it was agreed to raise the matter with Ms Nicole Maloney, Employee and Industrial Relations Specialist – People.22
[29] Mr Singh contacted Ms Maloney by telephone on 2 June 2020 and informed her that he had viewed CCTV footage of the Werribee Incident on 1 June 2020 which showed Mr Kabidi exiting his cab on the off side and smoking while standing on the parallel running line. Mr Singh told Ms Maloney that Mr Kabidi was not wearing a high visibility vest while standing in the danger zone and did not have track access authority granted by Metrol. 23 Based on this information Ms Maloney considered there to be enough information to warrant a formal disciplinary investigation.24
Allegations
[30] On 3 June 2020 Mr Kabidi was issued with a letter in the following terms:
“Dear Mustapha,
Re: Meeting Request
Metro trains has serious concerns regarding your behaviour and conduct in your role of Professional Train driver. In particular, it has been alleged on Monday 1 June 2020 you were involved in a preventable safety breach whereby you exited the cab at Werribee at 13:38 on the off side (non-platform) and proceeded to smoke while standing on the parallel running line after the passage of a goods train. Furthermore, at the time of this incident it is alleged you were not wearing your high visibility vest while standing in the danger zone and did not have track access authority granted from Metrol, as required.
If substantiated, this behaviour is in breach of ‘L0-SQE-GDL-002 Personal Protective Equipment – Baseline Requirements for Users’ and ‘L0-SQE-PRO-053 Reactive Track Access Procedure’ and Metro’s values and behaviours, particularly our ‘zero harm’ value.
Mustapha, as you are aware we met with you in April 2019 to discuss concerns around your behaviour, conduct and adherence to Metro policy and procedure. At the time, a decision was made to issue you a final warning as you provided a commitment to us that you would adhere to all Metro policy moving forward and there would be no further incidents of that nature.
As such, we have serious concerns around the recent allegations made and would like to discuss further. I have arranged a meeting to be held on Tuesday 9 June 2020 at 14:00 at 700 Collins Street, Docklands. In attendance will be David Hutton (Group Manager), Nikki Maloney (IR/ER Specialist) and myself.
If you choose, you may bring a person to the meeting to support you. That person may be a union representative, friend, colleague or family member, but it is your responsibility to check and determine their availability in good time prior to the meeting. If you would like to bring a support person, please let me know the name of the person attending so that appropriate arrangements can be made for the meeting day.
This meeting is confidential and we ask you not to discuss this matter with anyone else in the workplace other than with those who may be supporting you. Should you require further assistance in this matter please contact the Metro Employee Assistance Program provider, Assure Programs Ph: [number redacted].
If the allegation is substantiated, depending on the findings, a result of this investigation may be a disciplinary outcome up to and including termination of employment.
Should you have any questions please feel free to contact myself on [number redacted].” 25 (Allegations)
[31] Mr Hutton’s evidence is that he asked Mr Singh to request the CCTV team to review Mr Kabidi’s shifts for the preceding fortnight to identify any other locations where similar behaviour may have occurred. 26 CCTV footage is only retained for 14 days.27 Under cross examination Mr Hutton said that reviewing retained prior CCTV footage was “good practice” in an investigation.28 I accept that evidence. Mr Singh’s uncontested evidence is that on 9 June 2020 the CCTV team told him that CCTV footage demonstrated two other occasions in the preceding fortnight when Mr Kabidi had been smoking in the danger zone, one at Frankston (Frankston Incident) and the other at Pakenham (Pakenham Incident). On both occasions Mr Kabidi was not wearing a high visibility vest.29 Mr Hutton’s evidence is that he reviewed the CCTV footage from Frankston and Pakenham30 on the morning of 9 June 2020 prior to the meeting with Mr Kabidi. Mr Hutton’s evidence is that that footage showed that Mr Kabidi had on both occasions exited his cab on the off side and entered the danger zone to smoke a cigarette.31 He was not wearing a high visibility vest on either occasion.32 I accept that evidence.
[32] Ms Maloney’s evidence is that immediately prior to the meeting on 9 June 2020 (9 June Meeting) she met with Mr Hutton and Mr Singh who informed her that they had further footage of Mr Kabidi exiting his cab and entering the danger zone to smoke (the Frankston Incident and the Pakenham Incident). 33 Ms Maloney advised Mr Hutton and Mr Singh that these further allegations were first required to be put to Mr Kabidi in writing and therefore could not be raised at the meeting that day. However, she advised that Mr Kabidi could be asked if he had engaged in similar behaviour previously.34 Ms Maloney’s evidence is that she considered that if Mr Kabidi advised that he had previously smoked on track then there would be no need for further allegations regarding the Frankston Incident and the Pakenham Incident to be put to him.35 I accept that evidence.
Meeting on 9 June 2020
[33] At the 9 June Meeting Mr Kabidi acknowledged that he had smoked on the tracks at Werribee 36 but said that he had assessed the situation and determined that there was “zero risk” of harm to anyone, including himself because a goods train had just passed and another was not due “for a while”, there was a level crossing which would activate if a train approached, the track was straight, there was good visibility and there was a speed restriction of 65 kilometres per hour in place. He also says that he said that he was on his way to have a break when a cleaner approached him to clean the cab and he was stressed about the COVID-19 pandemic and he had had a dental procedure the day before and was feeling anxious.37 However, under cross examination he agreed that he did not raise these latter issues with his manager at any time and that his dental procedure did not preclude him from performing his duties.38 I reject any suggestion that they provide an explanation for Mr Kabidi entering the pit to smoke on 1 June 2020.
[34] Mr Kabidi’s further evidence is that Ms Maloney raised the Final Warning at the 9 June Meeting. 39 He says that in response he told Ms Maloney that the findings in the Final Warning were incorrect40 and that he had asked Mr Hutton to verify the details of the incident. He said he had been forced to sign the letter containing the Final Warning and that Mr Hutton had told him to “‘just sign it and move on’ in no uncertain terms”41 and that he had done so because he was intimidated and believed he had no choice.42 He says that Ms Maloney said words to the effect of “that changes everything. We have to review the April 2019 incident.”43
In his witness statement Mr Kabidi states that Mr Hutton than asked him whether “I had ever done that before?”. However, in his oral evidence in chief Mr Kabidi said that Ms Maloney asked him “have you done it before, smoking, have you done it before?” 44 Mr Kabidi’s evidence is that he said he could not recall.45 At hearing Mr Kabidi’s oral evidence was that at the 9 June Meeting he “honestly did not recall if I have or not”. His further oral evidence was that he didn’t think that Ms Maloney asked him if he could confirm that this was the first time he smoked on track46 nor did he think that she asked him if an audit would show any previous incidents of a similar nature.47 Under cross examination he maintained that he did not remember Ms Maloney asking him these questions.48 However, under cross examination Mr Kabidi also said that Ms Maloney “asked me three times the same question”49 and then subsequently said “I was not being asked three times”.50 Under cross examination Mr Kabidi agreed that he was aware of the PPE Procedure and the Track Access Procedure.51 He agreed that in relation to the Werribee Incident he ought have been wearing a high visibility vest to enter the pit,52 that permission is required from Metro to go on to the track53 and that he breached the Track Access Procedure by entering the pit without authorisation.54 He also agreed that he acknowledged these breaches in the 9 June Meeting.55 He also agreed under cross examination that in the Werribee Incident he was standing in the danger zone.56
[35] Mr Hutton, Mr Singh and Ms Maloney’s evidence is also that at the 9 June Meeting Mr Kabidi acknowledged that he smoked on the tracks at Werribee but that Mr Kabidi did not agree that his conduct created a risk to safety. 57
[36] Ms Maloney’s evidence is that Mr Hutton asked Mr Kabidi whether he was aware of the Track Access Procedure and that Mr Kabidi confirmed he was. Ms Maloney says she then asked Mr Kabidi why he chose not to follow the procedure. Her evidence was that Mr Kabidi did not answer this question and instead changed the subject, 58 stating that he had a good history and would commit to following Metro procedures in the future. Ms Maloney’s evidence is that in response she asked Mr Kabidi how Metro could trust this commitment given he had already provided the Letter of Commitment and had breached procedure in the Werribee Incident.59 She says Mr Kabidi said that he did not accept the Final Warning and that the investigation was flawed.60 Ms Maloney’s evidence is that she told Mr Kabidi that was not her understanding of the findings and that Mr Hutton then elaborated on the findings of the investigation.61 Ms Maloney’s evidence is that during the 9 June Meeting Mr Kabidi was “preoccupied” with the Final Warning, did not accept Mr Hutton’s response and repeatedly challenged the Final Warning. Her evidence is that she eventually informed Mr Kabidi that the Final Warning remained however she would review the investigation and inform him if there were any changes at a subsequent meeting. Ms Maloney denies that she said, “this changes everything”.62 Ms Maloney’s evidence is that she asked Mr Kabidi whether this was the first time he had smoked on track or whether this was a behaviour he had engaged in previously. Her evidence is that Mr Kabidi said he had never done this before, and it was the first time. Ms Maloney says she asked Mr Kabidi if he could confirm that this was the first time he had smoked on track and he said yes. She says that she asked Mr Kabidi if an audit would show any previous incidents of a similar nature and he said no.63 Under cross examination Ms Maloney said she asked this question three times because she wanted to give Mr Kabidi every opportunity to be honest64 and the answers he gave did not correlate with the information available at that time.65
[37] Mr Hutton and Mr Singh’s evidence as to the 9 June Meeting is consistent with that of Ms Maloney. 66 In particular, under cross examination Mr Hutton’s evidence in relation to Mr Kabidi’s response to questions regarding smoking on track previously was consistent with that of Ms Maloney.67
[38] I prefer the evidence of Ms Maloney as to the 9 June Meeting over that of Mr Kabidi. Firstly, I found Ms Maloney to be a credible witness who gave clear, direct and consistent evidence. She presented as professional, competent and thoughtful. I find it improbable that she made the statements Mr Kabidi attributes to her regarding the Final Warning. Secondly, aspects of Mr Kabidi’s oral evidence as to the 9 July Meeting, for example who asked him whether he had smoked on track before, were not consistent with his witness statement. Thirdly, Mr Kabidi’s evidence as to the 9 June Meeting was often, even while giving evidence in chief, unresponsive and prone to digression. Under cross examination his evidence as to the questions he was asked by Ms Maloney in the 9 June Meeting was contradictory and inconsistent. In this regard I also note that Mr Kabidi does not deny that Ms Maloney asked him the questions she asserts; rather he says he does not think she did. He also says however that she asked him that same question “three times”. 68 Accordingly, I do not consider that Mr Kabidi’s evidence as to what he was asked by Ms Maloney at the 9 June Meeting regarding whether he had smoked on track before, and his responses to those questions, may be relied upon. Fourthly, I found aspects of Mr Kabidi’s evidence as to the 9 June Meeting, including his assertion that at that time he could not recall whether he had smoked on track before to lack credibility, most particularly in light of the CCTV Footage which clearly demonstrates that Mr Kabidi had smoked on track at Frankston, and possibly Pakenham (I address this later in this decision) 15 and nine days earlier, respectively. Fifthly, I consider that the questions Ms Maloney says she asked Mr Kabidi are consistent with her having been informed prior to the 9 June Meeting that there was CCTV footage of Mr Kabidi smoking on the tracks at Frankston and Pakenham. Sixthly, I also consider that the events that followed the 9 June Meeting, as set out in paragraphs [43]-[52] below are consistent with Ms Maloney’s evidence as to Mr Kabidi’s responses in the 9 June Meeting. Finally, Ms Maloney’s evidence is corroborated by and consistent with the evidence of Mr Hutton and Mr Singh, noting that Mr Singh’s evidence as to the 9 June Meeting was not in any way challenged by Mr Kabidi.
[39] In his final written submissions Mr Kabidi submits that there has been “extensive collaboration” between the Respondent’s witnesses and that this should be borne in mind by the Commission in its consideration of whether Mr Kabidi was dishonest in the 9 June Meeting or at all in relation to the investigation. 69 Mr Kabidi submits that an inference ought be drawn that all of the witness statements of the Respondent’s witnesses were prepared and drafted by the same person due to each of the statements initially incorrectly referring to the 9 June Meeting as occurring on 6 June 2020. Mr Kabidi submits that this error was made at least six times in Ms Maloney’s statement, at least five times in Mr Hutton’s statement and once in Mr Singh’s statement and that it is highly unlikely for three people to make the same mistake coincidentally.70 I accept that the consistency of the error does give rise to some question as to how the statements were prepared. However, for the following reasons I decline to draw the inference sought. Firstly, Mr Kaine did not directly put to any of the Respondent’s witnesses that they had collaborated or colluded in their written evidence. Secondly, the only witness Mr Kaine questioned in relation to the preparation of their witness statement was Mr Hutton. Under cross examination Mr Hutton’s evidence was that he was provided with a proforma template witness statement71 by, he believed, Ms Maloney,72 that he prepared the statement himself73 and typed it contents74 and that it was “absolutely” completely his own document.75
[40] Accordingly, I find that at the 9 June Meeting Mr Kabidi, relevantly:
• acknowledged that he smoked on the tracks at Werribee on 1 June 2020;
• confirmed that he was aware of the Track Access Procedure and acknowledged that he breached that procedure by entering the pit without authority;
• raised the Final Warning in response to a question from Ms Maloney regarding the Letter of Commitment;
• was asked by Ms Maloney if this was the first time that he had smoked on track and he said that he had never done it before and this was the first time;
• was asked by Ms Maloney to confirm that this was the first time he had smoked on track and he confirmed it was; and
• was asked by Ms Maloney if an audit would confirm any incidents of a similar nature and he said no.
[41] Further, I do not consider that the questions Mr Maloney asked were confusing to Mr Kabidi or that he did not understand that he was being asked if he had ever smoked on track previously.
[42] It is uncontested that the Pakenham Incident and the Frankston Incident were not specifically put to Mr Kabidi during the 9 June Meeting. 76
[43] Following the 9 June Meeting Ms Maloney, Mr Hutton and Mr Singh agreed to issue a further letter of allegation to Mr Kabidi in relation to the Frankston Incident and the Pakenham Incident. It was also agreed that allegations of dishonesty should be put to Mr Kabidi arising from his responses to Ms Maloney’s questions regarding whether he had smoked on track on other occasions. 77 Further, it was agreed that Mr Kabidi would be asked to show cause as to why his employment should not be terminated.78
Letter of 18 June 2020
[44] By letter dated 18 June 2020 (18 June Letter) 79 Mr Kabidi was advised that Metro had concluded that the Allegations had been substantiated and that Metro considered Mr Kabidi’s conduct to be in breach of the PPE Procedure, the Track Access Procedure and Metro values, particularly the “zero harm” value. The 18 June Letter also, relevantly, provides as follows:
“…Furthermore, not only does Metro consider your response unacceptable as you have communicated a lack of understanding and concern around safety, but, it is also alleged that you have been dishonest with us during the course of the investigation.
In particular, in your response to the allegations made against you, three times you stated that this was the first and only time you exited on the off side and had a cigarette in the danger zone. It is alleged that this was a false and dishonest response as the information available to us shows that in May 2020 alone there have been at least two other occasions you have engaged in this behaviour, including at Frankston on the 17th May at 1630 and at Pakenham on the 23rd May at 1622.
Given your history, and the new aforementioned allegations, it is our view that you have not maintained the standard required of a Metro Trains employee. Metro has lost confidence and trust in your ability to adequately perform your role of Train Driver. As such, we now ask you to show cause as to why your employment should not be terminated.
A meeting has been scheduled for Tuesday, 23 June 2020 at 14:00 at 700 Collins Street, Docklands for you to show cause and this will also serve as an opportunity for you to respond to the subsequent allegations made against you…” 80 (Dishonesty Allegations).
[45] In addition, the 18 June Letter provides that Mr Kabidi may bring a support person to the meeting and that an outcome of the meeting may include the termination of Mr Kabidi’s employment.
[46] Mr Kabidi’s evidence is that whilst he read the 18 June Letter, he did not understand the word “substantiated” and did not fully understand the meaning of the phrase “show cause”. 81 He says he believed that the only issue being considered was the Werribee Incident and he did not understand that there were other issues he needed to respond to. He says that he did not understand that his employment might be terminated or that the incidents referred to in the 18 June Letter were the Frankston Incident and the Pakenham Incident.82 Whilst it may be that Mr Kabidi did not understand the precise meaning of “substantiated” and “show cause”, I do not consider that Mr Kabidi was in any way confused that Metro had concluded that he had engaged in the conduct alleged in the Allegations or by the process being undertaken, that further allegations had been put to him regarding the honesty of his responses in the 9 June Meeting or that termination of employment was a potential outcome. Firstly, I consider the terms of the 18 June Letter to be clear. Secondly, in oral evidence in chief Mr Kabidi said that he understood that it was alleged that he had been dishonest,83 and that he understood that the Frankston Incident and Pakenham Incident were now being considered.84 Under cross examination, whilst maintaining that he did not understand the meaning of “show cause”, he agreed that he knew he was being asked to tell Metro why he should remain employed.85 Thirdly, Mr Kabidi also agreed under cross examination that he did not seek clarification or ask for assistance as to what the 18 June Letter meant, or raise in either the 9 June Meeting or the meeting on 23 June 2020 that he did not understand what was happening or was confused.86 Finally, that Mr Kabidi was confused or did not understand the process is also unable to be reconciled with the fact that on 22 June 2020, prior to the meeting and without request, he emailed a response to the 18 June Letter to Mr Singh.87 That response is stated to be “Further to [Metro’s] letter of 18 June 2020” and expresses Mr Kabidi’s “deepest regrets and sincerest apologies for [my] breach of safety regulations”. It further provides that Mr Kabidi “understand[s] the serious nature of the circumstances.”
Meeting of 23 June 2020
[47] It is uncontested that the meeting on 23 June 2020 was attended by Mr Kabidi, his support person Mr Francis, Ms Maloney, Mr Hutton and Mr Singh (23 June Meeting).
[48] Ms Maloney’s evidence is that at the 23 June Meeting she asked Mr Kabidi to respond to the Dishonesty Allegations. She says that Mr Kabidi stated that he had not said he had never smoked on track previously; rather he had said he did not recall. Her evidence is that Mr Kabidi said that if there was footage of the incidents, then the incidents had occurred. She says she asked Mr Kabidi if he would like to view the footage. He declined saying that if there was footage the incident had happened. 88 Ms Maloney’s evidence is that she told Mr Kabidi that she found it difficult to accept his claim that at the 9 June Meeting he had said he did not recall as it was her recollection that he had said on three occasions that this was “his first instance” and that if that was his response at the 9 June Meeting she found it implausible given that CCTV showed two further incidents in May 2020 alone. She says she asked Mr Kabidi to explain how that could be the case, but he did not answer and instead changed the subject.89 She says that Mr Kabidi again challenged the Final Warning. Ms Maloney says she confirmed that she had reviewed the information available and confirmed that Metro remained of the view that the Final Warning was appropriate.90 She says that in response to whether there was anything further Mr Kabidi wanted to put forward, he said he was a good driver and Mr Francis asked Mr Singh whether he agreed. She says Mr Singh agreed that Mr Kabidi was a good driver but said that his behaviours were an issue.91 Ms Maloney says a break in the meeting then occurred and she, Mr Hutton and Mr Singh considered Mr Kabidi’s response. They discussed that the Allegations had already been substantiated. They determined that based on the CCTV footage Mr Kabidi had also smoked on track at Frankston and Pakenham and that Mr Kabidi did not dispute the incidents. They then considered the Dishonesty Allegations. Ms Maloney’s evidence is that she, Mr Hutton and Mr Singh all shared the same recollection of events from the 9 June Meeting that Mr Kabidi had on three occasions informed them that this was the first time he had smoked on track. On this basis they determined that the Dishonesty Allegations were also established. Given he had previously given a written commitment to adhere to Metro’s procedures and had broken that commitment and had been dishonest with Metro, they determined that termination was appropriate.92 Upon returning to the room Mr Kabidi was advised that his employment was terminated, effective immediately, without notice.93 The Termination Letter was provided after the 23 June Meeting.94
[49] Mr Hutton and Mr Singh’s evidence as to the 23 June Meeting was consistent with that of Ms Maloney. 95
[50] In his witness statement Mr Kabidi says that the 23 June Meeting was brief. He says that during the meeting Mr Francis asked Mr Singh to speak to Mr Kabidi’s ability as a train driver and that Mr Singh said he was a very good driver, was friendly and helpful to colleagues and had been called upon several times to relieve drivers and move trains. 96 He says the meeting then ended and he and Mr Francis stepped outside. Upon returning, Mr Hutton advised him that his employment was terminated.97 He was provided with the Termination Letter in the post sometime later.98 In his oral evidence in chief Mr Kabidi said that he understood at the 23 June Meeting that the Frankston Incident and the Pakenham Incident were being considered as part of the investigation99 and he was told there was CCTV footage of those incidents.100 His further oral evidence in chief was that he also understood that it was alleged that he had been dishonest in the 9 June Meeting.101 Under cross examination he said that he understood that the 23 June Meeting was also to provide him with an opportunity to respond to the Dishonesty Allegations.102 As to the CCTV footage, his evidence under cross examination was firstly that he didn’t remember if he was offered an opportunity to view the CCTV footage of the Frankston Incident and the Pakenham Incident103 at the 23 June Meeting but he later agreed that he had been asked if he would like to see that footage and had declined.104
[51] I prefer the evidence of Ms Maloney as to the 23 June Meeting over that of Mr Kabidi. Firstly, Mr Kabidi’s evidence in chief as to the 23 June Meeting was very selective. He did not attest to any matters going to the Dishonesty Allegations, the CCTV footage of the Frankston Incident and Pakenham Incident or the reagitation by him of the Final Warning. He focused on his ability as a train driver to the exclusion of the remainder of the meeting content. I do not consider his evidence as to the 23 June meeting to accurately reflect what occurred. I consider Ms Maloney’s evidence to be more credible and to more accurately reflect what occurred at the meeting. Secondly, Mr Kabidi’s evidence was, at times, inconsistent. For example, in relation to whether he was offered an opportunity to view the CCTV footage of the Frankston Incident and Pakenham Incident. Thirdly, Ms Maloney’s evidence is consistent with and supported by Mr Hutton and Mr Singh, noting in particular that Mr Singh’s evidence was not challenged in any way. Accordingly, I find that at the 23 June Meeting:
• Mr Kabidi was asked to respond to the Dishonesty Allegations, to which Mr Kabidi said that at the 9 June Meeting he had not said he had never smoked on track before; rather he had said that he did not recall;
• Mr Kabidi was offered an opportunity to view the CCTV footage of the Frankston Incident and the Pakenham Incident. He declined to do so and said that if there was footage it happened;
• Ms Maloney told Mr Kabidi that it was her recollection that on 9 June 2020 he had said on three occasions that Werribee was the first incident of him smoking on track;
• Ms Maloney told him that if that is what he said she found it implausible given the CCTV footage;
• Mr Kabidi raised the Final Warning. Ms Maloney told him that she had reviewed the information available and a Final Warning was considered appropriate;
• In response to being asked if there was anything further Mr Kabidi wanted to put forward, he said he was a good driver. This was agreed to by Mr Singh however Mr Singh said that Mr Kabidi’s behaviours were an issue.
[52] I also find that Ms Maloney, Mr Hutton and Mr Singh considered Mr Kabidi’s response and determined that both the Allegations and the Dishonesty Allegations were substantiated. I find that they also considered the Commitment Letter and determined that Mr Kabidi had broken the commitments in that letter. On these bases they determined that termination of employment, effective immediately, was the appropriate disciplinary outcome.
Was the Dismissal Harsh, Unjust or Unreasonable?
[53] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[54] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 105
[55] I set out my consideration of each below.
Was there a valid reason for Mr Kabidi’s dismissal? – Section 387(a)
[56] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” 106 and should not be “capricious, fanciful, spiteful or prejudiced.”107 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.108 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[57] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.109 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 110
[58] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw, 111 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained”112 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”113 or “circumstances pointing with a wavering finger to an affirmative conclusion”.114 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.115
[59] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 116 In Greyhound Racing Authority,117Santow JA noted:
“…The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].” 118
[60] The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.” 119
[61] The Termination Letter asserts that:
• on 1 June 2020 at Werribee Mr Kabidi committed a serious safety breach in breach of the PPE Procedure, the Track Access Procedure and Metro values and behaviours (Safety Breach); and
• Mr Kabidi was dishonest during the investigation into the Safety Breach (Dishonest Conduct).
[62] Consistent with the Termination Letter, the Respondent submits that the reasons for Mr Kabidi’s dismissal were the Safety Breach and the Dishonest Conduct. 120 The Respondent does not rely on the Final Warning to justify Mr Kabidi’s dismissal, but says nonetheless that the Letter of Commitment is “highly relevant”.121 In relation to the Safety Breach, the Respondent submits that Mr Kabidi was aware of and had been trained in the Respondent’s safeworking procedures, including the PPE Procedure and the Track Access Procedure and was required to comply with them.122 It submits that a failure to comply with those procedures constitutes a failure to comply with a reasonable and lawful direction and constitutes serious misconduct.123 As to the Dishonest Conduct, the Respondent submits that Mr Kabidi has changed his version of events throughout the investigation and these evidential discrepancies lead to the conclusion that he was untruthful.124 The Respondent submits that Mr Kabidi deliberately sought to mislead the investigation and was dishonest in his dealings through the investigation.125 It submits that dishonesty is a valid reason for dismissal.126
[63] In his submissions Mr Kabidi does not dispute that on 1 June 2020 at Werribee he exited the cab of the train on the off side and had a cigarette in the pit. 127 He also does not dispute that he was not wearing his high visibility vest at the time or that he did not have authority from Metro to enter the pit and that both were required of him.128 He submits however that the incident was an error of judgement and a minor breach at the lower end of the scale of culpability.129 He submits that the breach amounts to no more than “carelessness in failing to put on his high visibility vest” and in support of that submission refers to the evidence of Mr Hutton.130 Mr Kabidi further submits that it is conceded in the evidence that if he was wearing a high visibility vest he would not have been in breach of any procedures and the matter would never have been reported.131 He submits that the minor nature of the breach is supported by the Termination Letter which states in relation to the Safety Breach, that “in isolation this conduct is sufficient to warrant consideration of terminating your employment.” Mr Kabidi submits that this implies that the Safety Breach alone was “probably not a valid reason for dismissal.”132 Finally, in relation to the Safety Breach Mr Kabidi submits that “nothing happened apart from [Mr Kabidi] being in a place he should not have been for several minutes” and that in these circumstances his conduct cannot constitute a valid reason for dismissal.133
Did Mr Kabidi commit a serious safety breach on 1 June 2020?
[64] On Mr Kabidi’s own evidence, on 1 June 2020 he engaged in the conduct alleged against him. He concedes that he entered the pit at Werribee on 1 June 2020 to smoke a cigarette. He concedes he was required to wear a high visibility vest when entering the pit and was not. He concedes that he did not have authority from Metrol to enter the pit and was required to have this authority. He concedes he was aware of both of these requirements. Further, he ultimately agreed that the danger zone is three metres either side of any track 134 and although his evidence on this matter was somewhat evasive, he also ultimately agreed that at Werribee on 1 June 2020 he was in the danger zone.135 Accordingly, I find that Mr Kabidi’s conduct on 1 June 2020 at Werribee was in breach of the PPE Procedure and the Track Access Procedure and he was standing in the danger zone. I also find that Mr Kabidi was aware of the requirements of the PPE Procedure and the Track Access Procedure and that he was required to comply with them. He did not do so. His non-compliance was not the result of accident or inadvertence or any other extenuating factors. He chose to enter the pit to smoke a cigarette at Werribee on 1 June 2020 in full knowledge that such conduct was in breach of the PPE Procedure and the Track Access Procedure. I find that his conduct was deliberate and wilful.
[65] I therefore reject the submission that the breach amounts to no more than carelessness by Mr Kabidi in failing to put on his high visibility vest. Firstly, I have found that Mr Kabidi’s conduct was deliberate. Secondly, the contention that the breach relates only to the failure by Mr Kabidi to wear his high visibility vest is rejected. It is inconsistent with the Allegations, the evidence and the reasons for dismissal articulated in the Termination Letter. As to such a contention being supported by Mr Hutton’s evidence and the submission that it was conceded in the evidence that if Mr Kabidi had been wearing a high visibility vest he would not have been in breach of any procedures, I also reject those submissions. They do not accurately reflect the evidence given at the hearing. In relation to this matter the following exchange occurred between Mr Kaine and Mr Hutton:
“But people do go onto the ground around the tracks, near the tracks?---Correct, with appropriate authorisation and controls in place.
If he was wearing a vest would that have - would he have been - would he still have been considered to be committing a breach?---There was a number of breaches I think which we put to Mr Kabidi and yes, wearing a vest was one of them, if he had a vest on that wouldn't have been included.
So I mean what is the vest made of - I mean a vest is - it's just a visibility aid, it's not like a bullet proof vest or anything. If he was going to get run over by a train that's not going to protect him from that is it?---The vest is down at the administrative end of the hierarchy of controls, we don't consider it a high control but we do consider it an important control.
So what you're saying is if he was wearing a vest and he had the cigarette then there wouldn't have been any issue here?---No, I never said that.
Well I'm putting that to you then. If Mr Kabidi had been wearing his vest at the time of this incident would we be here today?---Potentially.
Because?---The breach of the reactive track access process.” 136
[66] The following further exchange occurred between Mr Kaine and Mr Hutton:
“So here it states 'and while you were standing in the danger zone you were not wearing the high visibility vest, and you did not have track access', so do you need both?---Yes.
Like, for an employee to go where Mr Kabidi went he would need to be wearing a high visibility vest and have track access authority?---Yes.
Not one or the other?---No.
Because it seems to have been put that I submit it's one or the other, not - and I think that's what you said in your evidence before that if he was wearing a high visibility vest this matter would not have even come to your - it wouldn't have even been reported, or if it was reported, it would not have continued further; is that correct?---That's not what I said before.
No? What's your evidence? Are you saying that both are required?---Yes.” 137
[67] Accordingly, it is clear that Mr Hutton’s evidence was that he considered Mr Kabidi’s conduct at Werribee on 1 June 2020 to be in breach of both the PPE Procedure and the Track Access Procedure. Further, he expressly rejected the proposition that if Mr Kabidi had been wearing his high visibility vest that “there wouldn’t have been any issue here”.
[68] Mr Kabidi contends that the breach was minor and relies upon the Termination Letter and the fact that “nothing happened”. I reject those submissions. As an employer, Metro has an obligation to ensure the safety of its employees. It also has an obligation to ensure the safety of passengers using its services, amongst other persons. Mr Hutton’s evidence was that safety procedures are developed and put in place to protect the safety of staff and passengers. 138 Ms Maloney and Mr Hutton both gave evidence that the rail environment is an inherently dangerous environment.139 Further, Ms Maloney and Mr Hutton both gave evidence that that is particularly so in the danger zone, due to trains running on the parallel line in the pit.140 Ms Maloney’s evidence was that that is why it is called the danger zone.141 Mr Hutton’s evidence was that the danger zone is designed to keep people out of the moving profile of the train.142 I accept their evidence as to these matters and for my part consider it incontestable that the rail environment is an inherently dangerous environment and that that is particularly so in the danger zone. Indeed, under cross examination Mr Kabidi also agreed that the danger zone is so called because it is unsafe for persons to be in that zone.143 Commitment and adherence to safety standards is an essential obligation of employees, especially in inherently dangerous workplaces.144 On 1 June 2020 Mr Kabidi entered the danger zone in breach of the PPE Procedure and Track Access Procedure. Further, he did so deliberately and wilfully and for no proper work-related purpose. In doing so, Mr Kabidi failed in his essential obligation to comply with Metro’s safety procedures, the purposes of which are to ensure the safety of employees and passengers in an inherently dangerous environment. I consider the potential for tragic and catastrophic consequences to be readily apparent. I therefore reject the contention that such a breach is minor. Further, that “nothing happened” is not to the point. Mr Hutton’s evidence was that Mr Kabidi’s conduct on 1 June 2020 constituted a serious safety breach due to the serious potential for harm that arose from that conduct145 including the potential to be struck by rolling stock, trauma to drivers, station staff, authorised officers and persons who witness such an occurrence, and lesser injuries related to falling and the ballast.146 Ms Maloney’s evidence was also that Mr Kabidi’s conduct on 1 June 2020 was serious because it was wilful and deliberate behaviour that created a serious risk to the safety of himself and others.147 Mr Kabidi’s submissions appear predicated on the need for a demonstrated consequence to have arisen for a significant safety incident or breach to crystallise. The purpose of Metro’s safety policies is to protect the safety of employees and passengers.148 The PPE Procedure sets out mandatory baseline requirements for the wearing of PPE, in accordance with relevant workplace health and safety obligations and the Rail Safety National Law.149 Mr Hutton’s evidence, which I accept, was that although the requirement to wear a high visibility vest was an administrative control in the hierarchy of control mechanisms, it was nonetheless an important control.150 The Track Access Procedure defines the process for creating a position of safety within the danger zone. I have already set out above the evidence regarding the danger zone and its intent being to keep persons out of the moving profile of the train. The Track Access Procedure provides that this is achieved by “the securing of Absolute Signals at the “Stop” position and the formal issue/receipt of the Reactive Track Access Request Form L4-SQE-FOR-125 as authority to enter the Danger Zone.” Mr Hutton’s evidence was that the appropriate authorisation and controls must be in place for a person to gain access to the track.151 His evidence was that for a driver to access the track, they must be authorised in accordance with section 6 of the Track Access Procedure, including having completed the requirements in relation to Form A of that procedure.152 I accept that evidence and consider it clear that the Track Access Procedure is designed to eliminate, so far as is reasonably practicable, the significant potential risks associated with accessing the danger zone. Accordingly, to focus on the absence of actual risk or the absence of demonstrated consequence is to misunderstand Metro’s safety obligations and its approach to assessing and managing risk in the workplace. Further, such an approach was rejected by the Full Bench in Bluescope Steel Limited v Knowles.153
[69] As to the Termination Letter, whilst I accept that the Termination Letter does talk of Mr Kabidi’s conduct on 1 June 2020 at Werribee being sufficiently serious “to warrant consideration” of the termination of his employment, I do not consider that when read as a whole it indicates that Metro did not consider that conduct justified dismissal or that it considered it to be a minor breach. Rather, I consider that the language used simply reflects the fact that Metro relied upon not only the Allegations but also the Dishonesty Allegations as reasons for Mr Kabidi’s dismissal. Secondly, Ms Maloney gave very clear evidence, that in her view Mr Kabidi’s conduct on 1 June 2020 was a serious safety breach 154 and further, in isolation, was serious misconduct sufficient to justify dismissal.155 Mr Hutton’s evidence as set out above, was also that Mr Kabidi’s conduct on 1 June 2020 constituted a serious safety breach due to the serious potential for harm that arose from that conduct.156
[70] Accordingly, I find Mr Kabidi’s conduct on 1 June 2020 at Werribee to be in breach of the PPE Procedure and the Track Access Procedure. I find that conduct to be serious due to the potential risk of harm it created and the deliberate and wilful nature of the breach.
Was Mr Kabidi dishonest in the 9 June Meeting?
[71] Mr Kabidi denies that he engaged in the Dishonest Conduct. He submits that there are “significant differences” between the Werribee, Frankston and Pakenham Incidents which make his responses to Ms Maloney’s “quite general questions” not necessarily incorrect. 157 He also submits that a “glaring deficiency” in the Dishonesty Allegation is the lack of any motive for him to be dishonest and that the Respondent has not offered any reason why he would be dishonest.158 He submits that he was “ambushed” by a question that was not in the Allegations,159 was under pressure at the 9 June Meeting trying to defend himself about an incident that occurred 15 months prior160 and his response was an automatic response of a person under stress and not a dishonest response.161 Further, he submits that English is his second language, having migrated to Australia from Morocco in 1992 at the age of 26 and that he has no formal education in Australia other than having undertaken the train drivers’ course and this provides a further reasonable explanation for his responses, contrary to the conclusion that he was being dishonest. Finally, he submits that dishonesty is a very serious allegation and requires proof or satisfaction to a higher level.162
[72] For the reasons that follow, I find that Mr Kabidi was dishonest in the 9 June Meeting.
Did Mr Kabidi smoke on the tracks at Frankston on 17 May 2020 and at Pakenham on 23 May 2020?
[73] I find that the CCTV footage shows Mr Kabidi standing on the track in both the Frankston Incident and the Pakenham Incident. In neither incident is he wearing a high visibility vest, nor did he have authorisation to enter the danger zone. In the Frankston Incident he is clearly smoking a cigarette. In the Pakenham Incident he also appears to be smoking a cigarette, although his evidence was that he did not think he was smoking, rather he was probably having something to eat. 163 Accordingly, even if Mr Kabidi was not smoking on the track at Pakenham, but was indeed having something to eat, I find that he had smoked on track on 17 May 2020 at Frankston. On that basis I find that Mr Kabidi’s responses to Ms Maloney at the 9 June Meeting were dishonest. I reject any suggestion that Mr Kabidi could not recall as to whether or not he had smoked on the tracks previously. I consider such an assertion implausible, most particularly given the Frankston Incident occurred on 17 May 2020.
[74] It is therefore not strictly necessary that I address the alleged “significant differences” between the three incidents. However, I do so for completeness. Mr Kabidi submits that at Frankston he was standing between his train and a wall and as such there “was no, or very little chance of danger.” It is uncontested that there is no parallel track in the Frankston Incident. There was therefore no risk of Mr Kabidi being struck by another train. However, Mr Kabidi’s focus on whether there was any actual risk of danger at Frankston once again fails to understand that it is an essential obligation that he comply with Metro’s safety procedures, the purpose of which is to establish processes to ensure the safety of employees and passengers. Mr Kabidi was standing on the track. He was therefore in the danger zone. He was not wearing his high visibility vest. He did not have track access authorisation to enter the track at Frankston. He was there to smoke a cigarette. His actions at Frankston were therefore in breach of the PPE Procedure and the Track Access Procedure. As to the Pakenham Incident, Mr Kabidi submits he was in the yard where trains are parked and “there is very little chance of a safety incident occurring.” 164 His evidence was that track access authorisation is not required for a driver to enter the yard165 and further, that it is common practice for drivers to congregate on the track in a yard.166 Mr Hutton’s evidence was that Pakenham is a terminating location167 and that trains are stabled in a siding at Pakenham.168 His evidence was that trains run up the track, stop, turn around and come back.169 He said that there is a three running line at Pakenham for V/Line and freight trains170 and there was therefore a live track between Mr Kabidi’s train and the trains stabled in the siding.171 He accepted that Pakenham might be described as a yard172 and that “siding” and “yard” are often used interchangeably.173 His evidence was that there was no reason for Mr Kabidi to be standing on the track at Pakenham and that he was not allowed or supposed to be there.174 His evidence was that there are designated walking paths and walking routes for train drivers across the network to ensure safety.175 These are used when drivers are finishing their shift or taking a meal break in order to access the depot.176 Ms Maloney’s evidence was that at Pakenham, Mr Kabidi was standing in the danger zone “where trains come in.”177 Her evidence was that the fact that Mr Kabidi was in the “yard” was irrelevant as he was still standing in the danger zone178 and that “trains run along that track.”179 I am unable to identify any aspect of the Track Access Procedure which exempts compliance with the access procedure in a yard or siding. I am also unable to identify any exclusion from the definition of danger zone relevant to a siding or yard. Indeed, the contrary appears to be the case. The Track Access Procedure at section 4 contains a specific provision dealing with accessing the danger zone in a siding.180 I also accept Mr Hutton’s evidence that there are designated walkways to be used by drivers across the network. I therefore reject Mr Kabidi’s evidence that authority to enter the “yard” at Pakenham was not required. Accordingly, at Pakenham, Mr Kabidi was standing on the track. He was in the danger zone. He was not wearing his high visibility vest. He did not have track access authorisation to enter the track and was required to have such authorisation. He was on the track to either smoke a cigarette or eat a sandwich. His actions at Pakenham were therefore in breach of the PPE Procedure and the Track Access Procedure. The fact that Mr Kabidi says other drivers congregate on the track at Pakenham, if that be the case, does not alter the fact that on 23 May 2020 at Pakenham Mr Kabidi breached both the PPE Procedure and the Track Access Procedure. Finally, I have previously addressed Mr Kabidi’s submissions based on actual risk and refer to and repeat those comments here.
[75] Accordingly, in all three incidents Mr Kabidi engaged in the same conduct. On each occasion his conduct is in breach of the same requirements of the PPE Procedure and the Track Access Procedure. On each occasion Mr Kabidi showed the samedeliberate and wilful disregard for compliance with Metro’s safety procedures. I reject the submission that there are any presently relevant substantial differences between the Werribee Incident, the Frankston Incident and the Pakenham Incident.
[76] I accept that dishonesty is a serious allegation and whilst not requiring a higher standard of proof, I accept that it is not a finding which ought be made lightly or be based on inexact proof. I otherwise reject Mr Kabidi’s submissions regarding the Dishonesty Allegations.
[77] Firstly, I have found that Mr Kabidi smoked on the tracks, at least at Frankston on 17 May 2017. I have also found that at the 9 June Meeting Ms Maloney asked Mr Kabidi whether he had smoked on track before and he said that he had never done it before, and that Werribee was his first time. I have found that he was asked by Ms Maloney to confirm that this was the first time he had smoked on the track and he confirmed it was. I have found that he was asked by Ms Maloney if an audit would confirm any incidents of a similar nature and he said no. I therefore reject the contention that Ms Maloney asked Mr Kabidi general questions that may render his alleged response not necessarily incorrect, based on his view that there are “significant differences” between the Werribee, Frankston and Pakenham Incidents.
[78] Secondly, Mr Kabidi’s submissions regarding the issue of motive for his dishonesty are, in my view, misconceived. The only issue for determination is whether Mr Kabidi was, in fact, dishonest in his responses at the 9 June Meeting. I have found he was. However, in circumstances where Mr Kabidi was unaware that Metro had CCTV footage of the Frankston Incidents and the Pakenham Incidents at the time he provided those responses, I consider there is indeed a plausible explanation as to why Mr Kabidi would have been dishonest.
[79] Thirdly, in my view the evidence does not support a conclusion that at the 9 June Meeting Mr Kabidi was under pressure to defend himself in relation to the Final Warning. The Final Warning was not relied upon to justify Mr Kabidi’s dismissal nor is it relevant other than in relation to the Letter of Commitment (which I address later in this decision). Rather, I consider that the evidence at hearing establishes that it was Mr Kabidi who was preoccupied with the Final Warning and sought to agitate that matter at the 9 June Meeting. I address Mr Kabidi’s submission that he was “ambushed” by Ms Maloney’s questions later in this decision.
[80] Finally, as to Mr Kabidi’s submission that his English language ability and lack of formal education provides an explanation for his responses, I have previously rejected Mr Kabidi’s evidence as to his responses at the 9 June Meeting. Further, having observed Mr Kabidi giving evidence and his conduct during the hearing of this matter, I am entirely satisfied that Mr Kabidi’s grasp of the English language and absence of formal education was in no way an impediment to him honestly responding to Ms Maloney at the 9 June Meeting.
Findings as to valid reason
[81] Accordingly, I find that on 1 June 2020 Mr Kabidi breached the PPE Procedure and the Track Access Procedure. I find that conduct was wilful and deliberate and was undertaken in full knowledge of the requirements under the PPE Procedure and the Track Access Procedure. I also find that Mr Kabidi was dishonest in the meeting on 9 June 2020. I am satisfied that Mr Kabidi’s conduct on 1 June 2020 and 9 June 2020 constitutes misconduct and provides Metro with a sound, defensible and well-founded reason for dismissal. There was a valid reason for Mr Kabidi’s dismissal.
Was Mr Kabidi notified of the valid reason? – Section 387(b)
[82] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 181 and in explicit182 and plain and clear terms.183 In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)184a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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 170CG(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.” 185
[83] The Allegations were put to Mr Kabidi in the letter of 3 June 2020 and at the 9 June Meeting. The Dishonesty Allegations were put to him in the 18 June Letter and at the 23 June Meeting. Both matters are included in the Termination Letter. Mr Kabidi was notified of the reasons for his dismissal.
Was Mr Kabidi given an opportunity to respond to any valid reason related to his capacity or conduct? - Section 387(c)
[84] Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is made to terminate the employee’s employment. 186
[85] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 187 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.188
[86] In Wadey v YMCA Canberra 189 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[87] Mr Kabidi submits that it is “evident from the respondent’s witness statements”that Mr Hutton had already decided to terminate his employment immediately after the incident was reported and before he was given the opportunity to be heard. 190Mr Kabidi appears to rely upon the action taken by Mr Hutton to make Mr Kabidi “non-active”191 and to commence an investigation, rather than counsel or address Mr Kabidi’s conduct informally, as evidence of this.192 Further, Mr Kabidi submits that the investigation was “tainted and prejudiced and intent on dismissing [him] from the outset.”193 Mr Kabidi says that the language of all of the correspondence seems to be attempting to make “the issues seem very serious or extreme”.194
[88] I reject those submissions. As set out above, Mr Hutton’s evidence was that Mr Kabidi’s conduct on 1 June 2020 constituted a serious safety breach due to the serious potential for harm that arose from that conduct. 195 His further evidence was that such a breach must be investigated as the potential risk is “too high” and to not do so “would be remiss of our duty of care to our staff and to the members of the public”.196 Counselling or addressing a matter informally is reserved for “the lesser ends of the breaches”.197 Ms Maloney’s evidence was that she considered the breaches alleged against Mr Kabidi were of a serious nature198 and in those circumstances a formal disciplinary investigation was appropriate.199 Her evidence was that counselling would not have been sufficient to address Mr Kabidi’s behaviour given the risk which arose to himself and others.200 I find nothing unusual or prejudicial in Mr Hutton’s actions in rendering Mr Kabidi “non active” and commencing an investigation. I consider that the CCTV footage of the Werribee Incident did indeed raise serious concerns regarding Mr Kabidi’s conduct. In my view, the potential for serious harm to arise from Mr Kabidi entering the danger zone in breach of the PPE Procedure and the Track Access Procedure is both incontestable and manifestly apparent, notwithstanding Mr Kabidi’s subjective view of the risks and the absence of consequence on 1 June 2020. In those circumstances, I consider that suspending Mr Kabidi and commencing an investigation was the appropriate course and in accordance with the provisions of clause 4.22 of the Agreement.201 Further, I consider it entirely appropriate that Mr Kabidi be put on notice of the seriousness with which Metro viewed the incident.
[89] Mr Kabidi responded to the Allegations at the 9 June Meeting and the Dishonesty Allegations at the 23 June Meeting. He was offered an opportunity to view the CCTV footage of the Werribee Incident at the 9 June Meeting and an opportunity to view the CCTV footage of the Frankston Incident and the Pakenham Incident at the 23 June Meeting, although he declined to do so on both occasions. It is uncontested that at the 9 June Meeting, the CCTV footage of the Frankston Incident and the Pakenham Incident was not put to Mr Kabidi nor was he informed of the existence of that footage. Much was made of this by Mr Kabidi at the hearing. He submits that “it is difficult to understand” why Ms Maloney did not tell him of the footage and obtain an informed response at the 9 June Meeting. He submits that this is what was required of Metro to ensure fairness in a disciplinary hearing. 202 Those submissions are misconceived, and I reject them. Ms Maloney’s evidence was that she was informed immediately prior to the meeting on 9 June 2020 that further footage had been uncovered showing Mr Kabidi entering the live track in order to smoke a cigarette on additional occasions. Her evidence was that as allegations arising from this further CCTV footage had not been put to Mr Kabidi in writing, they could not be raised in the 9 June Meeting and would need to be raised separately. However, Mr Kabidi could and should be asked if he had previously smoked on track.203 Under cross examination Ms Maloney said that clause 4.22 of the Agreement requires all allegations to be put in writing and for an employee to be given three days to respond to those allegations.204 On that basis the further incidents could not be put to Mr Kabidi at the 9 June Meeting.205 Mr Hutton’s evidence was to a similar effect.206 I accept that evidence and consider it accurately reflects the relevant provisions of the Agreement. The full text of clause 4.22 of the Agreement is set out earlier at paragraph [17] of this decision. Clause 4.22.1(b) of the Agreement requires that if a complaint is to be investigated the employee must be notified in writing of a number of matters, including the allegations made and the details in support of those allegations. Clause 4.22.2 requires, inter alia, that the employee be provided with at least three working days from receipt of notification of the allegations before being required to attend a meeting to respond to the allegations. Accordingly, the Agreement required that allegations arising from the further footage first be put in writing to Mr Kabidi and that he be provided with a least three days before responding to those allegations. Neither of these had occurred on 9 June 2020. Accordingly, to have put the further incidents to Mr Kabidi at the 9 June Meeting and seek his response at that time would have been in contravention of the Agreement. It is uncontested that the Dishonesty Allegations arising from the Frankston Incident and the Pakenham Incident were included in the 18 June Letter and that Mr Kabidi responded to them at the 23 June Meeting. Further, I reject any suggestion that by asking Mr Kabidi whether he had smoked on track before, the allegations regarding the Frankston Incident and the Pakenham Incident were, in fact, put to him on another basis or in another form or the he was in any way “ambushed”. The questions asked of Mr Kabidi involved no allegation. They were open questions that he was required to answer honestly. He did not. Accordingly, I do not consider that Mr Kabidi was denied an opportunity to respond to the allegations against him as a result of the further incidents not being put to him at the 9 June Meeting.
[90] I have considered whether the inclusion of the Dishonesty Allegations in the 18 June Letter and Metro seeking Mr Kabidi’s response to those allegations at the same time as seeking that he show cause as to why his employment ought not be terminated denied Mr Kabidi an opportunity to respond to the allegations against him. Whilst I do not consider this is the preferred approach, I do not consider any unfairness arose from this in the present circumstances. Mr Kabidi’s evidence was that he understood it was alleged that he had been dishonest and that the Frankston Incident and the Pakenham Incident were now being considered. He also agreed under cross examination that he understood that he was being asked to tell Metro why he should remain employed. Further, this is also evidenced by his response of 22 June 2020 to the 18 June Letter, in which he expresses his “deepest regrets and sincerest apologies” for his breach of safety procedures.
[91] In light of all of the above, I am satisfied that Mr Kabidi was given an opportunity to respond to the Allegations and the Dishonesty Allegations and that opportunity was reasonable.
Did Metro unreasonably refuse to allow Mr Kabidi to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
[92] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
[93] It is not contended that Mr Kabidi was denied the presence of a support person at the 23 June Meeting. Indeed, Mr Francis attended the 23 June Meeting with Mr Kabidi as his support person.
Was Mr Kabidi warned about unsatisfactory performance before the dismissal - Section 387(e)
[94] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
[95] The reasons for dismissal that I have found to constitute a valid reason are matters of conduct not capacity. Mr Kabidi’s dismissal therefore did not relate to unsatisfactory performance and he was not required to be warned.
To what degree would the size of Metro’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f)
[96] Section 387(f) requires the Commission to take into account the degree to which the size of the employer would likely impact on the procedures followed in effecting the dismissal.
[97] Metro is a large, well-resourced organisation. At the time of Mr Kabidi’s dismissal, Metro employed over 6000 employees. 207 The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in Metro’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(g)
[98] Section 387(g) requires the Commission to take into account the degree to which the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[99] There was no absence of dedicated human resource management specialist or expertise in Metro’s enterprise. Ms Maloney was involved in almost all stages of the disciplinary process. Accordingly, section 387(g) has no application.
What other matters are relevant? - Section 387(h)
[100] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
[101] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation 208 the Full Bench stated that:
“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable’.” 209
[102] The Full Bench continued:
“Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. (This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct).
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. (This includes matters such as the length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents).” 210
[103] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, 211 however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee.212 Further, the failure of an employee to comply with the policies and procedures of an employer (which may found a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.213
Proportionality
[104] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). Clearly a dismissal may be harsh because it is disproportionate to the gravity of the misconduct on which the employer acted.
[105] Mr Kabidi was summarily dismissed. He submits that dismissal was disproportionate to the conduct engaged in and further, that Metro had other options available to it under the Agreement. 214 I have found that Mr Kabidi wilfully and deliberately breached the PPE Procedure and the Track Access Procedure. That conduct constitutes misconduct and, in my view, constitutes serious misconduct. I consider it alone justifies the termination of Mr Kabidi’s employment. Further, Mr Kabidi’s dishonesty in the meeting on 9 June 2020 also constitutes, at the least, misconduct. In combination with Mr Kabidi’s conduct in breaching the PPE Procedure and the Track Access Procedure I consider that summary dismissal was proportionate to Mr Kabidi’s misconduct.
Other matters
[106] I have taken into consideration that at no time has Mr Kabidi exhibited any insight or understanding of either the seriousness of his conduct or, indeed, the nature of his misconduct. He has continued to assert both at the hearing and in his submissions that his conduct was minor, amounts to no more than carelessness in not putting on his vest, that Metro is trying to make the matter appear to be serious and has steadfastly held to the view that his conduct involved no risk based on his own subjective assessment of the circumstances. Further, at the hearing he said that “I shouldn’t be smoking and I acknowledge the facts” 215, “I feel bad about if I lose my job because of a bad habit of cigarettes”.216 and “the only reason I’m sitting here now is because I have a bad habit of smoking”217. Mr Kabidi has simply failed to grasp that commitment and adherence to safety standards is an essential obligation of employees, especially in inherently dangerous workplaces, and that failure to do so is a serious matter.
[107] For completeness, I also address Mr Kabidi’s submission that he has entered the pit without authorisation to help a passenger who was attempting suicide and was not disciplined for this; rather he was commended. 218 That this occurred is not contested by Metro. I consider it entirely apparent that these circumstances are in no way analogous or relevant to Mr Kabidi’s conduct on 1 June 2020. Further, that Mr Kabidi considers them so, in my view, simply reinforces his failure to understand his obligations.
[108] Finally, Mr Kabidi had previously provided Metro with a written commitment to comply with its policies and procedures in the form of the Letter of Commitment. In addition to breaching the PPE Procedure and the Track Access Procedure on 1 June 2020, I have taken into consideration that Mr Kabidi also breached the commitment given in the Letter of Commitment.
Mr Kabidi’s personal circumstances
[109] I have had regard to Mr Kabidi’s age, length of service and future employment prospects. I do not find that these factors weigh so heavily as to render Mr Kabidi’s dismissal harsh, unjust or unreasonable. Indeed, the balance of the matters considered under section 387(h) weighs against such a conclusion.
Conclusion
[110] I have made findings in relation to each matter specified in section 387 as relevant.
[111] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 219
[112] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Kabidi was not harsh, unjust or unreasonable.
[113] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Kabidi was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
T Kaine on behalf of the Applicant
J Gillam for the Respondent
Hearing details:
2020.
Melbourne (via Microsoft Teams):
5 and 6 October.
Final written submissions:
Applicant, 22 October 2020
Respondent, 29 October 2020
Printed by authority of the Commonwealth Government Printer
<PR725694>
1 Exhibit R1, Annexure NM-3
2 Exhibit R1, Annexure NM-4
3 Applicant’s Written Closing Submissions at [16]
4 Exhibit A1, Document 4; Exhibit R1, Annexure NM-7
5 Exhibit R2, Annexure DH-2
6 Exhibit R2, Annexure DH-3
7 Procedure L1-SQE-PRO-054 Planning worksite protection in the rail corridor, page 6
8 Ibid, page 9-10
9 Exhibit A1 at [3], [4], [8]
10 Transcript PN139, PN273
11 Transcript PN915-917, PN925
12 Exhibit A1 at [1]
13 Ibid at [2]
14 Ibid at [3]
15 Exhibit R4
16 Ibid
17 Transcript PN435, PN436, PN455, PN460
18 Exhibit R2 at [3]
19 Exhibit A1 at [4]; Exhibit R2 at [7]
20 Exhibit R2 at [7]; Transcript PN1749, PN1756
21 Exhibit R3 at [5]
22 Exhibit R3at [9]; Exhibit R2 at [10]; Transcript PN1838
23 Exhibit R1 at [3]
24 Ibid at [4]
25 Ibid and Annexure NM-1
26 Exhibit R2 at [11]
27 Transcript PN2250
28 Transcript PN2249, PN2251
29 Exhibit R3 at [11]
30 Exhibit R2 at [12]; Transcript PN 1847, PN1849, PN1872
31 Exhibit R2 at [12] and [13]
32 Ibid at [12]
33 Exhibit R1 at [5]; Exhibit R3 at [12]; Exhibit R2 at [13]
34 Ibid
35 Exhibit R1 at [5]
36 Exhibit A1 at [8]; Exhibit R1 at [7]; Exhibit R3 at [13], Exhibit R2 at [15]
37 Exhibit A1 at [8]
38 Transcript PN357
39 Exhibit A1 at [9]
40 Ibid at [10]
41 Ibid at [11]
42 Ibid at [12]
43 Ibid at [13]
44 Transcript PN93, PN174-175
45 Exhibit A1 at [13]
46 Transcript PN179, PN185-187
47 Transcript PN188-189
48 Transcript PN772-773
49 Transcript PN750
50 Transcript PN799
51 Transcript PN478
52 Transcript PN479, PN530
53 Transcript PN481
54 Transcript PN500-502
55 Transcript PN504
56 Transcript PN565
57 Exhibit R1 at [7]; Exhibit R3 at [13]; Exhibit R2 at [15]
58 Exhibit R1 at [18], see also Exhibit R2 at [17]; Exhibit R3 at [14]
59 Exhibit R1 at [9]
60 Ibid
61 Ibid at [10]
62 Exhibit R1 at [11]; Transcript PN1200
63 Exhibit R1 at [12]; Transcript PN1175
64 Transcript PN1159
65 Transcript PN1161
66 Exhibit R2 at [17-21]; Exhibit R3 at [14-17]
67 Transcript PN2160, PN2170-2175, PN2267-2284
68 Transcript PN750
69 Applicant’s Written Closing Submissions at [66]
70 Ibid at [64]
71 Transcript PN2295
72 Transcript PN2297
73 Transcript PN2288
74 Transcript PN2289
75 Transcript PN2291
76 Transcript PN2411-2414
77 Exhibit R1 at [14]; Exhibit R3 at [18]; Exhibit R2 at [25]
78 Exhibit R1 at [14]; Exhibit R2 at [26]
79 Exhibit R1, Annexure NM-5
80 Ibid
81 Exhibit A1 at [14]; Transcript PN215
82 Exhibit A1 at [15]
83 Transcript PN232
84 Transcript PN207, PN209
85 Transcript PN694, PN697
86 Transcript PN716, PN718
87 Exhibit A1 at [17]; Exhibit R1 at [16] and Annexure NM-6
88 Exhibit R1 at [17]
89 Ibid at [18]
90 Ibid at [19]
91 Ibid at [20]
92 Ibid at [22]
93 Ibid at [23]
94 Ibid at [24]
95 Exhibit R2 at [29-40]; Exhibit R3 at [19-22]
96 Exhibit A1 at [19]
97 Ibid 1 at [20]
98 Ibid at [21]
99 Transcript PN209
100 Transcript PN205
101 Transcript PN232
102 Transcript PN292
103 Transcript PN289
104 Transcript PN712-715
105 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69]
106 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
107 Ibid
108 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
109 Edwards v Justice Giudice [1999] FCA 1836 at [7]
110 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000 at [23]-[24]
111 Briginshaw v Briginshaw (1938) 60 CLR 336
112 Ibid at 363
113 Ibidper Dixon J at 362
114 Ibid per Rich J at 350
115 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216
116 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450
117 [2003] NSWCA 388
118 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd
(2013) 306 ALR 125 at [35-37]
119 NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]
120 Respondent’s Written Closing Submissions at [4]
121 Respondent’s Submissions at [22-25]
122 Ibid at [27]
123 Ibid at [36]
124 Ibid at [63]
125 Ibid at [51]
126 Ibid at [51], [56], [64], [67]
127 Applicant’s Submissions at [25]; Applicant’s Written Closing Submissions at [19]
128 Applicant’s Submissions at [25]
129 Ibid at [28]
130 Applicant’s Written Closing Submissions at [22]
131 Ibid at [70]
132 Ibid at [24]
133 Ibid at [27]
134 Transcript PN271, PN485
135 Transcript PN565, PN903
136 Transcript PN1785-1790
137 Transcript PN1943-1947
138 Transcript PN1653
139 Transcript PN1483, PN1652
140 Transcript PN1483; PN1734-1735, PN1781
141 Transcript PN1483
142 Transcript PN2525
143 Transcript PN564
144 BHP Coal Pty Ltd v Schmidt[2016] FWCFB 1540 at [8]
145 Transcript PN1742, PN1779-1781
146 Transcript PN1781
147 Transcript PN1471, PN1478, PN1480, PN1482
148 Transcript PN1653
149 Exhibit R2, Annexure DH-2
150 Transcript PN1787
151 Transcript PN1785
152 Transcript PN2522
153 [2020] FWCFB 3439 at [32-34], See also Bluescope Steel Limited v Habak[2019] FWCFB 5702
154 Transcript PN1471, PN1478, PN1480, PN1482
155 Transcript PN1471-1472, PN1523, PN1531, PN1581
156 Transcript PN1742, PN1779, PN1780, PN1781, PN1783
157 Applicant’s Written Closing Submissions at [44]
158 Ibid at [47], [51]
159 Ibid at [50]
160 Ibid at [48]
161 Ibid at [49]
162 Ibid at [74]
163 Transcript PN166-167
164 Applicant’s Written Closing Submissions at [45]
165 Transcript PN883, PN836, PN838-839
166 Transcript PN651, 839
167 Transcript PN2238
168 Transcript PN2231
169 Transcript PN2537
170 Transcript PN2537
171 Transcript PN2539
172 Transcript PN2541
173 Transcript PN2541
174 Transcript PN2238-2239
175 Transcript PN2238-2239, PN2542
176 Transcript PN2238-2239
177 Transcript PN1319-1322
178 Transcript PN1322
179 Transcript PN1320
180 Exhibit R2, Annexure DH-3
181 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
182 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
183 Ibid
184 (2000) 98 IR 137
185 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
186 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75]
187 RMIT v Asher (2010) 194 IR 1, 14-15
188 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
189 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
190 Applicant’s Written Closing Submissions at [59]
191 Ibid at [60]
192 Ibid at [60]
193 Ibid at [62]
194 Ibid at [63]
195 Transcript PN1742, PN1779, PN1780, PN1781, PN1783
196 Transcript PN1841
197 Transcript PN1843
198 Transcript PN1091, PN1492
199 Transcript PN1090, PN1095-1096, PN1139
200 Transcript PN1139, PN1493
201 See clause 4.22.1 and 4.22.3 of the Agreement
202 Applicant’s Written Closing Submissions at [53]
203 Exhibit R1 at [5]
204 Transcript PN1148
205 Transcript PN1153-1154
206 Transcript PN1905, PN1907
207 Form F3 Employer’s Response at q.1.7
208 (2013) 238 IR 1
209 Ibid at [41]
210 Ibid at [42]
211 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
212 See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
213 B v Australian Postal Corporation (2013) 238 IR 1 at [48]
214 Applicant’s Written Closing Submissions at [28-29]
215 Transcript PN100
216 Transcript PN144
217 Transcript PN244
218 Applicant’s Written Closing Submissions at [79]
219 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6-7]
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