Sakr v Sydney Trains
[2021] NSWPIC 69
•8 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sakr v Sydney Trains [2021] NSWPIC 69 |
| APPLICANT: | Ali Sakr |
| RESPONDENT: | Sydney Trains |
| MEMBER: | Ms Jane Peacock |
| DATE OF DECISION: | 8 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Applicant suffered undisputed psychological injury in course of his employment; dispute was whether applicant precluded from the recovery of compensation by reason of section 11A of the 1998 Act; dispute was whether the respondent’s actions in relation to performance appraisal or discipline or dismissal were reasonable; Held- actions of respondent were found to be reasonable; applicant precluded from the recovery of compensation; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application) Mr Ali Sakr (the applicant) seeks weekly compensation as a result of psychological injury.
The respondent is Sydney Trains (as per the amendment made at the telephone conference held in this matter). The respondent was insured at the relevant time for the purposes of workers compensation by Transport for NSW (the insurer).
The respondent denied liability for the claim.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffered a psychological injury within the meaning of the Workers Compensation Act 1987 (the 1987 Act). There is no dispute about the date of injury which was nominated in the Application to be 17 May 2020.
The dispute relates to section 11A of the 1987 Act, that is whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline and/or dismissal of the applicant.
There is no dispute that the employer’s actions in relation to discipline and/or performance appraisal and/or dismissal were the whole or predominant cause of the applicant’s psychological injury.
The real issue is whether the employer’s actions were reasonable.
The applicant amended his application by consent to claim weekly compensation for a closed period from 18 May 2020 to 12 October 2020.
The pre-injury average weekly earnings (PIAWE) is agreed at $1,641.44 per week.
There is no dispute that in the period for weekly compensation claimed the applicant had no capacity for work.
In the event the applicant is successful on the liability question, the parties agreed that an award for weekly compensation would be entered in the applicant’s favour, with the respondent to have credit for payments made, as follows:
(a) under section 36 from 18 May 2020 to 17 August 2020 at the rate of $1559.37 per week; and
(b) under section 37 from 18 August 2020 to 12 October 2020 at the rate of $1313.15 per week.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
It is noted that no further documents other than those set out below were pressed for admission by either party. The following documents were in evidence before the Commission being admitted by consent, and taken into account in making this determination:
For the applicant:
(a) Application and attached documents.
For the respondent:
(a) The Reply and attached documents. It is noted that the Tik Tok video, filmed by the applicant, which forms part of the Reply was uploaded separately from the Reply and is admitted into evidence by consent.
(b) Late documents filed 4 March 2021.
Oral evidence
The applicant did not seek leave to adduce further oral evidence.
Counsel for the respondent did not seek leave to cross-examine the applicant.
FINDINGS AND REASONS
There is no dispute that the applicant suffered a psychological injury on 17 May 2020.
The dispute concerns section 11A of the 1987 Act.
Section 11A provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the heads of discipline and/or performance appraisal and/or dismissal.
The respondent bears the onus of proof.
There is no dispute the employer’s action in relation to performance appraisal and/or discipline and/or dismissal were the whole or predominant cause of the applicant’s psychological injury.
The real issue is whether the employer’s action in relation to discipline and/or performance appraisal and/or dismissal were reasonable.
The respondent’s counsel submitted that the test of reasonableness is an objective one and the respondent acted as an employer with the objective of taking ”disciplinary action against the applicant for his conduct, which was in breach of policy and which may have had some criminal effect, but that was determined not to be the case or not pursued. The actions of the employer were fair, reasonable and proportionate”.
The applicant’s counsel submitted that I would not be able to be satisfied that the conduct of the respondent overall was reasonable. The applicant’s counsel submitted:
“It was not enough to simply approach him on the 28th after the meeting on the 8th, with no prior warning. It was not enough to then simply drop an email to the union delegate and say there was criminal proceedings. There is no objective basis on which you could find, respectfully, that that is reasonable conduct, particularly having regard to the authorities to which I have referred, and the weighing, because it’s not just the respondent, it’s a weighing of rights, and the worker as well.
And the worker, notwithstanding the offence - now, much has been made about the offence. Notwithstanding the offence, the worker is entitled at least to a reasonable process and to understanding of precisely how, why and what is being done. And it doesn’t occur here, and there’s insufficient information before you to make that determination that’s required anyway. So the applicant would say that the respondent does not discharge its onus, and you should find that the actions were not reasonable.”
If the defence under section 11A is made out this will preclude the applicant from recovery of compensation.
I must make a determination in this case on the evidence and in accordance with the law.
Both parties have referred me to various authorities. Counsel for the respondent referred to the case of Department of Education v Sinclair [2005] NSWCA 465. He also referred to the matter of Ritchie v The Department of Community Services [1998] at volume 16 NSWCCR, page 727, per Armitage J, “who stated at paragraph 39 what the relevant test was, and that is as I have just stated, that it’s got to be reasonable, and it’s not what the applicant or the respondent think.”
Counsel for the applicant referred to Commissioner of Police v Minahan [2003] NSWCA 239, an unreported decision in the matter of Ivanisevic v Laudet Pty Ltd of Foster AJA on 24 November 1998 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255. The applicant’s counsel submitted on these authorities as follows:
“In the Commissioner of Police v Minahan [2003] NSWCA 239 decision, the Court of Appeal considered the words “reasonable action” in section 11A and ultimately determined that the question of reasonableness was one of fact, displaying all relevant factors. The test is less demanding that the test of necessity, but more demanding than the test of convenience. The test of reasonableness was objective and must weigh the rights of employees and the objectives of an employer. Whether an action is reasonable should be attended in all the circumstances by a question of fairness.
Similarly in an unreported decision of Ivanisevic v Laudet Pty Limited of Foster AJA on 24 November 1998, it’s noted that when considering the question of reasonable action, the court is required to have regard not only to the end result but the manner in which it was effected.
And those thoughts and decisions have been picked up in numerous other presidential related decisions, Madam Member, of which I’m sure you’re aware. It was considered in Heggie [2013] NSWCA 255, where Sackville went through some of the authorities on that point, and noted that the test of reasonableness is objective - it’s not enough that the employer believed and could state that the action with respect with discipline could cause psychological injury was reasonable, nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of justice. It is, the court said, the reasonableness of the actions was in fact undertaken and must be assessed.”
It is clear that the test of whether the action of the employer was reasonable in response to the applicant’s misconduct is an objective one and will turn on the evidence in this case.
Turning now to an examination of the evidence in this case.
As the counsel for the applicant submitted the facts are “relatively straightforward”. He went onto submit:
“The applicant admits, it’s conceded, that he took a video. It’s conceded that that video was uploaded to TikTok and that that video came to the attention of his employer.”
This video was uploaded to the social media platforms known Tik Tok (this version is in evidence) and also snapchat. The Tik Tok video was able to be viewed by members of the public.
On 6 April 2020 a memorandum was issued by the respondent to all of it’s staff warning against posting on social media any content that could damage the reputation of the respondent or which is obscene or might bring the respondent into disrepute whilst identifiable as an employee of the respondent. Staff were warned that such inappropriate use may result in disciplinary action.
On the very next day, on 7 April 2020, the applicant posted a self taken video of himself in uniform whilst at work to the social media platforms known as snapchat and Tik Tok.
The Tik Tok video is in evidence. The self taken video of the applicant in uniform in the workplace while he is on shift (apparently in the control room at a train station) could reasonably be regarded as offensive, profane (the applicant swears repeatedly in the video laughingly saying “he is about to piss off his chinese workmate” entering the room where she was an using the words “fuck” and apparently calling her a “slut” and a “whore”) as well demeaning to his female co-worker (also in uniform) whom he films without her consent and identifies with the hashtag “Asian women” when he uploads the video. The video is uploaded to a social media platform which is available for view by the general public. The video could reasonably be regarded as one which could bring the respondent into disrepute and damage their reputation. In fact it came to the attention of the respondent because the video promptly elicited a complaint from a member of the public.
The applicant has admitted in his statement that he was aware the video was in breach of various workplace policies governing conduct including the use of social media.
A member of the public complained about the video to the social media officer Mr Shaun Moxham. This was brought to the attention of Ms Sue Close, the applicant’s immediate supervisor.
On 8 April 2020 Ms Sue Close convened a meeting with the applicant to discuss the video. She asked Mr Simon Lea to attend.
Ms Close gave evidence in her statement that the video was brought to her attention. She viewed the video and was “surprised” at its content.
Ms Close gave evidence that the applicant’s behaviour was in “breach of numerous policies for a number of reasons”:
“he was actually on duty as well as in the operations centre, works in an operational role and responsible for the safety and welfare of our customers. He is a team leader and Jenny actually reports to him. He is supposed to be setting an example yet he is the one out of step with about everything you can imagine in relation to our policies and procedures. He is even seen laughing into the phone and has no horizon on what he is doing except for his own self satisfaction.”
Mr Lea did not give evidence in a statement. However in the late evidence there is an email him to Ms Close setting out effectively his notes of what occurred at the meeting.
Counsel for the applicant pointed out that there is a factual dispute between what the applicant says occurred at the meeting and what Ms Close says occurred. He submitted:
“The real crux or genesis of much of the issue that arises in this case is the factual distinction that’s made between the applicant and Ms Close in her statement with respect to what took place in that meeting.”
Ms Close gave evidence that “I did say to him that it would need to referred elsewhere because of the breaches”. She gave evidence:
“I made it clear to him that the matter would be referred on and there was no suggestion the matter was closed. Ali was informed that it could have been recommend for a dismissal from Sydney Trains. He was also offered EAP and SDM Lee performed a welfare check to ensure he was fine to continue his shift.”
At the time of the meeting on 8 April 2020 the Tik Tok video was still online. The applicant was asked to remove it and he did so.
Mr Simon Lea who sat in on the meeting later emailed Ms Close with his summary of what had occurred. His email does not refer to the matter being referred on.
Counsel for the applicant says this email supports the applicant’s version of what occurred at the meeting.
Whether or not the applicant was told the matter was going to be referred on is one part of the evidence that has to be weighed in the balance with all of the other evidence to decide whether overall the respondent’s course of conduct was reasonable.
Here the applicant engaged in conduct on 7 April 2020 that occurred whilst on duty (when charged with the responsibility for supervision of the very staff member he filmed whilst in uniform and when charged with responsibility for passengers and customers of the respondent (he was in the control room and on shift). His immediate supervisor held a meeting with him about his conduct the next day on 8 April 2020. He was reminded about the respondent’s policies. He was asked to take the video down which he did. He was offered a support person and access to the EAP and a welfare check on him was conducted.
That the applicant’s misconduct was such that ongoing concerns were held by upper management and the matter did not end at that first meeting, when the applicant thought that it had, does not mean the respondent’s conduct was unreasonable. The entirety of the course of conduct by the respondent must be viewed objectively and a determination made about its reasonableness.
The applicant says that Ms Close told him on 28 April 2020 that senior management were appalled by the video that was posted and his conduct required escalation to a higher level.
Ms Close gave evidence as follows:
“On 29 April 2020 I have an entry that advises that he would have to attend a formal meeting in relation to the Tik Tok event. I have supplied a copy of the letter which was delivered by hand to him when he came to my office at my request when he signed on for duty. I did explain that he would be put in a PCIP. I did not give it to him at that point, although he did look at it. I explained that the first part of the PCIP was that was to complete the e-learning “code of conduct’ course online.”
On 15 May 2020 there was a formal meeting held with the applicant to discuss the conduct relating to the posting if the Tik Tok video. The applicant arranged for his union representative Mr Trent Hunter to attend the meeting with him. Ms Close gave evidence about this meeting as follows:
“On 15 May 2020 I met with RTBU Trent Hunter, CSTL Ali Sakr and SDM Rashed Habib which was a formal meeting discussion to formally discuss his conduct specifically around the video posted 7 April 2020. It was raised that CSTL Sakr be placed on a Step 3 PCIP for 6 months with a final warning. The RBTU raised concerns how this was already dealt with on April 8, where CSTL Sakr accepted responsibility. Ali was there with union rep Trent Hunter, SDM was there as my support and after initial welcomes we started to go through the letter and at that point Trent stopped the meeting. We didn’t even get through the PCIP. I had just finished introducing the reason for the meeting and the union stopped the meeting.”
It appears that the respondent was going to attempt to respond to the misconduct of the applicant by placing him on a performance management plan. This attempt was rebuffed by the applicant and his union representative seemingly on the basis that a meeting had been held with the applicant on 8 April 2020 when the applicant accepted responsibility for his conduct and that this represented, in their view, finalisation of the matter.
The applicant engaged in misconduct on 7 April 2020 when he filmed and then posted the Tik Tok video. He engaged in conduct that breached the respondent’s policies. He engaged in conduct that could reasonably be regarded as capable of bringing the respondent into disrepute and damaging their reputation and indeed the conduct was the subject of complaint from a member of the public. He engaged in conduct that could reasonably be regarded as demeaning to his female colleague. He engaged in conduct that could have potentially been the subject of criminal charges although it appears this was not pursued. There was a meeting held with the applicant on 8 April 2020 with his immediate supervisor in the immediate aftermath of the misconduct being brought to the respondent’s attention (by a member of the public) and at which time the video was still online and that first meeting resulted in the applicant taking down the video. The applicant took responsibility for his conduct. As much as an employee might desire that the first meeting in relation to his misconduct represents an end to the matter does not mean that any subsequent conduct of the respondent in response to the misconduct is rendered unreasonable. The applicant says he was led to believe that the meeting on 8 April 2020 was the end of the matter and that any subsequent attempt by the respondent to respond to his misconduct was unreasonable.
His claim form sets out his allegation that by raising his misconduct with him again twenty days later he was exposed to a form of “double jeopardy”.
This is echoed in the email from the union representative Trent Hunter to Ms Close on 20 May 2020 (after the meeting on 15 May 2020) wherein he writes:
“On 15 May 2020 myself, Mr Sakr, you and Mr Rashid Habib (SDM) met at Town Hall station in order to formally discuss his conduct specifically around the video posted on 7 April 2020. It was raised that Mr Sakr will be placed on a Step 3 PCIP for 6 months with a final warning. Concerns were raised about how this issue was already dealt with informally with a file note on 8 April 2020. We also advised that Mr Sakr during that informal discussion accepted responsibility and took the actions of deleting the video and the app Tik Tok.
It was advised that higher level management believed this matter required a formal discussion. Mr Sakr and I advised that this matter proposed was dealt with already on 8 April 2020. It was agreed at the meeting Mr Sakr and I had the weekend to think about Sydney Trains position.
The RBTU believes Sydney Trains position to place Mr Sakr on a step 3 PCIP with a final warning is unwarranted. This is because Sydney Trains had already dealt with this matter informally under the Performance and Conduct Improvement Policy in an informal discussion – step 1.
We believe it is harsh and unfair for Sydney train to deal with this matter informally and then 20 days later revisit the matter. By Sydney Trains doing this it has subjected Mr Sakr to a form of double jeopardy in relation to conduct which has been dealt with previously.
We ask Sydney Trains to reconsider their position and withdraw the proposed Step 3 PCIP and final warning. Could you please advise us Sydney trains position by COB Monday 25 May 2020.”
As a result of the rejection of the offer of a performance management plan, Ms Close sought further advice. On 25 May 2020 she emailed Mr Hunter to the effect that she had sought further advice and because of the potential criminality of the applicant’s conduct the performance management plan (referred to as a PCIP) could not be progressed. She gave evidence:
“what happened was as the Union wouldn’t proceed with the 15 May meeting, I referred the matter up and it ended up going to legal and when they looked at it, they said there could be some criminality.”
The applicant’s counsel submitted that the conduct of the respondent was unreasonable. The nub of the applicant’s complaint about the lack of reasonableness in the conduct of the respondent appears to lie in the fact that the applicant thought or could have reasonably concluded from the meeting on 8 April 2020 that his misconduct has been dealt with and the matter had been closed. Twenty days later he is told that the matter will be the subject of a further response from the respondent. Counsel for the applicant submitted that:
“Now, what in fact occurs is that he is subsequently pulled into a meeting on the 28th of April. So some 20 days later, without prior knowledge, without prior warning, without any indication that there was an ongoing investigation into the conduct or process, without any pre the 28th of April attempt to give some colour to the purported investigative process that was ongoing, he is instead on the 28th of April approached at 4.30am, and he is approaching the end of shift, and this appears at paragraph 50, page 8, ARD, and was told by Dwayne, the duty manager, that Sue wanted to speak to him, so he went to see her at approximately 4.45am, and at that time she states Sydney Trains senior management had seen the video, and he says, well, I deleted it, I don’t understand how, and she said that the senior management had seen it, and that they were looking into termination, but agreed to giving him a stage 3 PCIP. She said she would set a formal meeting, wanted to advise him of the situation, and sent him an email the next day with the date of the official meeting.
Now, the applicant at that stage, Madam Member, has spent some 20 days, almost three weeks, post the purported disciplinary meeting without any further information, and suddenly is pulled into a meeting with Sue in which he is told senior management is now looking at it, they were looking at termination, but now it’s a stage 3 PCIP. Now, this comes out of nowhere, from the perspective of the applicant, and there is no forewarning, there is no proper explanation, and he’s told that there’s going to be a further meeting that occurred thereafter.”
This is really the nub of the applicant’s complaint that the respondent’s conduct was not reasonable. He was also distressed at being told with no detail that criminal charges could be laid.
The determination of whether the respondent’s conduct was reasonable has to be made by having regard to the totality of the evidence.
When I weigh all of the evidence in the balance, I am satisfied on the balance of probabilities that the respondent’s conduct was reasonable in relation to its attempts to discipline the applicant over his clear misconduct which ultimately resulted in his dismissal. The fact that his immediate manager attempted to manage his misconduct informally on 8 April 2020 (the day after the Tik Tok video was posted) and when the respondent is effectively responding to a situation as it is happening (the video was still online and that meeting resulted in the applicant taking the post down) does not render any subsequent response by the respondent to the misconduct unreasonable. The applicant has made much of the fact that it was 20 days later that he was effectively alerted to the fact that there were ongoing concerns held by his employer about his conduct. He thought it had been finalised. He says he was led to believe it had been finalised. The test of whether the employers actions were reasonable is an objective one. The rights of both the employer and the employee must be taken into consideration. It is not just the rights of the employee that have to be considered. What must also be weighed in the balance is the right of the employer to respond to conduct of an employee that potentially places the public at risk (the applicant was on duty in the control room when instead of performing his duties he filmed himself for a social media post), conduct that demeans and degrades his female colleague whom he had the responsibility for supervision of, conduct that damages the reputation of the employer and brings them into disrepute When the gravity of the misconduct is taken into account I do not consider that what has been characterised as a delay of 20 days before the issue is raised with the applicant again is an undue “delay” or rendered the conduct of the respondent unfair or unreasonable. The applicant says he was given no warning and just pulled into the meeting. In fact Ms Close advised him on 28 April 2020 that senior management was “appalled” by his behaviour and a formal approach was required. That meeting was scheduled for 15 May 2020 at which meeting the applicant had the support of his union representative. He was offered a performance management pathway which was PCIP stage 3 with a final warning. This offer was rejected by him and the matter was escalated. He was informed criminal charges could be laid. He was distressed by this. Whether or not the matter could have resulted in criminal charges was a matter for the police. Responsibility for the behaviour of the applicant in committing a potentially criminal act is his own and not the respondent’s and there is no unreasonableness to be found in the respondent informing the applicant that his behaviour may potentially result in criminal charges. Ultimately the applicant was dismissed. Throughout the process the applicant was offered access to the EAP and welfare checks were attempted to be conducted. When I weigh all of the evidence in the balance and weigh the rights of the applicant to a fair process as well as the objective of the respondent in being able to respond to behaviour of one its employees that both brings the respondent into disrepute and demeans and publicly degrades a fellow worker, I am satisfied that the conduct of the respondent was in all the circumstances reasonable. As this was the only dispute that required my determination, and it was not in dispute that the psychological injury was wholly or predominantly caused by the action taken by the respondent in relation to discipline, dismissal or performance appraisal, this means the section 11A defence succeeds and there will be award for the respondent.
Jane Peacock
MEMBER
8 April 2021
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