Peter Bent v Sydney Trains
[2020] FWC 5867
•20 NOVEMBER 2020
| [2020] FWC 5867 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Peter Bent
v
Sydney Trains
(U2020/5038)
DEPUTY PRESIDENT SAMS | SYDNEY, 20 NOVEMBER 2020 |
Termination of employment - application for an unfair dismissal remedy - reinstatement sought - long serving employee of Sydney Trains - Duty Manager at Granville Station - allegations of verbal and/or racial abuse towards a female colleague - alleged breaches of employer’s policies and procedures - external investigation finds allegations substantiated - allegations relate to an incident between two employees during shift handover - both employees accept their conduct was unprofessional - applicant denies all allegations and claims other employee the aggressor - no witnesses to incident - opposing accounts of incident - witness credit - use of foul and unacceptable language in Hindi and English - alleged threat of physical harm - earlier incidents tend to establish that the conduct was not ‘one off’ or out of character - applicant's evidence not accepted - allegations against the applicant established on balance of probabilities - valid reason for dismissal - mitigating factors going to harshness considered, but do not outweigh seriousness of allegations – no contrition or remorse – dismissal not harsh, unjust or unreasonable – unnecessary to consider remedies – application dismissed.
BACKGROUND
[1] Mr Peter Bent was employed by Sydney Trains (and its predecessor entities) from 1996 until 27 March 2020, when he was dismissed for misconduct following an external investigation (the ‘Investigation’) in which it was found he had verbally and/or racially abused a female colleague, Ms Jaskirpal Singh, on 12 September 2019 at around 5:50am, during a change of shift. At the time of his dismissal, Mr Bent had been employed as a full time Duty Manager (‘DM’) at Granville Station since 2005. Ms Singh has held the same role at Granville Station since 2011.
[2] On 17 April 2020, Mr Bent’s Union, the Australian Rail, Tram and Bus Industry Union (the ‘RTBU’ or the ‘Union’), filed an application in the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which Mr Bent (hereafter the ‘applicant’) seeks reinstatement and associated orders as remedies from his unfair dismissal by Sydney Trains (hereafter ‘Sydney Trains’ or the ‘respondent’).
[3] The application was subject to a conciliation before a Commission Conciliator on 26 May 2020. The matter was unable to be resolved and remitted to me for hearing. In accordance with my usual practice, I issued directions for a hearing and convened a further conciliation on 17 June 2020. The application remained unresolved and I confirmed my earlier directions issued in preparation for a hearing on 29 July and 24 August 2020. Given the matter involved an assessment of witness credit as to the events on 12 September 2019, I determined that an ‘in person’ hearing should be held, notwithstanding the limitations on ‘in person’ hearings due to the COVID-19 pandemic. Appropriate health and safety measures, authorised by NSW Health for NSW Courts, were observed in this hearing. I thank the parties for their cooperation in this respect.
[4] At the hearing, Mr G Morgan-Cocks, the Union’s Industrial Officer, represented the applicant and the Union and Mr S Meehan of Counsel, instructed by Ms S Moten, Partner, and Ms A Redfern, Solicitor, Lander & Rodgers, appeared for the respondent, with permission granted for Sydney Trains to be represented by a lawyer, pursuant to s 596 of the Act; noting Ms Morgan-Cocks did not oppose Mr Meehan’s appearance.
THE EVIDENCE
[5] The following persons provided statement and/or oral evidence in the proceedings:
• Ms Jaskirpal Singh – Station Duty Manager, Granville Station;
• Mr Jaswinder Singh Gakhal – Incident Rail Commander, Blacktown Signalling Complx;
• Mr Christopher Walsh – Deputy Executive Director, Customer Delivery (Region 2);
• the applicant;
• Mr Tarun Patel – Duty Manager, Granville Station;
• Mr Shailesh Mehta – Customer Service Attendant, Granville Station;
• Mr Rohit Chintala – Customer Service Attendant, Granville Station;
• Mr Manjinder Hothi – Customer Service Attendant, Epping Station;
• Ms Jigna Patel – Cleaning Attendant, Auburn Station;
• Mr Jack Aydostan – Customer Service Attendant, Granville Station; and
• Ms Charu Anand – Train Guard, Central Station.
[6] The applicant, Ms Singh and Mr Jaswinder Singh Gakhal (hereafter ‘Mr Gakhal’) all provided statements during the external investigation of the applicant’s conduct. These were tendered in evidence and relied on by the witnesses. The seven last named persons above were not witnesses to the events of 12 September 2019. They all provided character references for the applicant, which Mr Meehan submitted should be given little weight.
[7] At this juncture, I set out below the decision of Sydney Trains to terminate the applicant’s employment on 14 February 2020. This decision was confirmed on appeal to Transport for NSW (‘TfNSW’), and the applicant was advised of this outcome on 23 March 2020. I reproduce the earlier decision of 14 February 2020 and the Review decision as follows:
‘Dear Mr Bent,
Your written response to the proposed preliminary disciplinary outcome from the findings of the Disciplinary Investigation that you breached the Transport Code of Conduct (Our Code of Conduct) has now been considered.
Sydney Trains is satisfied that you engaged in the conduct as outlined in the allegations. By engaging in this conduct, you breached Our Code of Conduct, in particular sections:
• Section 3 - Staff Responsibilities;
• Section 4 - Manager responsibilities;
• Section 9 - Workplace health and safety; and
• Section 12 - Bullying, harassment, discrimination and inappropriate workplace conduct
By engaging in this conduct, you also breached the Transport Prevention and Management of Bullying and Harassment Policy, specifically:
• Section 2 Mandatory requirements
• Section 2.2 What is harassment
• Section 3 Accountabilities
By engaging in this conduct, you also breached the Transport Discrimination Free Workplace Policy, specifically:
• Section 3 Accountabilities
The conduct that has been substantiated amounts to a significant and serious breach. Sydney Trains has considered your responses during the investigation prior to making a final decision.
Having considered the above, the final view of the appropriate disciplinary outcome for you is as follows:
Dismissal
Request for Review
Under the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW, permanent Sydney Trains employees may access a review process on grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable.
Any request for review is to be made to the Secretariat, Transport for NSW Disciplinary Panel within ten (10) working days of receipt of this letter. The form for requesting a review can be found on the Sydney Trains intranet under MyHR/HR Forms/Discipline. Once completed, the form is to be sent to [email address provided].
If a request for review has not been received by the end of the ten day period, the above penalty will be implemented and your employment will be terminated effective from this date. You will be paid in lieu of your notice period in accordance with clause 19.2 of the Sydney Trains Enterprise Agreement 2018.
If a request for review is submitted and received by the end of the ten day period, the above termination will not take effect until the review has been completed. If the outcome of the review confirms that the decision of dismissal is upheld, your employment will be terminated effective from the date of the appeal decision response letter.
A copy of this decision will be placed in your personnel file. Please note that your personnel records will be marked that you are not suitable for re-hire.
Please acknowledge receipt of this letter by completing the acknowledgement section below.
I wish to advise that the Employee Assistance Program (EAP) provides a free confidential counselling support service for employees and their immediate family members. EAP can be contacted on [phone number provided].’
The Review Decision
‘Dear Mr Bent
Request for Review of Disciplinary Decision
I refer to the Notice of Disciplinary Penalty Review submitted by the RTBU on your behalf on 07 March 2020.
At its meeting on 20 March 2020, the Disciplinary Panel gave consideration to your submission in accordance with the Sydney Trains Interim Discipline Penalty Review Process Guidelines.
Taking into account the submission accompanying the Notice of Disciplinary Penalty Review, the Disciplinary Panel decided:
a. the disciplinary decision was not harsh, unfair or unreasonable; and
b. to affirm the original Sydney Trains disciplinary decision of Dismissal.
A copy of this letter has been provided to Sydney Trains.’
[8] The specific allegations against the applicant were set out in a show cause letter of 4 November 2019, as follows:
‘Dear Mr Bent
Request to Respond in Writing to an Allegation
The Transport for NSW Workplace Conduct and Investigations Unit (WCIU) has been referred a complaint regarding your alleged behaviour. Sydney Trains have reason to suspect that you have engaged in misconduct and have requested that the WCIU undertake a disciplinary investigation.
I refer to a meeting between yourself and Mr Graeme Ellis, Customer Area Manager on 17 September 2019, during which he advised you that WCIU would be undertaking an investigation into the allegations that you may have breached the Transport Code of Conduct (Our Code of Conduct), Transport Prevention and Management of Bullying and Harassment Policy and/or Transport Discrimination Free Workplace Policy.
The WCIU has engaged an external investigation company, Kannelyn Forensic Consultants (Kannelyn), to undertake the investigation. Mr Kelvin Kenney is conducting the investigation on Kannelyn’s behalf.
The purpose of this letter is to advise you of the allegation made against you, and to provide you with an opportunity to respond to it in writing. To ensure that this matter is dealt with in an open and transparent manner, I engaged an external translator accredited by the National Accreditation Authority for Translators and Interpreters Ltd to translate the alleged comments made by you towards Ms Singh. I have included the literal meaning of your alleged comments as well as the Australian equivalent of what was allegedly said.
Allegation 1
It is alleged that on 12 August 2019, whilst on duty at Granville Station, you verbally and/or racially abused Ms Jaskirpal Singh, Station Duty Manager.
The particulars of the allegation are as follows:
1. On 12 August 2019, you walked around the office at Granville Station shouting at and using abusive words towards Ms Singh.
2. During the incident with Ms Singh, you said words to the following effect, in English and Hindi which included, but are not limited to:
a) “You and your Punjabi community is all fucked. You are a disgrace and all Punjabi’s are bastards. You should go and lick John SINGH’s arse. You and John Singh are same. Ja ke gand mar uski”;
• Ja ke gand mar uski
• Literal meaning of words – go anal fuck [hurt] him/her
• Australian equivalent – Fuck [punish] him/her
b) When Ms Singh told you that she was going to call Graeme Ellis, you said “What you are going to do you fucking bitch. You bhain chood. You maa chood lok. I’m not scared of anyone. I don’t care what happens”;
• You bhain chood. You maa chood lok
• Literal meaning of words – You sister fucker. You mother fuckers
• Australian equivalent – You bastard. You bastards
c) When Ms Singh said that you were abusing her, you said “Yes I am abusing you, you bhain choo. Fuck off. You want to call the fucking manager? I will call fucking Graeme and ask him to come and sort this out”;
• Bhain choo
• Literal meaning of words – Sister fucker
• Australian equivalent – Bastard
d) Ms Singh became upset and was crying. You said “You fucking woman are very good at crying”;
e) “I don’t care about his job. I’m not scared. If something happens to my job, I will smoke you and your family. Agar kisi ne meri Gand Mari to main unki maa chodunga, bhain choodon ke”; and
• Agar kisi ne meri Gand Mari to main unki maa chodunga, bhain choodon ke
• Literal meaning of words – If someone anal fucks [hurts] me, I will fuck the mother of that sister fucker
• Australian equivalent – If someone messes with me, I will fuck that bastard
f) When Ms Singh asked you to leave, you said “Who the fuck are you to tell me to leave”.
3. As a result of your comments and actions towards Ms Singh, she was shaken and felt terrified, trapped by you and in fear for the safety of her family.
This conduct, if proven, may represent a breach of the following:
The Transport Code of Conduct (Our Code of Conduct), specifically:
• Section 3 – Staff responsibilities;
• Section 4 – Manager responsibilities;
• Section 9 – Workplace health and safety; and
• Section 12 – Bullying, harassment, discrimination and inappropriate workplace conduct.
This conduct, if proven, may also represent a breach of the following:
The Transport Prevention and Management of Bullying and Harassment Policy
• Section 2 – Mandatory requirements;
• Section 2.1 – What is bullying;
• Section 2.2 – What is Harassment; and
• Section 3 - Accountabilities
This conduct, if proven, may also represent a breach of the following:
Transport Discrimination Free Workplace Policy, specifically:
• Section 3 – Accountabilities
I have enclosed copies of these policy documents for your reference. I have also attached a copy of the Sydney Trains Discipline Procedure.
The WCIU are providing you with an opportunity to respond to the allegations in writing. You are requested to provide your written response within Fourteen (14) calendar days from the date of this letter.
Please email your written response to: Mr Rodney O’Donahue, Investigation Services Coordinator
Email: [email address provided]
Your written response may include your version of events, provide an explanation and/or outline any mitigating circumstances with regard to the matter under investigation. If you do not respond in writing to the alleged breach by the due date, the investigation will continue in absence of any response made by you.
As part of the investigation process you may be interviewed. Should an interview be warranted, you will be advised in writing. At the interview, you may provide your version of events and any explanation or mitigating circumstances that may exist.
Possible Outcomes
After conducting any relevant interviews and considering all available information, an Investigation Report will be prepared. If a breach, or breaches, of Our Code of Conduct or Sydney Trains Policy and/or Procedure has occurred, the Investigation Report may be sent to the Disciplinary Review Panel (DRP).
The DRP may make a preliminary recommendation regarding any appropriate disciplinary action in response to the breaches. Disciplinary action may include one or more of the following:
• caution or reprimand
• fine of an amount not exceeding $100
• reduction in position, rank or grade and pay
• suspension from duty without pay
• dismissal (with or without notice)
Independent of any disciplinary action, Sydney Trains may take appropriate management action including transfer, secondment, training, removal from particular duties (including acting in higher grades or secondments), counseling (sic), mentoring or other measures in the interests of Sydney Trains.
You will be provided with an opportunity to make further representations prior to any disciplinary action being taken.
I have enclosed copies of the following documents for your information:
• Transport Code of Conduct (Our Code of Conduct);
• Transport Prevention and Management of Bullying and Harassment Policy;
• Transport Discrimination Free Workplace Policy.
• Sydney Trains Discipline Procedure
Confidentiality
Given the sensitive nature of the allegations, and to protect you and others who may become involved, you must not discuss the investigation with anyone other than your nominated support person(s), representative, personal advisors or immediate family members.
You are required to keep the details of the matters raised in this correspondence, and your response, confidential. This requirement also applies to your personal advisors and immediate family members.
Any Sydney Trains staff member found to have breached confidentiality requirements may have disciplinary action taken against them. If you believe confidentiality has been breached, please advise me immediately.
Support Person
You may discuss this matter with a support person. A support person may be a union or legal representative. It is not appropriate to have a support person who has been involved in the matter, or whose availability may lead to a delay in the investigation.
Victimisation
Victimising or retaliating against a person who has assisted with, or is involved in, an investigation will not be tolerated. Any finding of victimisation or retaliation against anyone who is involved in the investigation may result in disciplinary action being taken.
All participants of the investigation process have been advised of this. You should immediately contact me if you experience any difficulties in this regard.
Support
TfNSW understand that being involved in an investigation can be a difficult experience. If you or your family need assistance at any time during the investigation, you are encouraged to contact the Employee Assistance Program (EAP) on [phone number provided]. The EAP provides confidential and professional assistance to employees and their family members.
If you have any questions in relation to this matter, please contact me on [phone number provided], or via email.’
Annexed to this decision are the relevant extracts from Sydney Trains’ Policies:
The Investigation
[9] Following the receipt of Ms Singh’s complaint on 13 September 2019, it was referred to TfNSW’s Workplace Conduct Unit (‘WCIU’). The WCIU subsequently engaged an external provider, Kannelyn Forensic Consultants on 4 October 2019, to conduct a disciplinary investigation into the applicant’s conduct. In a report dated 16 December 2019, the Investigation found, on the balance of probabilities, that Allegation 1 and the particulars 1, 2 and 3 had been proven. The Report’s conclusion was:
‘While the investigation has found that Mr Bent verbally and/or racially abused Ms Singh, the investigation also obtained evidence that Ms Singh may have acted inappropriately towards Mr Bent on a previous occasion. In other words, while the investigation found that the Allegation was substantiated, the investigation also found that there could have been some mitigating factors.’
The respondent’s evidence
Ms Singh’s statement
[10] Ms Singh was born in the Punjab region of North India. In 1989, she moved to Australia with her husband, but maintains close ties to her relatives in India and visits them regularly. She speaks Punjabi, and can also speak Hindi.
[11] Ms Singh referred to two previous incidents involving the applicant. In 2012, when she had greeted a colleague in Punjabi, the applicant was present and had yelled at her angrily ‘This is an English-speaking place. You’re in Granville, don’t bring your Punjabi here’. Ms Singh said she was shocked, but did not complain, as she had only just started working at Granville Station. In another incident in 2016, Ms Singh was told of an angry exchange between the applicant and a signaller. The applicant was suspended for two weeks and he had told her, while laughing, ‘I am getting paid to take a two-week holiday’.
[12] Ms Singh referred to an incident the day before 12 September 2019, in which there was an exchange of messages about a post (the ‘two bird’ post) sent by the applicant to a WhatsApp group of employees who were in a work lottery syndicate. Ms Singh believed the message was inappropriate and might offend others, particularly women.
[13] Ms Singh’s recollection of the more serious incident on 12 September 2019 with Mr Bent is recorded in an email of complaint to Mr Graeme Ellis, her Manager and the Customer Area Manager, Mr Dimitri Hondros. As this complaint is closest in time to the incident, I set it out in full below:
‘Hi Graeme
I [would] like to report an incident happened yesterday in SDM office. I came to start my shift 0600 as SDM P Bent was finishing his shift. We had disagreement on a topic. I tried to discuss. It was a joke from previous day. Which shows something like woman (sic) talk too much, that was my understanding of it. Not [a] big deal.
On 12/9/2019 around 0600 am at the beginning of my shift I tried to talk to Peter not to send these things. If any conversation or discussion is not exactly Peters way he gets very upset and abusive on very very minor thing[s]. He got very upset and started saying that I am very narrow minded. I said [it had] nothing to do with [a] narrow mind.
He said you and your Punjabi community is all fucked. You are disgrace and all Punjabi’s are bastards. He told me to go and lick John Singh’s ars (sic). You and John Singh are same. I said I have nothing do with John Singh. He said (ja ke gand mar uski). Peter was using the mix of Hindi and English language. I told him not to insult me and my community. I told him I am going to call Graeme. He said what are you going to do you fuckin bitch. (you bhain chood). You (maa chood lok). He said he is not scared from anyone and doesn’t care.
I said you are abusing Me Peter? He said yes I am abusing you, you (bhain chood fuck off) you want to call the fuckin manager ... I will call fucking Graeme and ask him to come and sort this out. I was crying at this stage. He said you fuckin woman are very good at crying. I told him he is very abusive man. He started screaming even louder. I am abusive man. Peter was non-stop repeating all the abusive words he could use.
Peter was standing in the middle of office and screaming call the fuckin manager. He repeated this several times. In between he said he will call the manager. I was terrified, I was sitting in the chair and he was walking around next to the door. Abusive words were coming out non-stop and peter (sic) was walking here and there in the office. He was screaming at the top of his voice. I was shaken by his behaviour and language. Terrified and felt kind of trapped. I was in shock, wasn’t thinking clear.
While he was abusing me I started repeating the same what he was calling me. He said bhain chood, I said you bhain chood. I repeated few abusive words after him. One time he was saying I don’t care about this job, I am not scared. Then he said if something happened to my job I will smoke you and family. He said (agar kisi ne meri Gand Mari to main unki maa chodunga, bhain choodon ke).
I told him to go. I said Peter leave. He said who the fuck are you to tell me to leave. He was screaming so loud, it seemed like his lungs are going to pop out.
When he mentioned smoking and fucking everyone, I stood up and told him to stop. Told him enough stop. Peter has a habit of abusing people. Happened few times before but not this extreme. I never reported. None of the others ever reported. If it’s a mistake once or twice and person admits that it’s a mistake, I do not believe that they don’t deserve another chance. This is getting bad to worse. Something needs to be done. Peter needs to correct his behaviour.
It all happened on R U OK DAY.
With Regards
Jas Singh’
[14] Returning to her statement, Ms Singh described her understanding of the literal and the equivalent Australian meaning of some of the comments she claimed the applicant said to her during their clash on 12 September 2019:
‘1. Ja ke gand mar uski
Literal meaning of words — go anal fuck [hurt] him/her
Australian equivalent — Fuck [punish] him/her
2. You bhain chood. You maa chood lok
Literal meaning of words — You sister fucker. You mother fuckers
Australian equivalent — You bastard. You bastards
3. bhain chood
Literal meaning of words — Sister fucker
Australian equivalent — Bastard
4. Agar kisi ne men i Gand Mari to main unki maa chodunga, bhain choodon ke
Literal meaning of words — If someone anal fucks [hurts] me, I will fuck the mother of that sister fucker
Australian equivalent — If someone messes with me, I will fuck that bastard’
It was Ms Singh’s evidence that in her community, the above comments would be considered ‘very serious and very unacceptable’ and insulting a person’s mother is the worst possible insult.
[15] Ms Singh said that she initially did not want to make a complaint about the incident, and although she was still crying and very upset the next day, she hoped the applicant might apologise. When he did not apologise, she decided to lodge a complaint, in order to stop him from engaging in similar further conduct. However, she claimed she was fearful if the applicant was disciplined, that he might target her, particularly as he lived nearby to her and her family.
[16] Ms Singh described the impact of the incident on her. On 13 September 2019, she spoke to Mr Ellis and asked for some time off, as she was very upset and emotional. She accessed the respondent’s EAP. Ms Singh was off work from 14 September to 30 September 2019, with medical certificates disclosing her unfitness for work. She also filed a workers’ compensation claim for work related stress and anxiety. She described her symptoms as follows:
(a) ‘I had trouble sleeping, and when I got to sleep, I would wake up regularly sweating;
(b) I had a lot of anxiety and fear whenever I thought about the incident. I was fearful that Mr Bent would hurt me or my family. I know that Mr Bent lives in the same area as me, so whenever I saw someone that looked like him, I would immediately feel panic and fear;
(c) I started doubting myself and lost confidence in myself;
(d) I sometimes did not have an appetite and wouldn't eat anything, or if I did eat, I started eating very unhealthy foods because I stopped caring about myself. Before the incident I was in a very good routine and was eating healthy foods regularly;
(e) I stopped exercising regularly. Before the incident I was making a lot of effort to do this regularly.’
[17] Ms Singh commenced a graduated Return to Work (‘RTW’) from 1 October 2019 and was back on full duties on 22 November 2019. Copies of WorkCover NSW Certificates of Capacity were put into evidence. Ms Singh added that she had also accessed counsellor services through the EAP and relied on her son and friends for ongoing support. She said that every time she thinks about the applicant, she gets very upset.
Mr Jaswinder Gakhal
[18] Mr Gakhal has been employed as an Incident Rail Commander, stationed at Blacktown Signalling Complex since November 2018. Mr Gakhal said that pre-COVID-19, he was regularly rostered at Granville Station to assist with peak hour supervision between 6am-10am. He said that prior to 12 September 2020, he had few, and only passing comments with the applicant and Ms Singh about work matters. He has no personal relationship with either of them and all his interactions were strictly professional.
[19] Mr Gakhal added to his statement given in the Investigation, by stating that only Ms Singh and the applicant were in the Station Duty Manager’s Office when he had walked in on 12 September 2019. Before entering, he heard the applicant using a loud voice and he appeared very frustrated and angry. He did hear him say ‘bhain chood’ (sister fucker). Where he had said in his statement that these swear words were not aimed at Jaz (Ms Singh), he meant he did not hear her name mentioned. However, as Ms Singh was the only other person in the room, the swearing must have been directed towards her.
[20] Mr Gakhal explained that when he had said that both of them were not behaving correctly, he was referring to the applicant’s loud and raised voice, swearing and speaking inappropriately. In respect to Ms Singh, she was crying and not managing her behaviour. He was shocked at their behaviour and believed that something serious had occurred.
[21] Mr Gakhal said that swearing in the workplace, regardless of gender or culture, was ‘highly inappropriate’. Mr Gakhal added that he thought the applicant had been crying during a phone call on the morning of 12 September 2019 because his voice was heavy and his breathing not normal. He had told him it was important to act professionally in the workplace and not use foul language.
Mr Christopher Walsh
[22] Mr Walsh has worked in various management roles for Sydney Trains, and its predecessor entities, since May 2013 and has been in his current role of Customer Area Manager from around January 2017. Mr Walsh referred to the following policies of the respondent relevant to this matter and relied on by the employer to dismiss the applicant:
(a) Transport Code of Conduct
(b) Transport Prevention and Management of Bullying and Harassment Policy; and
(c) Transport Discrimination Free Workplace Policy.
Mr Walsh also highlighted the applicant’s attendance at training on these policies.
[23] Mr Walsh described the role of the Duty Manager as managing the staff and overseeing day to day operations of the Station. Mr Walsh said that the applicant was on paid suspended leave from 17 September 2019 for the duration of the Investigation. Mr Walsh returned to his current role on 8 October 2019. He attended a Disciplinary Review Panel discussion on 18 December 2019 and was delegated to make a decision as to whether the applicant had engaged in misconduct and if so, what if any, disciplinary action should be proposed. In deciding the matter, he had regard to the various statements of Ms Singh and Mr Gakhal, the responses from the Union on behalf of the applicant, the official Hindi translations, the investigations internally, an external Investigation and the above polices of the respondent.
[24] Mr Walsh said he was satisfied the allegations against the applicant were made out and his conduct was sufficiently serious to justify dismissal. Mr Walsh also reviewed three earlier complaints of a similar nature made against the applicant. In March 2006, a disciplinary investigation had found that the applicant had used abusive language towards a colleague and a customer, including by using words to the effect of:
‘Who do you think you are, you’re fucking nothing; if I ever see you outside the train station I will beat the shit out of you’.
At the time, the disciplinary outcome was dismissal, but this was reduced to 12 months’ regression, with no acting up during this period. The applicant was advised that any further breaches of policy will result in further disciplinary action, including dismissal.
[25] In February 2001, the applicant’s conduct was considered unsatisfactory when he was found to have used abusive and threatening language in front of a customer. In December 1997, the applicant failed to treat a train driver with courtesy and respect.
[26] Mr Walsh claimed he took into account the applicant’s long service (24 years) and his age (60), but decided that this did not warrant any leniency in respect to dismissal. After the preliminary decision, the Union responded by opposing the dismissal decision, and asserting the applicant denied using any offensive or abusive language towards Ms Singh. The applicant provided character references and a letter of commendation.
[27] Despite the Union’s submission, Mr Walsh did not change his view that the conduct had been substantiated, that the applicant displayed no remorse or contrition and he showed a complete lack of awareness of the seriousness and inappropriateness of his conduct. Mr Walsh’s final disciplinary decision was confirmed on 14 February 2020.
[28] Mr Walsh said he later learnt of another incident of misconduct by the applicant on 22 November 2016, which appeared to be very similar to his conduct on 12 September 2019. As a consequence of this incident, the applicant was given a final written warning and was placed on a Performance Conduct and Improvement Plan (‘PCIP’) which required him:
(i) utilising Sydney Trains’ Employee Assistance Program in relation to his family responsibilities that were affecting his work;
(ii) taking special leave from work for a period of two weeks;
(iii) attending external counselling sessions to address behaviour; and
(iv) going on a Performance and Conduct Improvement Plan for 3 months.
[29] It was Mr Walsh’s evidence that he had serious concerns if the applicant was returned to the workplace because:
• he would come into contact with Ms Singh;
• he had showed a lack of contrition and remorse;
• he had not provided any undertaking that he would act differently in the future;
• there were four previous incidents of similar inappropriate behaviour, including an incident in 2016. This demonstrated a pattern of unacceptable behaviour which was likely to be repeated;
• there could be no confidence that the applicant would abide by Sydney Trains’ policies and procedures, particularly if he was returned to a position of authority; and
• there could be no confidence the applicant would treat members of the public with respect and courtesy.
The applicant’s statement
[30] The applicant set out his employment history and sought to explain or clarify the issues raised in the evidence of Mr Walsh, Ms Singh and Mr Gakhal.
[31] As to the incident referred to by Mr Walsh in 2006; see: [24] above, the applicant denied using the words quoted by Mr Walsh, but did not deny he had an argument with a Mr John Singh, who is the same person who he referred to in the 12 September 2019 incident with Ms Singh.
[32] The applicant gave his version of this incident (in 2005), when he was handing over to Mr Singh. He claimed their conversation was to the following effect:
‘The applicant: John, we need to speak about something.
Mr Singh: Now what the fuck do you want?
The applicant: I need to ask you to stop calling me at home and yelling at me. You’ve called me up in front of my wife, my kids and my dad. Anything you have to say can wait until I get to work, ok?
Mr Singh: Are you fucking kidding me?’
The applicant understood that a customer heard loud yelling and later reported it to Auburn Station. The matter was escalated.
[33] The applicant said he and Mr Singh did not like each other because Mr Singh would leer at young girls and he would ‘tell him off’. He recalled an incident in 2005 when he rebuked Mr Singh for leering at two 11-12-year-old girls, making them feel uncomfortable. Mr Singh simply sneered and went home. The applicant claimed Mr Singh had a habit of calling him outside work hours to complain about something he believed had not been done at work. He recalled two occasions when Mr Singh had called him and yelled and abused him over the phone. While Mr Singh left Sydney Trains in 2013, he understood he and Ms Singh were, and remain good friends.
[34] As to the incident in 2001, the applicant said that it concerned two customers who had overdosed on the train he was working on. He called the Driver who told him to check it out. He claimed one male customer was turning blue and a woman was looking sick. He called the DM and Customer Service Attendant (‘CSA’) at Glenfield and asked them to call a paramedic. The DM told him to keep the train moving because it was peak hour. He argued with him and said he would not move the train with two sick passengers, and it was necessary to call paramedics. When they arrived, they gave the man Narcan (blocking the effects of opioids) and he quickly recovered. Both passengers left the train at Glenfield.
[35] The applicant very clearly recalled the third incident in 1997, when a passenger walked through the guard cabin unauthorised. He rang the Driver, but he did not answer. When the train arrived at Hurstville, he walked up to the Driver’s cabin and saw the same passenger and the Guard sitting together. He and the Driver had the following conversation:
‘The applicant: I was calling you up on the PA. What’s happening?
Driver: Well I didn’t hear you.
The applicant: Ok fair enough. This man here pushed me aside and walked through my cab. What’s he doing here?
Driver: Why don’t you go back, mind your own business and do your fucking job.
The applicant: I’m not moving the train until he gets off.’
The applicant claimed he was ‘seriously worried’ that if the train left, he would be breaching Sydney Trains’ safety policies. He called the Main Office. He and the Driver were relieved, and he reported back to the Guard Trainer. He claimed the Trainer told him he had done the right thing and had done a good job. The applicant said he was never made aware of any complaint by the Driver, nor was he disciplined about this incident.
[36] The applicant referred to the incident in 2016 and said he remembered it very clearly because it was about 10 days after his father passed away. The applicant explained the circumstances preceding his father’s death, and said it took an enormous emotional toll on him and he was in ‘really bad shape’. Although he took three days off, he thought it would be better to go to work than sit around. In hindsight, this was not the right decision.
[37] On the day of the incident, there were serious delays at Granville and the indicator boards were not displaying correct information. Customers were running between platforms and getting very frustrated at the staff and abusing him and the CSA. This was very stressful and he was highly emotional at the time. A CSA told him that when she called an operator, the person hung up on her, without reason. His conversation with the Line Information Control System (‘LICS’) Operator was recorded as follows:
Conversation is commenced at 13:47:36 with LICS answering the phone | |
LICS Operator | Granville LICS |
SOM | Yer Brother who's the one person sitting in the seal box |
LICS Operator | that's me Bro I just got here |
SOM | No No No, my my, CSA just called up to report an incident, just put the phone down on her is that any way to behave |
LICS Operator | what do you mean she's, she rings up and she's aggressive right |
SOM | No she's not, I'm standing right here brother, she's not aggressive |
LICS Operator | come on mate you're going to be on her side I have just been getting lunch |
SOM | No, No, No |
LICS Operator | and, and then they changed at the last minute, right |
SOM | so you are trying to tell me she's aggressive, I'm sitting right in front of her |
LICS Operator | yerr she was |
SOM | Are you guys on the fucken drugs or what |
LICS Operator | Excuse Me |
SOM | Are you on the drugs or what |
LICS Operator | Excuse Me |
SOM | Shut your fucken mouth |
LICS Operator | What did you just say |
SOM | gus (sic) this recorded and come here |
LICS Operator | I will |
SOM | get this recorded and I want to see how you say she is aggressive, stupid idiot |
LICS Operator | Excuse me, what did |
SOM | who taught you this job |
LICS Operator | what did you say to me |
SOM | Shut your mouth |
LICS Operator | Excuse Me |
SOM | Shut your mouth... you stupid..... |
Conversation is terminated by the SOM at 13:48:20 when the phone is slammed down | |
The applicant claimed that at the time he was struggling emotionally and regretted acting as he had.
[38] A meeting was held on 22 November 2016, with management, Customer Service Manager Henry Clavell, and HR Business Partner, Kirsty Sweeting. He accepted he was at fault, but was not going to use his father’s death as an excuse. However, when Mr Clavell explained to Ms Sweeting the applicant’s circumstances, he suggested he go home to be with his family. Ms Sweeting agreed and he was granted special leave for two weeks. The applicant acknowledged he was put on a PCIP for three months.
[39] The applicant and Ms Singh had worked together for approximately eight years. They are not close, but have a cordial and professional relationship. The applicant claimed he had heard Ms Singh using swear words in both English and Hindi. He had also observed her giving him the ‘finger’, usually in a joking context.
[40] The applicant referred to incidents of concern to him about Ms Singh. In 2017, when Ms Singh was having trouble getting along with another employee, she had told him that she could ‘stir him up and let him react’. He warned her against doing so. The applicant further claimed Ms Singh:
• would often be upset because of issues in her family;
• had difficulties with alcoholism in her family and he would console her;
• would often come to work and take her anger out on staff;
• had difficulties with a cleaner, Ms Linda Godfrey and DM Mr Aman Hamad;
• would make personal comments about him and his family, particularly about his wife being wealthy. This was rude and unprofessional. His wife had a successful event planning business and is well known in the Punjabi and Sikh communities; and
• had said when a female colleague left in 2015, ‘good – that’s one less woman here’.
[41] The applicant denied Ms Singh’s version of events of an incident in 2012; see: [11] above. He never said anything like what she alleged and works well with all Indians, including Punjabis.
[42] The applicant agreed he was a member of the WhatsApp group which would share funny pictures and jokes. There had never been any issue about this in the past. He believed no-one was offended by the ‘two bird post’ on 11 September 2019, but he sought to clarify its meaning. Ms Singh responded and said, ‘It’s u (sic) Peter who talks the most’. This was the first time Ms Singh had ever sent him a message before. He was upset by Ms Singh singling him out as the ‘red circle bird’, who had bad communication skills. He believed Ms Singh did not understand a simple joke.
[43] The applicant’s version of the incident the next day (12 September 2019) was as follows. During handover, when he had asked Ms Singh to arrange fresh first aid supplies, she responded aggressively and insisted he listen to her. Despite being tired and wanting to go home, he sat down, and Ms Singh accused him of targeting women about the ‘two bird’ post. He told her ‘If you didn’t understand you should ask your kids. If you were offended though I’m happy to apologise’. Ms Singh then approached him and pointed her finger and said his reference to 6 foot and 4 foot (mentioned in their text exchanges) was offensive. Referring to her friendship with Mr Singh, who had a reputation of behaving inappropriately towards women, he said:
‘You’re so concerned about me targeting women, yet you were good friends with John Singh who has a history of sexual harassment at work. John Singh Bhen chod saala (John Singh is a bastard).’
[44] The applicant claimed the term ‘bhen chod’ technically means ‘sister fucker’, but can have many English equivalents such as ‘bastard’, ‘damn it’ and ‘shit’. The applicant claimed the following exchange occurred:
‘Ms Singh: Too bhen chod. (You’re a bastard)
The applicant: Toona osha talraa chaalaa (You were sucking up to him). You and John Singh are a disgrace to the Punjabi community.
Ms Singh: Too apni maa ki chaat ko jaeke chaat (go and lick your mother’s arse).’
The applicant was completely shocked at this, because in Hindi, this was the most offensive comment a person could make. He replied:
‘What did you say? You don’t even know my mother. I’ve never heard anyone swear like this. You can call fucking Graham right now and we can settle this issue.’
The applicant claimed Ms Singh then went silent and sat down. When she started to cry, he said:
‘I can’t believe this. You swear at my mum and you’re sitting and crying over this? I can’t believe this.’
[45] The applicant briefly left the office to go home but returned, as he wanted to resolve the issue. At this point, Mr Gakhal arrived and told them both to calm down and to settle their issue. He said Mr Gakhal offered to drive him home, because he could see he was upset. He declined. However, when driving home, he had to stop because he was so upset. He called Mr Gakhal and offered to come back to the office and resolve the issue by involving Mr Ellis. Mr Gakhal offered to come to him, but he said he was okay and drove home (Mr Gakhal made no mention of this call anywhere). He spoke again to Mr Gakhal who told him of the importance of acting professionally at work and not to use foul language. He agreed with him.
[46] The applicant described his background in India, before leaving Mumbai with his wife in 1991 to come to Australia. He had a few jobs before commencing work for Sydney Trains. He remains very passionate about his job, as it is so much better than factory work.
[47] The applicant said his wife is Punjabi and her customers are 90% Indian, including many Sikh clients, who are employees, or who are related to employees of Sydney Trains. Due to COVID-19, his wife’s business had stalled, and they now have very little income. The applicant said he was a devout Catholic and had worked with many Punjabis and Sikhs at Sydney Trains. He was so shocked by Ms Singh’s comments on 12 September 2019, he agreed he did call her a disgrace to the Punjabi community. However, he never called Punjabis bastards, as this would insult his wife, family and many friends. He said he had always wanted to set a good example for his two sons (aged 27 and 26) and show them it was important to do the right thing. The applicant added that his wife had experienced a cancer scare in May 2019, and this experience had terrified him. It began a downward turn towards depression, which culminated when he found out he was dismissed a week before Christmas. He claimed he felt like killing himself and had never felt like this before. He sought medical treatment and continues to take a regular antidepressant. He had not left the house more than five or six times since his dismissal and feels completely helpless and ashamed.
[48] The applicant said that he took out a home loan of $700,000 in mid-2019 and would not have been able to meet repayments, if the bank had not suspended loan repayments. In addition, his son was in two car accidents in February and March 2020, which had put further pressure on the family finances. At 60 years of age, he is unsure of what work he will be able to secure. He had been helping his wife with her business and doing handywork around the house to save money.
Reply statement of Ms Singh
[49] Ms Singh denied commonly using swear words in the workplace. The incident on 12 September 2019, when she had repeated the applicant’s words back to him, was ‘a one-off occasion’. Ms Singh expressly denied:
• the incident in 2017 about her and another employee. Their only differences were work-related;
• ever making disrespectful comments about the applicant’s wife;
• the words she had been alleged to have said about a departing female work colleague in 2015. She appreciated having another female DM at Granville;
• making any aggressive comments towards the applicant in the 12 September 2019 incident;
• that Mr John Singh was her mentor. They had a professional working relationship;
• making any comment about the applicant’s mother. Rather, the applicant said to her ‘You should go and lick John Singh’s arse’; or
• repeating back to the applicant ‘I will fuck your mother’.
[50] Ms Singh claimed she had only ever repeated back to the applicant what he had said to her. She relied on her statement of 15 October 2019, during the Investigation. The applicant made the following comments:
‘You and your Punjabi community is all fucked. You are a disgrace and all Punjabi's are bastards. You should go and lick John SINGH's arse. You and John Singh are same. Ja ke gand mar uski’.
‘What are you going to do you fucking bitch. You bhain chood. You maa chood lok. I'm not scared of anyone. I don't care what happens’.
‘Yes I am abusing you, you bhain chood. Fuck off. You want to call the fucking manager? I will call fucking Graeme and ask him to come and sort this out’.
‘I don't care about this job. I'm not scared. If something happens to my job, I will smoke you and your family. Agar kisi ne meri Gand Mari to main unki maa chodunga, bhain choodon ke’.
[51] Ms Singh said that she was upset and fearful of the applicant and had told Mr Hondros that ‘Peter said that if anything happened to his job, that he would smoke me and my family. I was terrified. I am terrified.’ Mr Hondros replied ‘That is not okay Jas, I really encourage you to report this.’
Oral evidence
Ms Singh
[52] In cross examination, Ms Singh was asked about the staff WhatsApp social group. It has about 10 members and was originally set up as a lottery syndicate. Occasionally, members exchanged stories and jokes and members got on well. In reference to the ‘two bird’ post. Ms Singh agreed that the initial joking exchanges were between the applicant and another employee, Karen Reyes. She was the only woman who commented, and their discussion ended with her saying ‘All good Peter, it was funny’. Ms Singh said she initiated the first ever exchange with the applicant in which she said ‘It’s u (sic) Peter who talks the most’. She said she was not annoyed, but concerned when Mr Reyes had said ‘I think it could be the other way round’, meaning the joke could be viewed from either gender. Nevertheless, she believed the photo was ‘sexist’. She agreed she did not know what Ms Reyes thought about it. Ms Singh said that when Peter said ‘read between the lines’ she compared this to the terminology for the train lines, as a light-hearted response. Ms Singh believed the messages were inappropriate for a manager, who should lead by example as someone might take it as sexist. Ms Singh conceded no-one had taken offence and that she had not told the applicant his message was inappropriate. Ms Singh confirmed that she and the applicant had not worked together for five or six years and only spoke to each other during handovers. She agreed that if she wanted to raise a professional issue, her own response should have been more professional. A short time later, she sent the image back to him with a red circle around the bird with its mouth open. She did not consider this to be unprofessional, even though she understood the joke.
[53] Ms Singh was taken to her statement of 15 October 2019 to the Investigation. She had not known the processes involved in a disciplinary process, but accepted an outcome could be dismissal. Ms Singh agreed that the incident on 12 September 2019 during ‘handover’, was 18 hours after she had told the applicant he talked too much. Ms Singh denied she was frustrated that the applicant had not resolved the WhatsApp incident. She stated that she also worked night shift and would not be tired, as it was just part of the roster. There was nothing to resolve, other than she had his best interests at heart (not to send inappropriate messages). She was not upset, although she accepted she wanted to discuss the issue with him, not confront him about it. She just wanted to share her opinions with him. However, while she was not personally offended, others might have been.
[54] Ms Singh denied the applicant had told her that he was tired after just finishing night shift (10am-6pm) and wanted to go home. When she said something about him targeting women, the applicant started abusing her. Ms Singh confirmed her statement in the Investigation:
‘He was screaming so loud it seems like his lungs are going to pop out’.
[55] The applicant had also mentioned Mr John Singh, someone who she used to work with, when he was Station Master at Granville, although they rarely worked on the same shift. Ms Singh said the applicant had never mentioned anything about Mr Singh ‘not treating women very well’, although she knew they did not get on.
[56] It was Ms Singh’s evidence that the word ‘bhen chod’ in Hindi is a very bad word. It does not mean frustration or complaint, nor is it a description of someone, although the applicant described Mr Singh as a ‘bhen chod’. She agreed she repeated the words back to him, but not immediately. It was only after the applicant kept abusing her and she was in shock and felt trapped. She did not know why she did so, because she does not use such language, as it is disgraceful, particularly in the presence of a female. She agreed that repeating his own words back to him made him angrier. She maintained she was terrified and felt trapped, because the applicant was standing in front of the door. She was asked if it was normal for someone who is scared and trapped to make the other person even angrier. She did not know why she did so, but stopped when he became more aggressive.
[57] Ms Singh believed the applicant threatened her and her family when he said he was going to ‘smoke’ her and her family. Ms Singh agreed she did not report the threat to the Police or warn her family; rather, she went directly to her manager. Ms Singh agreed she continued to work the rest of her shift that day. Ms Singh said that Mr Gakhal entered the room when the applicant was abusing her. However, she did not tell Mr Gakhal that the applicant had threatened her and her family. Nor did she do so when the applicant had left, and Mr Gakhal stayed with her. She also did not tell Mr Gakhal later that day that the applicant had used a slur against her mother. This was embarrassing for a woman in her culture and she used different words to describe it. She had later told Mr Gakhal she had repeated the applicant’s words back to him.
[58] Ms Singh was referred to Mr Gakhal’s statement to the Investigation in which he said that in a phone call, she had agreed she had not treated the applicant very well and had used swear words to curse his mother. However, she explained that she repeated the words back to him and put a ‘You’ in front of them, for example when the applicant said ‘You bhen chod’ (I’m gonna fuck your mother) she replied ‘You fuck your mother’. She was sorry for repeating this abuse. However, he had sworn at her mother who had died two years earlier. It was terrible. Ms Singh was referred to Mr Gakhal’s statement in which he had said:
‘She told me that she was sorry for doing it and she should not have done it (repeating the swear words back’.
[59] Ms Singh agreed she had told Mr Gakhal she did not want to take the matter any further and initially, she had not wanted to. She had not told Mr Gakhal that she had also sworn at the applicant’s mother and did not tell him about death threats. She recalled seeing Mr Gakhal once at work when she returned in October, despite him saying that he had seen her a few times and asked her how she was. Ms Singh agreed she did not say she had sworn at the applicant’s mother in her letter of complaint, but did say she had repeated what he had said in her statement to the Investigation.
[60] Ms Singh returned to work the next day (13 September 2019) at 6am. She claimed she had not slept well, had been crying and was scared for herself and her family. She agreed she had positioned herself at the Station so that the applicant would walk past her on finishing his shift. She did this because she was hoping he would apologise. He walked past and said nothing. She did not say anything to him. She explained that she had felt safe at the station because there is CCTV.
[61] Ms Singh believed the applicant owed her an apology for his abuse over 10-15 minutes and for threatening her. She was scared of him. When he did not apologise, she decided it was ‘the right thing to do’ to lodge a complaint.
Mr Gakhal
[62] In cross examination, Mr Gakhal explained that because he worked all over the network, he had not much to do with either the applicant or Ms Singh until mid-2019. For a period in 2019, he worked at Granville in peak time. His routine was to introduce himself to the Duty Manager at 6am and then proceed to the Control Room. On 12 September 2019, when he approached the DM’s office, he heard a male voice talking loudly. There was no screaming. As he entered the room, the applicant left, but he returned soon after and appeared unhappy. He told him and Ms Singh to calm down and they did. They both agreed they had not been acting professionally. Mr Gakhal believed that as the applicant had just came off night shift, he was probably fatigued. He was concerned he may not get home safely and said this to him. The applicant was not crying. He told him he was okay, and he would call when he got home. However, the applicant called him about an hour later and he told him Ms Singh wanted to talk about the WhatsApp incident. The applicant said he just wanted to get home. At the time (during this call) the applicant’s voice was heavy and seemed like he was crying. He told him it was not appropriate to swear at work and he agreed. He asked him again if he was okay and he said ‘yes’.
[63] Mr Gakhal said that after the applicant left, he stayed with Ms Singh and had a coffee with her another female employee. They did not discuss the incident at that time, because a third person was present. Ms Singh did not mention feeling threatened. He would have been concerned if she had. She had said she was okay. In a later phone call, Mr Gakhal claimed Ms Singh said she:
• had not treated the applicant very well;
• had sworn against the applicant’s mother, but did not say what she had said;
• knew the applicant would not have liked her swearing against his mother and knew he loved his mother very much; and
• should not have done it.
[64] Mr Gakhal said she did not mention the applicant swearing in Punjabi or that he had threatened her life. He could not recall her mentioning she would apologise to the applicant, but she did say she would sort it out herself. It was Mr Gakhal’s evidence that she did not mention these matters in another phone call the next day. He saw her a few times that day and asked if she was okay and she said ‘yes’.
[65] In re-examination, Mr Gakhal said his concern for the applicant getting home safely that morning, was that he had just finished night shift, there had been an argument, he appeared upset and the other person was crying. It was not a normal situation.
Mr Walsh
[66] In cross examination, Mr Walsh began by explaining his area of responsibility as Deputy Director, Customer Delivery Region 2. It covers a large area in Sydney of 9 customer areas (outside the CBD and Inner West), with 105 of the 165 stations in the network and he also has responsibility for 230 Fare Compliance Officers. He understood that of the 105 stations, 20-30 had DMs, each with 2-3 DMs.
[67] Mr Walsh emphasised the critical issue of safety in the rail industry and his responsibility for the interests of employees. He agreed that when complaints are made, they should be acted on. However, with about 1000 staff, he does not get involved in all complaints, as most matters are dealt with by relevant line managers. He understood it can be a stressful work environment and people will react differently to stress.
[68] In the present case, Mr Walsh agreed that in deciding to dismiss the applicant, he took into account three previous incidents and subsequently became aware of a fourth in 2016. Mr Walsh could not recall the details of the incident in 2001 and had relied on the documents at the time. Nevertheless, he accepted the general proposition that if a customer was experiencing a medical episode on a train, they should get help from staff. In this case, the applicant’s conduct was found to be unsatisfactory in that he had been abusive and threatening.
[69] As to the incident in 1997 (failing to treat a train driver with courtesy and respect), Mr Walsh relied on the filed documents. He was not aware if the applicant had received this complaint. He said it may be that the issue was raised informally by a manager at the time, and may not even be a disciplinary matter.
[70] As to the 2016 issue, Mr Walsh had not been directly involved, but he understood the applicant had been experiencing personal issues at the time (the passing of his father) and went on special leave at Sydney Trains’ suggestion and undertook counselling. Nevertheless, while Mr Walsh was not solely reliant on this incident, he believed it demonstrated a pattern of behaviour, not dissimilar to the incident with Ms Singh.
[71] Mr Walsh referred to the comment Ms Singh claimed the applicant made about ‘I will smoke you and your family’. While not mentioning the word ‘kill’, he believed it certainly was a threat to do something. While it was a threatening comment, it was not his view, the applicant actually made a credible threat to kill someone. If he had believed so, it would have been reported to Police.
[72] Mr Walsh said he was unaware that the applicant ‘acted up’ as a Customer Area Manager in Parramatta during 2015 on two occasions. He had no knowledge of any incidents involving the applicant at that time. Mr Walsh was referred again to the outcomes of the 2016 incident involving a PIP for 3 months, but no regression. Mr Walsh explained that a PIP is not a disciplinary measure. However, it was a warning that his behaviour needed to improve. He was unaware of any further incidents since that time.
[73] Mr Walsh said that he took into account the various character references the applicant had provided. He was not surprised the applicant provided references, although he had not seen as many as 10 references before in other cases. He took these into account, as well as the Union’s submissions, the applicant’s age, service and prospects of alternative employment. However, these factors did not outweigh the seriousness of the applicant’s conduct. Mr Walsh agreed that none of the references spoke of him being aggressive or racist, noting you would hardly provide one, if it did. He agreed the character references were overwhelmingly positive. However, Mr Walsh maintained there was clear evidence which caused him great concern about the applicant’s ability to treat others with courtesy and respect and abide by Sydney Trains’ procedures and policies. Nevertheless, he acknowledged that if the Commission found otherwise, he would have to accept it.
The applicant’s cross examination
[74] The applicant agreed that he did not get on with the former employee, Mr John Singh. He accepted he was not related to Ms Singh. The applicant accepted that he had used the word ‘bastard’, but it was directed to describe Mr John Singh. He agreed Ms Singh was the only other person in the room.
[75] In respect to the incident on 12 September 2019, the applicant had received the allegations in writing on 19 December 2019 and had authorised his Union to respond on his behalf. He had responded on two further occasions (25 November 2019 and 29 January 2020). There were no other responses, and he declined to attend an interview during the Investigation or otherwise.
[76] The applicant confirmed that in all his responses, he denied swearing at Ms Singh, at any time, on 12 September 2019. He believed Ms Singh’s account was untrue and her allegations baseless (an ‘absurd fabrication’). Further, his position was she had lied, whenever she was asked about the incident, including to the Commission. Rather, the applicant maintained it was Ms Singh who angrily confronted him, without provocation, and swore against his mother. The applicant acknowledged that the allegations (if true) would constitute a breach of the Code of Conduct and the respondent’s bullying and harassment policy.
[77] The applicant acknowledged that the translation of the language used during the incident from Hindi to an Australian equivalent was ‘more or less’ a faithful translation. He explained that some words like ‘bhen chod’ can mean someone is shocked when the translation is ‘oh fuck’. It depends on the situation at hand and the meaning changes if the word ‘you’ precedes it.
[78] The applicant conceded he used the word ‘fucking’, but only in the context of telling Ms Singh she could ‘call fucking Graham (Ellis)’. This was not directed to Mr Ellis, but merely an expression of frustration. He also agreed he had told Ms Singh that she and Mr Singh were a disgrace to the Punjabi community. He had said this because of his personal knowledge of the Punjabi community. In respect to using the words ‘bhenchool sala’, he accepted that it technically means ‘sister fucker’, but he was using it to describe Mr Singh as a ‘bastard’ or ‘dirty man’. He repeated that at no time, had he directed swear words or foul language towards Ms Singh. He claimed:
‘The only thing I said directly to her was when I included John Singh and I said, 'Both of you are a disgrace to the Punjabi community', and if you read further down, the only other thing I directed to her was after she swore at my mother I said, 'No other lady from anywhere would swear the way you have sworn at my mum'. That's the only time I got personal with her.’
[79] The applicant denied he had walked back and forth in front of the office door; rather, he had been sitting at the desk. Ms Singh’s claim to the contrary was false. He could not see how Ms Singh believed she felt trapped. The only time he got up was when he left the office and then returned. He believed she had made up other matters to cover up what she had said about his mother and may have thought he would complain about her conduct. He was asked why he felt Ms Singh would lie about the incident. He suggested that the WhatsApp incident may have been a reason, but he had had no problem; it was a joke and not about ‘attacking women’. He had told her if she didn’t understand the joke, she should ask her kids.
[80] The applicant understood Ms Singh had taken time off, attended upon a doctor and had been assessed for workers’ compensation in respect to the incident. The doctor recorded that Ms Singh had told him that she had been ‘verbally abused by another colleague at work’. The applicant believed she had also lied to the Doctor.
[81] It was the applicant’s evidence that Ms Singh had not even mentioned the text messages and launched into him after if he had asked her to organise restocking the first aid supplies. Ms Singh said ‘Are you talking to me … You sit down and listen me out first’. The applicant claimed that at no time, had Ms Singh said she was going to call Mr Ellis; it was he who suggested it, and he said so at least three or four times. Ms Singh did not cry until Mr Gakhal entered the room and he had left. She was not crying when he returned shortly thereafter.
[82] When shown Mr Gakhal’s statement (‘I recognised that Peter was using some Hindi swear words’), the applicant said he had only repeated what he had said to Ms Singh earlier, which was not swearing. He was not directing this towards Ms Singh, but he was telling her that she was ‘sucking up to Mr Singh knowing what he was’. When he had returned, he agreed he was frustrated and ‘slightly angry’. He had not shouted. He insisted he had never directed the word ‘bhen chod’ towards Ms Singh. Mr Gakhal told them both to calm down. The applicant claimed he had not sworn when he returned. He had only asked Ms Singh multiple times, to call Mr Ellis. He pointed out that he had never complained about anything in 24 years’ service with Sydney Trains. He agreed he had not said he had come back to resolve the issue, as claimed in his witness statement. Nevertheless, he had wanted to do.
[83] The applicant accepted that had Ms Singh said ‘go and lick your mother’s arse’, he did not report this comment, despite how upset he claimed he was. He said that he has not used bad language at work, but had been sworn at himself. In this instance, he just left it to Ms Singh, as it was she who had an issue with him. He claimed that Mr Gakhal had told them both that it did not look good for either of them, not to take it further and settle it between themselves. He did not think it was necessary to give his account of the incident to anyone in management. He agreed he told Mr Gakhal he was going home and left. However, he had later agreed with Mr Gakhal that he had not acted professionally. He accepted he had not told Mr Gakhal that Ms Singh was the protagonist. He had offered to return to the office, if Ms Singh wanted to resolve the issue with Mr Ellis’ involvement.
[84] Counsel put to the applicant that each of his claims about Ms Singh; see: [40] above, were untrue. He said his written evidence was true and he did not make it up. He added that it was well known Mr Singh and Ms Singh were good friends. He agreed that Ms Singh used the worst language anyone could say about his mother. However, he conceded he did not report it.
[85] When taken to the transcript of the incident in 2016 and asked if he was someone with a ‘very short fuse’, the applicant agreed he had used this language, but he had good reason due to the chaos on that day in which customers were abusing staff. The signal box operator had accused his CSA of being very aggressive, when she is not. Nevertheless, he was very sorry for his behaviour on that day. As to his character references, he had simply asked about 16 people, if they would provide him a character reference.
[86] Finally, the applicant denied making false allegations in relation to his account of the incident with Ms Singh, because he knew the outcome of the disciplinary process might be very difficult for him.
SUBMISSIONS
[87] Mr Meehan accepted that Sydney Trains bears the onus of establishing the conduct alleged against the applicant, had been proven, on the balance of probabilities, and the conduct amounted to misconduct. The respondent maintained that the strength of the evidence would satisfy the Commission of the gravity of the misconduct. While reasonable satisfaction is not provided by inexact proofs, indirect testimony or indirect inferences; see: Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), the Commission is still able to draw inferences from primary facts.
[88] Counsel submitted that Ms Singh’s unchallenged evidence that she had expressed concern about the applicant’s threats to her and her family, would be accepted. Further, no-one had suggested any motive for Ms Singh to lie about what happened on 12 September 2019. Reliance was had on the direct testimony of Ms Singh and Mr Gakhal. Ms Singh provided four statements: the first to Mr Ellis, the statement to the Investigation of 18 October 2019; and two statements for these proceedings.
[89] Mr Meehan observed that there were a number of uncontested facts about the 12 September 2019 incident:
• Ms Singh and the applicant were alone in the office at shift handover at around 6am;
• there was an argument between them, in which some swearing in Hindi and English had been said;
• the applicant was loud and angry;
• as Ms Gakhal entered the office, the applicant left, but returned shortly thereafter; and
• at this time, Ms Singh was sitting at the work station crying.
Mr Meehan said that the Commission would need to resolve the diametrically opposed accounts of how the argument began, who was the protagonist and what was said.
[90] Mr Meehan referred to the following passage from Ms Singh’s reply statement:
‘I was upset and fearful after my conversation with Mr Bent. After I had been taken for coffee with Mr Gakhal and Ms Letka [Cvetovski] I called my 2-up manager Mr Hondros and had a lengthy conversation about the incident, during which I said words to the effect, 'Peter said that if anything happened to his job that he would smoke me and my family. I was terrified, I am terrified'. Mr Hondros, 'That is not okay, Jas. I really encourage you to report this'.’
[91] Counsel accepted that Ms Singh had not raised this threat with Mr Gakhal on the day of the incident, but she certainly did so on the following day to Mr Hondros. As Ms Singh was not challenged as to this evidence, there is no reason not to accept it. Moreover, there was no challenge to Ms Singh’s evidence that:
• she obtained counselling through the EAP;
• she was off work from 14 September – 30 September 2020;
• she had obtained medical assistance having experienced symptoms, including trouble sleeping, anxiety and fear, loss of appetite and loss of confidence; and
• a Workers’ Compensation claim was made and a graduated RTW program had taken place.
[92] Counsel submitted that Ms Singh gave a detailed and consistent account of events which was cogent and coherent. On the other hand, the applicant had made the assertion that on every material point of difference, Ms Singh had lied and had given false evidence in these proceedings. Mr Meehan noted that it was not put to Ms Singh in cross examination that she was not telling the truth on the key issues of who initiated the argument, what was said and how serious the language was when translated into English. Mr Meehan said that given the applicant’s case was premised firmly on the assertion that she had consistently lied, it was incumbent on the Union to have put to Ms Singh that she was not telling the truth, or explain why her evidence should not be accepted. This never happened.
[93] Counsel referred to Ms Singh’s evidence that she had merely repeated his words back to him, by putting ‘you’ in front of his words. She had agreed the applicant got angrier when she did so. Ms Singh had explained she had only repeated ‘a few of them’ but she then ‘felt very, very unsafe and was in shock. I only repeated two to three then stopped when he was becoming more aggressive.’ Again, Mr Meehan noted that it was not put to Ms Singh that she was not telling the truth.
[94] On the other hand, the applicant had steadfastly insisted he never swore at Ms Singh and does not swear at women. His cross examination was founded on an inconsistent proposition. Therefore, questions of witness credit cannot be avoided.
[95] Mr Meehan put that the applicant would have the Commission reject as untrue Ms Singh’s complaint and her unchallenged evidence of the effects the incident had on her. There was no plausible reason for her to lie and no reason was suggested. There is a contemporaneous record and evidence of what had happened. Ms Singh’s version of events was consistently recounted in the Investigation, even when the applicant chose not to participate in the interview process. Counsel noted that he did not complain about the ‘worst slur anyone could make’ against his mother.
[96] Mr Meehan submitted that the Commission would prefer Ms Singh’s evidence and it met the requisite standard to prove the applicant’s conduct had occurred. It was not necessary for the Commission to resolve every last contested detail about every word, or every sentence. It was only necessary for the Commission to be sufficiently satisfied that the allegations had been made out and the applicant’s dismissal was for a valid reason.
[97] Counsel added that although the personal mitigating consequences on the applicant were not insignificant, when weighed in balance, they would not outweigh the seriousness of the applicant’s conduct, the evidence that he was familiar with the Code of Conduct, the fact he was a manager and he had received a final warning for not dissimilar conduct. Mr Meehan submitted that if the Commission found some harshness, it would not reinstate the applicant due to the gravity of the conduct. Any compensation would be heavily discounted for the misconduct, in any event.
For the applicant
[98] Ms Morgan-Cocks described the incident on 12 September 2019 as follows: after working night shift, all the applicant wanted to do was to handover and go home. Ms Singh did not want him to leave and wanted to have an argument with him. When the argument did not go her way, she had made up what happened. The issue in the case is not about the WhatsApp incident, but whether Sydney Trains can prove what it claims happened on 12 September 2019. It had not discharged this onus.
[99] Ms Morgan-Cocks referred to the undisputed matters. The applicant accepted there was an argument between them. He was coming off night shift, was tired and was upset to the point Mr Gakhal was worried about him getting home safely. Ms Singh had wanted to discuss the WhatsApp incident of the day before. She claimed that some people might find the ‘two bird’ post offensive. However, there is no basis for this belief. No one expressed hurt or offence and the only woman who commented about it, thought it was funny.
[100] Ms Morgan-Cocks submitted that nothing was going to shake Ms Singh’s determination to confront the applicant or smooth over a misunderstanding. Moreover, their conversation was not urgent. She was looking for a fight and was not going to let the applicant leave without ‘having it out’. On the other hand, the applicant was shocked and confused about the claim he was targeting women with his ‘two bird’ post. Even though the joke could be taken both ways, it was very minor and nothing to get upset about. When he was accused of a very serious matter of targeting women, he was reminded of past experiences with Mr Singh, who was well known for allegations of sexual harassment and making women feel uncomfortable when he worked for Sydney Trains. The applicant was frustrated that two people, who belonged to his own wife’s community, could act so aggressively and hypocritically. It was more than enough to provoke a reaction from him to Ms Singh’s deliberate provocation.
[101] Ms Morgan-Cocks said that it does not make sense that the applicant would say all Punjabis are bastards when he has been married to a Punjabi for 30 years and he is active in the Punjabi community. In any event, on three occasions when Ms Singh spoke to Mr Gakhal, she did not mention this racist comment to him. Further, Ms Singh failed to mention she made a slur against the applicant’s mother, which she now says was the most offensive comment you can make in Indian culture. Ms Morgan-Cocks submitted that overall, Ms Singh was not frank about what happened on the day.
[102] Ms Morgan-Cocks said the claim the applicant had threatened her and her family was absurd when she did not raise it with her family and had not mentioned it, at any time, that day. Moreover, she did not report the alleged threat to the Police. If she was scared for her life and felt trapped, she certainly did not act like it – she knew that she was provoking the applicant further by repeating his words back to him. Ms Singh had not been truthful. Her dishonesty was a concerted attempt to conceal her role in the incident and get her story in first before the applicant had a chance to do so.
[103] Ms Morgan-Cocks observed that far from being scared, Ms Singh deliberately put herself in the path of the applicant the very next day. This demonstrated she was a person who was looking for an argument, got what she wanted, then manufactured her fear and anxiety. Ms Morgan-Cocks opined that Ms Singh’s insistence on giving evidence from a separate room to the hearing, was a dramatic act to garner sympathy for her story. It should be rejected. The only time she agreed she had done the wrong thing was in the call to Mr Gakhal later on 12 September 2019. No remorse for her involvement has been shown by her ever since.
[104] Ms Morgan-Cocks submitted that Ms Singh’s dishonesty had led to the dismissal of a 24 year, long serving employee. Without her false evidence, the incident was no more than an argument between two employees which did not constitute a valid reason for dismissal. Ms Morgan-Cocks noted that Mr Walsh did not consider the applicant’s claim of a threat to her and her family’s safety, to be a credible threat to harm her or her family and he did not escalate it, or report it to the Police.
[105] Ms Morgan-Cocks relied on the applicant’s evidence as to his personal and family circumstances; see: [46]-[48] above, to submit that his loyalty and service had been ‘rewarded’ by a loss of a life time of employment. He now spends his days battling depression and doing jobs around the home. Even if there was a valid reason for dismissal, it was nevertheless harsh and justified his reinstatement.
[106] Ms Morgan-Cocks highlighted that even after the 2016 incident which Mr Walsh had relied on, it was conceded that the outcome was not a disciplinary process. Moreover, it was entirely explicable because of the applicant’s father’s then recent passing. In any event, this incident hardly demonstrated a pattern of similar unacceptable behaviour, when it had occurred almost four years ago. Nothing had happened in the meantime and the parties had moved on. Further, the first incident relied on was 15 years ago. The Commission would disregard these alleged impediments to reinstatement, given there were 4 incidents over a 24-year period. Ms Morgan-Cocks also relied on the character references from many of his former colleagues, which describe him as a good manager, with a good character who was consistently respectful to cultural groups and women, in particular. He was known for his conscientiousness and his caring concern for his colleagues, all of whom only had kind words about him and want him back at Granville Station.
“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”
[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’
[159] In my view, based on his evidence, the applicant deliberately played down his involvement in the incident and while he claimed he never swears in front of women, he had to acknowledge he was angry and had said ‘Call fucking Graeme’. This was a clear extension of his use of foul and insulting language, which he has never admitted. Given his lack of contrition and complete cast of blame on Ms Singh for allegedly provoking him, I could not be confident that the applicant would not conduct himself in a similar way, when confronted with a frustrating circumstance, involving an employee of either gender. Another factor telling against the applicant was that he has not sought to obtain any alternative employment, despite his submissions of financial hardship.
[160] On the other hand, I have given earnest consideration to the applicant’s long period of service with Sydney Trains of 24 years and the fact he held a managerial position. However, this can work both ways. One might expect that an employee of very long service and in a managerial position would have handled himself very differently, where on his own evidence, he had been provoked by Ms Singh. While I accept the applicant may have been tired and just wanted to go home, there was no evidence that shift work was unfamiliar to him. In any event, claims of tiredness, as a reason for his reactions is no excuse. Moreover, it is difficult to reconcile with his primary position that he had not been aggressive or used foul and insulting language during the incident. I reject the suggestion that Ms Singh had forced the applicant to stay, or could have forced him to stay. He could have walked away and gone home. However, he displayed a willingness to engage in the argument and bring other people into it (Mr Singh). I would add that I do not discount Ms Singh’s own unprofessional involvement in the incident and her equivalent position as Duty Manager.
[161] I have taken into account the applicant’s other pleas of ‘harshness’. However, I do not consider they outweigh the seriousness of his conduct on 12 September 2019, which in my view, disclosed a serious concern with how he reacts with persons he perceived are antagonistic or unfriendly towards him.
[162] The applicant relied on a number of character references from other employees, both in his responses to the allegations and in these proceedings. It would not be unusual for an employee of many years’ standing to have built a favourable cohort of friends and supportive colleagues. The reality remains, however, that none of these persons were present during the incident on 12 September 2019 and obviously cannot attest to the accuracy of what happened. Character references in these circumstances should be treated with considerable caution. I daresay the persons who were subject to the applicant’s short temper in 2016 and earlier, would not have held a similar view to the applicant’s character referees. In any event, the questions for the Commission are firstly, to establish the proof of the allegations on the balance of probabilities; secondly, whether this was a valid reason for dismissal; and thirdly, whether the decision was unfair. The answers to these questions are obvious from my earlier deliberation and findings.
CONCLUSION
[163] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 27 March 2020, was not ‘harsh, unjust or unreasonable’ or unfair. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[164] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.
[165] Accordingly, application U2020/5038 is dismissed and these proceedings are concluded. I so order.
DEPUTY PRESIDENT
Appearances:
Mr G Morgan-Cocks, Industrial Officer, Australian Rail, Tram and Bus Industry Union, appeared on behalf of the applicant.
Mr S Meehan of Counsel, instructed by Ms S Moten, Partner, and A Redfern, Solicitor, Lander & Rodgers, appeared for the respondent.
Hearing details:
2020.
Sydney:
29 July and 24 August.
Printed by authority of the Commonwealth Government Printer
<PR724202>
Annexure A – Code of Conduct
3. Staff Responsibilities
You are responsible for familiarising yourself with agency policies and procedures, and complying with them. You are also responsible for making enquiries if you are unsure about what actions to take.
You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace.
You must:
• treat our customers and colleagues fairly, consistently and with respect;
• behave in a lawful, professional and reasonable manner and always act in the best interest of Transport;
• comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you;
• understand the duties, responsibilities and accountabilities of your role,
• and perform these safely, honestly, courteously and fairly;
• make impartial decisions that demonstrate your agency’s values and promotes confidence in the integrity of public administration;
• comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so;
• maintain the integrity, confidentiality and security of corporate information;
• report unethical, dishonest and/or corrupt conduct;
• not discriminate, harass, bully or engage in inappropriate workplace conduct;
• not gamble, including online gambling, in the workplace and, in vehicles or vessels using official devices, during paid work time (excluding established practices such as Melbourne Cup sweeps, self- administered football tipping and lottery syndicates); and
• present yourself in a professional manner, including wearing the designated uniform for your agency and required safety gear appropriate to operations.
Nothing in this Code of Conduct affects your rights to participate in lawful industrial activities.
4. Manager Responsibilities
Managers are responsible for the fair and effective management of their staff. As a manager, you have additional responsibilities to promote and demonstrate ethical conduct, fairness and equality, and lead by good example.
Managers must also:
• set an example to staff by demonstrating agency values in everything they do and being accountable for their actions or omissions;
• communicate acceptable standards of behaviour to staff, and take preventative or corrective action where unacceptable behaviours or practices are identified;
• promote a workplace that is free from discrimination, bullying, harassment and inappropriate conduct;
• raise awareness with staff regarding agency policies and procedures;
• proactively identify situations that may lead to corrupt conduct, and ensure these are managed in accordance with relevant policies and procedures;
• inform staff members of their duties, responsibilities and expected
• performance standards with adequate information, guidance and feedback so they can undertake them effectively, efficiently and safely; and
• facilitate a positive workplace environment through open, honest, two- way constructive communication.
9. Workplace health and safety
We prioritise safety, and are committed to providing a safe workplace and safe culture for our staff, customers, suppliers and visitors in accordance with the Work Health and Safety Act 2011 (NSW), Rail Safety (Adoption of National Law) Act 2012 (NSW), Rail Safety National Law (NSW), Passenger Transport Act 1990 (NSW) and the Marine Safety Act 1998 (NSW). You must be familiar with and, as far as reasonably able, adhere to your agency’s safety policies, procedures and guidelines which provide additional information on your obligations under relevant legislation.
You should consider safety in everything you do. We all play a part in making sure that, as far as reasonably practicable, our work environment is safe and free from hazards. This includes ensuring our customers experience safe, clean and reliable passenger services, working safely and preventing circumstances that may endanger our colleagues.
Without limiting the application of relevant health and safety legislation, your agency must ensure, so far as is reasonably practicable, your health and safety and that the health and safety of other persons is not put at risk from the agency’s work.
As a staff member, you are required to:
• take reasonable care of your own health and safety;
• take reasonable care that your acts or omissions do not adversely affect the health and safety of other persons;
• comply, so far as you are reasonably able, with any reasonable safety instruction; and
• co-operate with any reasonable agency policy or procedure relating to health or safety at the workplace that has been notified to you.
12. Bullying, harassment, discrimination and inappropriate workplace conduct
We have zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct. You must treat all colleagues, customers and members of the public fairly, with dignity and respect. The manner in which such behaviour will be managed are set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy and relevant agency procedures.
Annexure B – Transport Prevention and Management of Bullying and Harassment Policy
2 Mandatory Requirements
Transport is committed to providing a safe workplace free from bullying and harassment. All staff must treat colleagues and customers fairly, with dignity and respect.
2.1 What is bullying
Bullying can occur whenever people work together in all types of workplaces, and can be carried out in a variety of ways, including through email, text messaging, social media and/or face-to- face contact.
Bullying can be directed at, or carried out by, either a single person or group of staff, and can occur at any level in an organisation.
Examples of behaviours, whether intentional or unintentional, that may be considered bullying if they are repeated, unreasonable and create a risk to health and safety may include, but are not limited to:
• abusive, insulting or offensive language or actions;
• unjustified criticism or complaints;
• deliberately and inappropriately excluding someone from workplace activities;
• withholding information that is vital for effective work performance;
• setting unreasonable timelines or constantly changing deadlines;
• setting tasks that are unreasonably below or beyond a person’s skill level;
• regular unfair or inappropriate allocation of work;
• denying access to information, supervision, consultation or resources such that it is a detriment to the staff member(s);
• spreading misinformation or malicious rumours;
• changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular staff member(s); and/or
• excessive and unreasonable scrutiny at work.
A single incident of unreasonable behaviour may not be considered bullying, however will not be ignored if identified. Agencies will intervene to ensure these incidents do not escalate. A single incident may still constitute misconduct that will be investigated and actioned in accordance with Transport policies and agency procedures.
2.2 What is harassment
Harassment generally involves unwelcome behaviour that a reasonable person would consider intimidates, offends and/or humiliates a person.
Harassment may be a single incident based on some characteristic of the affected person. The Anti-Discrimination Act 1977 makes it unlawful to discriminate or harass a person in the workplace.
Examples of incidents that may be considered harassment include, but are not limited to:
• physical factors such as uninvited touching, intruding in one’s personal space, and/or the damaging of one’s possessions,
• singling out those who are from a minority group;
• negative behaviour founded on discrimination;
• making vexatious, baseless complaints against an individual (that is, complaints that are false and with the intention to harm an individual); and/or
• sexual related behaviours that are not wanted, not asked for, and not returned, which humiliate, offend or intimidate the person - sexual harassment may include, but is not limited to:
• gestures, comments, innuendo, taunts, propositions, jokes and enquiries about a person’s sex life;
• displaying or circulating sexual material, physically or electronically;
• repeating sexual or social invitations when the person has already indicated they are not interested; and/or
• attempting to coerce a person into any form of sexual activity, or to punish them for refusal.
3 Accountabilities
All staff must ensure, insofar as it is reasonably practicable, that workplace bullying does not occur by creating a work environment where everyone treats others with dignity and respect.
Accountabilities to prevent bullying and harassment may include, but are not limited to:
Accountability | |
Transport | • Promoting an inclusive workplace culture, where organisational processes and procedures are fair and transparent, accessible and promoted. |
Managers | • Raising awareness and promoting acceptable standards of behaviour. Effective measures may include regular inclusion of our values in team meetings, coaching discussions and ‘toolbox talks’. |
All staff | • Respecting the rights of others and not becoming involved in or encouraging bullying, harassment or inappropriate behaviour. |
Workplace Conduct & Investigations Unit | • Supporting the management of reports of bullying and harassment promptly, fairly, impartially, sensitively and confidentially, in accordance with this Policy and associated procedures. |
HR Advisory | • Responding to staff enquires on this Policy and associated procedures. |
Organisational Development | • Conducting relevant bullying and harassment awareness and management briefings and/or training across Transport to ensure all staff are aware of their responsibilities in relation to appropriate workplace behaviour, and their obligations to prevent and eliminate inappropriate behaviour. |
Each Transport agency is accountable for the implementation and monitoring of this Policy, for example ensuring systems are in place to: • make this Policy available to all persons in the agency impacted by it; • ensure that any individuals or organisations that must observe this Policy as a result of a contract or other agreement with the agency are advised; and • monitor implementation. | |
Annexure C – Transport Discrimination Free Workplace Policy
All staff must ensure, insofar as reasonably practicable, that discrimination does not occur by creating a work environment where everyone treats others with dignity and respect.
Accountabilities to prevent discrimination may include, but are not limited to:
| Accountability | ||
Transport | • Promoting an inclusive workplace culture, and organisational policies and procedures that are fair, transparent, accessible and promoted. | |
Managers | • Raising awareness and promoting acceptable standards of behaviour. Effective measures may include regular inclusion of values in team meetings, coaching discussions and ‘toolbox talks’. | |
All staff | • Respecting the rights of others and not becoming involved in or encouraging discrimination, victimisation or other inappropriate behaviour against their colleagues or members of the public. | |
Workplace Conduct and Investigations Unit | • Supporting the management of reports of discrimination promptly, fairly, impartially, sensitively and confidentially, in accordance with this Policy and associated procedures. | |
HR Advisory | • Responding to staff enquires relating to this Policy. | |
Organisational Development | • Conducting discrimination awareness and management briefing and / or training across Transport to raise staff awareness of their rights and responsibilities in relation to appropriate workplace behaviour and their obligations to prevent and eliminate inappropriate behaviour. | |
Each Transport agency is accountable for the implementation and monitoring of this Policy, for example ensuring systems are in place to:
• make this Policy available to all persons in the agency impacted by it;
• ensure that any individuals or organisations that must observe this Policy as a result of a contract or other agreement with the agency are advised; and
• monitor implementation.
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