Salama v Sydney Trains
[2021] FCA 251
•24 March 2021
FEDERAL COURT OF AUSTRALIA
Salama v Sydney Trains [2021] FCA 251
File number: NSD 1977 of 2017 Judgment of: BURLEY J Date of judgment: 24 March 2021 Catchwords: INDUSTRIAL LAW – adverse action – whether employee exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (“FW Act”) – where employee member and officer of industrial association under s 346 of the FW Act – whether adverse action taken because employee exercised workplace rights and/or was member and officer of industrial association – where decision-makers gave evidence regarding reasons adverse action was taken – whether employer discharged presumption imposed by s 361 of the FW Act – application dismissed
INDUSTRIAL LAW – alleged contravention of enterprise agreement contrary to s 50 of the FW Act – interpretation of enterprise agreements – whether employer denied employee rights under enterprise agreement – application dismissed
Legislation: Fair Work Act 2009 (Cth) ss 6, 12, 50 – 54, 340, 341, 342, 346, 347, 361, 789FC and 789FD
Federal Court Rules 2011 (Cth) r 7.23
Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500
City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; 153 IR 426
Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243
Construction Forestry Mining and Energy union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046
Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2019] FCA 2145
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014; 253 IR 166
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251
Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; 264 FCR 342
George v Rockett [1990] HCA 26; 170 CLR 104
Kucks v CSR Limited [1996] IRCA 141
Mr Joseph Salama v Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting [2018] FWC 1845
National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Red Cross v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332
Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; 242 IR 159
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1
Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46
Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 387 Date of last submissions: 15 April 2020 Date of hearing: 2 – 6 March 2020 Counsel for the Applicant: Mr R Moore Solicitor for the Applicant: Maxwell Berghouse & Ives Solicitors Counsel for the Respondents: Ms E Raper SC Solicitor for the Respondents: Bartier Perry Pty Limited ORDERS
NSD 1977 of 2017 BETWEEN: JOSEPH SALAMA
Applicant
AND: SYDNEY TRAINS
First Respondent
CHRIS WALSH
Second Respondent
ORDER MADE BY:
BURLEY J
DATE OF ORDER:
24 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The parties have liberty to apply within 7 days in the event that any consequential or other orders are sought.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
1.1 The issues and summary of conclusions
[7]
1.1.1 The adverse action claims
[7]
1.1.2 The Enterprise Agreement claims
[13]
1.1.3 Other issues
[15]
2 THE WITNESSES
[16]
2.1 The witnesses called by Mr Salama
[17]
2.2 The witnesses called by Sydney Trains
[40]
3 THE RELEVANT LAW
[76]
3.1 Legislative framework
[76]
3.2 Ascertaining whether adverse action was taken for a proscribed purpose
[86]
3.3 Ascertaining whether a person is exercising workplace rights
[98]
4 FINDINGS OF FACT AND CHRONOLOGY OF EVENTS
[106]
4.1 Mid-2016
[107]
4.2 Mr Salama’s attempts to procure a vote of no confidence in Mr Keech
[116]
4.3 The November meeting with Mr Robertson
[124]
4.4 The November 2016 mediation
[133]
4.5 January 2017
[134]
4.6 February 2017
[140]
4.7 April 2017
[148]
4.8 The uniform reimbursement dispute
[152]
4.9 The union rights dispute and the request issue
[165]
4.10 The stop bullying proceedings
[184]
4.11 Attempts to provide counselling to Mr Salama and the PCIP dispute
[191]
4.12 The field start issue
[217]
4.13 The “managers are fair game” email
[220]
4.14 The notification issue
[223]
4.15 Steps leading to the show cause letter
[226]
4.16 The show cause letter, its response and the letter of termination
[230]
5 THE WORKPLACE RIGHTS AND INDUSTRIAL ACTIVITY
[243]
5.1 Introduction
[243]
5.2 Workplace rights from role or responsibility as a union delegate (s 341(1)(a))
[252]
5.2.1 The Robertson 3 November 2016 meeting
[252]
5.3 Workplace rights to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b))
[264]
5.3.1 The DSP processes
[264]
5.3.1.1 The field start issue 25 June 2017
[274]
5.3.1.2 The request issue/union rights dispute
[276]
5.3.1.3 The PCIP dispute
[279]
5.3.2 The stop bullying proceedings
[281]
5.4 Workplace rights in respect of “complaints and inquiries” (s 341(1)(c)(ii))
[293]
5.5 Fact of membership and office with RTBU (s 346(a))
[302]
6 THE REASONS FOR THE ADVERSE ACTION
[303]
6.1 The decision-makers
[303]
6.2 Why was the adverse action taken?
[308]
6.2.1 The submissions
[308]
6.2.2 The stated reasons for the decisions
[317]
6.2.3 The evidence of Mr Walsh
[320]
6.2.4 The evidence of Mr Kable
[356]
6.3 Conclusions in relation to the reason for the decisions
[359]
7 ALLEGED CONTRAVENTION OF THE ENTERPRISE AGREEMENT
[366]
7.1 Introduction
[366]
7.2 Consideration of the alleged breaches of cl 8 of the Enterprise Agreement
[371]
7.3 Consideration of the alleged breaches of cl 38 of the Enterprise Agreement
[379]
8 DISPOSITION
[386]
BURLEY J:
1. INTRODUCTION
The applicant, Joseph Salama, was employed as a Transport Officer by the first respondent, Sydney Trains, from 28 August 2013 until 14 August 2017. On 24 July 2017, he was sent a show cause letter by the second respondent, Christopher Walsh, asking him to make submissions in response to allegations that his conduct may warrant the termination of his employment pursuant to the Performance and Conduct Improvement Procedure (Performance Improvement Procedure) applying to Sydney Trains personnel employed under the Sydney Trains Enterprise Agreement 2014. Pending his response, the show cause letter informed Mr Salama that he was suspended with pay, with immediate effect. Mr Salama’s lawyers responded to the letter on 31 July 2017. On 14 August 2017, he was dismissed.
Mr Salama alleges in these proceedings that by suspending him from his employment, advising him that he was required to show cause, threatening to dismiss him and then dismissing him (the impugned actions), Sydney Trains took adverse action against him in breach of ss 340 and 346 of the Fair Work Act 2009 (Cth) (FW Act). Mr Salama also contends that Sydney Trains acted in contravention of the Enterprise Agreement in breach of s 50 of the FW Act. He also alleges that Mr Walsh was a person involved in the pleaded contraventions by Sydney Trains within the meaning of s 550(2) of the FW Act. As a consequence, Mr Salama seeks declarations of contravention, orders for reinstatement pursuant to s 545(2)(c) of the FW Act, compensation for any losses arising out of the contraventions and orders imposing penalties on the respondents in respect of the contraventions.
Sydney Trains and Mr Walsh (whom I refer to collectively as Sydney Trains unless otherwise indicated) accept that they took the impugned actions, but dispute that in so doing they acted in breach of any of the provisions of the FW Act. They also deny acting in breach of the Enterprise Agreement and contest the right of Mr Salama to bring the proceedings against Mr Walsh.
The hearing was conducted in early March 2020, during which oral evidence of a number of witnesses was heard. Before closing submissions, the outbreak of the COVID-19 pandemic led to a disruption of in-person hearings in the court. However, the parties agreed that closing submissions could take place on the papers, and both parties filed, in lieu of oral closing submissions, extensive written submissions.
In order to explain the factual matrix relevant to the numerous factual issues in dispute, it has been necessary to set out in some detail a chronology of events, which I do in section 4 below, after first summarising some of the evidence of the witnesses and setting out the relevant law.
For the reasons developed in more detail below, I find that Mr Salama’s application must be dismissed.
1.1 The issues and summary of conclusions
1.1.1The adverse action claims
Mr Salama contends that his exercise, or purported exercise, of workplace rights was the, or a, substantial and operative factor for the taking of the adverse action. On this basis he contends that Sydney Trains took the adverse action in breach of s 340 of the FW Act. He further contends that Sydney Trains breached s 346(a) of the FW Act, alleging that the fact of his status as an officer or member of an industrial association, namely the Rail Tram and Bus Union (RTBU), was a substantial and operative factor in the decision to take the adverse action.
Sydney Trains disputes this, and contends that the adverse action was taken for the reasons in the show cause letter (summarised in section 4.16 below), which sets out a series of allegations said to demonstrate that he was failing to:
·maintain suitable interpersonal skills and communications to allow for effective, fair and respectful working relationships;
·listen and follow reasonable instructions issued by his managers, without constantly challenging and arguing with decisions conveyed to him; and
·constructively receive feedback on work performance and participate in performance review meetings.
It relies on the evidence of the decision-makers, Mr Walsh and his superior, Gavin Kable, to support this contention.
It should be noted that for it to be determined whether adverse action was taken because workplace rights were exercised in breach of s 340, those workplace rights must be identified with some clarity. The amended statement of claim does not well or clearly plead what Mr Salama contends were his relevant workplace rights. One reason for this is because he purports to rely generally on “the material within the affidavits filed in the Proceedings” including, but not limited to, certain particularised events. However, by the time of the final hearing Sydney Trains had extracted some clarity from Mr Salama as to his position by obtaining further particulars. In addition, an agreed List of Issues, heavily footnoted to the pleadings and particulars, provides guidance as to the scope of the case relied upon. Even so, identifying precisely how Mr Salama put his case has presented a challenge.
Mr Salama relies on the following three forms of “workplace right”, as defined by s 341, protected by s 340(1) of the FW Act (the terms in bold are defined later in these reasons):
(1)Section 341(1)(a): his role under a workplace instrument. In this connection, Mr Salama contends that he was recognised as a delegate under cl 38 of the Enterprise Agreement – a workplace instrument – and had responsibilities as a delegate including under cl 8 in relation to the Disputes Settlement Procedure (DSP). He submits that he had an entitlement to discharge this role under s 341(1)(a) of the FW Act in relation to the two disputes identified in more detail below as the Robertson 3 November 2016 meeting and the union rights dispute;
(2)Section 341(1)(c)(ii): his ability to make complaints or inquiries in relation to his employment. In this regard, Mr Salama contends that in initiating the field start issue, request issue and notification issue he had the benefit of a workplace right within s 341(1)(c)(ii) of the FW Act; and
(3)Section 341(1)(b): his ability to initiate or participate in processes or proceedings under a workplace law or workplace instrument. In this regard, Mr Salama contends that when he took actions with respect to various disputes commenced under the DSP under cl 8 of the Enterprise Agreement (being the field start issue, the request issue and the PCIP dispute), the stop bullying proceedings and his participation in a conciliation and conference in the FWC, he had the benefit of a workplace right pursuant to s 341(1)(b) of the FW Act.
Sydney Trains accepts that the impugned actions constituted adverse action within the FW Act. However, it submits that neither Sydney Trains nor Mr Walsh are liable for three broad reasons. First, because Mr Salama was not exercising workplace rights within s 341(1). Secondly, because even if the matters referred to in the show cause letter constituted an exercise of workplace rights, Mr Walsh and Mr Kable believed that they did not. Thirdly, irrespective of whether or not Mr Salama had exercised workplace rights or was a union delegate, or whether Mr Walsh and Mr Kable believed either of these facts, the court can be satisfied that the fact of Mr Salama exercising such a right or being a union delegate was not a reason for the adverse action.
In addition to the s 340 claims, Mr Salama also contends that Sydney Trains took the adverse action against him contrary to s 346(a) because he was an officer or member of an industrial association. Sydney Trains disputes this and contends that the fact of Mr Salama’s status as an officer or member of the RTBU was not a reason that the adverse action was taken.
1.1.2The Enterprise Agreement claims
The cause of action pleaded under s 50 of the FW Act concerns whether or not Sydney Trains contravened terms of the Enterprise Agreement. Mr Salama contends that it contravened cl 8 of the Enterprise Agreement (the DSP) by failing to apply its terms in relation to: first, the union rights dispute initiated on 18 May 2017; and secondly, his complaint made on 21 June 2017 about the attempt by Sydney Trains to place him on a performance, conduct and improvement plan (the PCIP dispute).
Mr Salama next contends that Sydney Trains contravened cl 38 of the Enterprise Agreement in relation to: first, his participation in the Robertson 3 November 2016 meeting as a “support person” for James Robertson; and secondly, in relation to the union rights dispute.
1.1.3Other issues
Having regard to my conclusions in relation to the primary claims advanced by Mr Salama, it has been unnecessary for me to consider and determine other issues arising on the pleadings. Those are: (1) whether the Court has jurisdiction with respect to the claim against Mr Walsh under s 550 of the FW Act given that he was not a party to the application made to the Fair Work Commission under s 365 of the FW Act and thereafter not a party to the dispute which was conciliated before the Fair Work Commission upon which the certificate issued under s 368; (2) whether or not Mr Walsh was involved in one or more of the contraventions by Sydney Trains of either ss 340 or 346; and (3) whether or not final orders under s 545 should be made.
2. THE WITNESSES
The affidavit evidence addresses numerous incidents and confrontations involving Mr Salama and Sydney Trains personnel. The details of many are set out in contemporaneous emails and file notes prepared by the main protagonists identified in this section, and the closing submissions disclosed little in the way of disputed fact as to what occurred, and when. Generally, I found that the witnesses did their best to give their version of events truthfully. Where I have reservations as to the credibility of a witness, it is expressed in the sections that follow.
2.1 The witnesses called by Mr Salama
Joseph Salama provided four affidavits in the proceedings and was cross-examined. His written evidence is detailed and provides a fusion of editorial comment, submission, argument and evidence. It includes detailed reference to conversations and also exhibits numerous email chains and letters. Many of the matters to which Mr Salama refers concern disputes that he had with management personnel within Sydney Trains beginning in about April 2016, most of which were the subject of email correspondence which he, or other witnesses, exhibit to their evidence. I summarise aspects of his evidence below, insofar as it is appropriate to introduce elements relevant to the case advanced by him in closing submissions.
Mr Salama presented as an intelligent and articulate witness who had a detailed understanding of his case and the forensic issues involved in it. At times he demonstrated a propensity to tailor his evidence to suit what he perceived to be the forensic advantage of his interests in the proceedings. This has caused me to be cautious about accepting aspects of his evidence unless they are supported by corroborating material.
In his first affidavit dated 23 November 2018, Mr Salama gives evidence that his employment with Sydney Trains as a Transport Officer in the Fare Compliance Unit (FCU) commenced on 16 August 2013 and ceased on 14 August 2017. In about September 2013, he became a member of the RTBU. In about March 2014, he became a union delegate. On 21 April 2017, he was appointed as a health and safety representative (HSR) within the FCU. He gives evidence that in his position as Transport Officer he was principally required to issue infringement notices and act with NSW Police in relation to combined operations. He gives evidence that he worked from the Redfern office of Sydney Trains and reported to several team leaders from time to time whose tasks included to assess his performance and create a Performance Development Plan (or PDP) for him. He gives evidence that his performance rating, assessed on a scale of 1 to 5, never dropped below a “3” which designated that he was a “solid performer”.
Mr Salama refers to a performance review conducted by Charlie Keech in July 2016, who was then his supervising Senior Transport Officer. Mr Keech gave Mr Salama a “3” in his performance assessment. Mr Salama refused to sign the assessment on the basis that he considered it gave insufficient recognition of his performance. Mr Salama then made a complaint on 19 August 2016 regarding Mr Keech’s appraisal to the workplace conduct and investigation unit (WCIU) of Transport for New South Wales. Mr Salama gives evidence that he met with Ms McKendry on 31 August 2016, who was his Team Manager at the time, and asked to be moved to a different team. This request was refused. On 8 September 2016, he lodged a further written complaint to the WCIU concerning Mr Keech.
Mr Salama refers to an objection that he made on 14 September 2016 to Laurence (Tony) New about a decision to place Mr Keech in an acting team manager’s role. Mr New was at the time Manager of Fare Compliance, and the person to whom Ms McKendry reported. In the email, Mr Salama criticised the decision and suggested that it be reconsidered as “it may be viewed as one of a corrupt nature and would then leave me no choice but to refer the matter to ICAC”. He also refers to a complaint that was made to the WCIU about Mr Salama on 16 September 2016, which identified that the WCIU had been asked to investigate allegations that Mr Salama was engaged in bullying and harassment of work colleagues. He also refers to another WCIU complaint initiated by him regarding a letter he received from Mr New concerning attempts made by Mr Salama to rally a vote of no confidence in Mr Keech. Further reference is made to these events in the chronology in section 4 below.
Mr Salama gives evidence that on 3 November 2016 he attended a meeting with Mr Robertson, Ms Sweeting and Ms McKendry (the Robertson 3 November 2016 meeting). He considered that Ms Sweeting spoke inappropriately at the meeting and on 4 November 2016 filed a grievance with the WCIU. On 8 February 2017 he was notified in a letter from Brendon Gillies, Principal Manager of Workplace Conduct and Performance of Transport for NSW that, after conducting investigations, it was determined there was a difference in opinion between Mr Salama and Ms Sweeting regarding his role as a support person in the meeting which resulted in a breakdown in communication and a heated conversation. However, no indication of inappropriate action by Ms Sweeting was found to be established and the allegations were considered to be unsubstantiated.
Mr Salama gives evidence that on 11 November 2016 he received a letter dated 4 November 2016 from Mr New, Manager of Fare Compliance, concerning the Robertson 3 November 2016 meeting. In it Mr New clarified the role of a “support person” under Sydney Trains’ policies where a “Step 2 Attendance Management discussion” is held. This prompted Mr Salama on 14 November 2016 to lodge a complaint with the WCIU concerning this letter, cross-referencing his earlier complaint concerning Ms Sweeting, and stating that he believed that Sydney Trains management may be seeking adverse action towards him for filing the complaint.
Mr Salama also gives evidence that he received a letter from Mr New dated 16 November 2016 concerning allegations that he had made unsolicited telephone calls (on 2 September 2016) seeking support from other staff members to place a vote of no confidence with respect to Mr Keech. Mr New referred to “Section 2.1 of the Prevention and Management of Bullying and Harassment Policy” and recorded that the allegations were referred to the WCIU who considered that, while his actions did not constitute bullying, his behaviour was considered to be unreasonable and it was recommended that he be counselled about the incident. Mr Salama gives evidence that he sent a further email to WCIU alleging that Mr New’s further letter amounted to “maladministration, intimidation and adverse action”. He attaches a response dated 29 November 2016 in which Mr Powell, a senior consultant within the WCIU, confirmed that investigations supported the allegation (raised by Mr New) that Mr Salama had made the alleged unsolicited calls, and repeated the findings summarised in Mr New’s letter. Mr Salama exhibits an email from him to Mr Powell refuting the allegations and asking him to confirm that his grievance against Mr New “remains open”. Mr Salama gives evidence that when he was informed that the investigation was closed, he sent some five further emails to the WCIU protesting the matter, before he let the matter drop.
Mr Salama in his evidence addresses the context of a January 2017 meeting with Ms Hole to which reference is made in the 7 June 2017 letter (set out in more detail in section 4.11 below) and the informal counselling sessions to which it refers.
Mr Salama gives evidence of a further complaint that he made on 5 May 2017 to Ms Francisco, by then his supervisor, about the conduct of Mr Keech. This complaint concerned the lodgement of a form seeking reimbursement of $28 that Mr Salama had spent on uniform alterations (the uniform reimbursement dispute, see section 4.8 below). On 11 May 2017, at Mr Salama’s request, Ms Francisco referred the complaint to the WCIU. On 17 May 2017, Mr Salama was advised by the WCIU that the matter was not of sufficient seriousness to require further action and, as the matter had been resolved within the business, no further action was required by the WCIU.
Mr Salama also gives evidence that on 18 May 2017 he was invited to a first formal counselling session with Ms Francisco concerning this dispute, to which further reference is made in the chronology (see section 4.11 below).
Mr Salama gives evidence that on 21 May 2017 he initiated the stop bullying proceedings by making an application to the Fair Work Commission, a copy of which he exhibits. These proceedings are further addressed in the chronology in section 4.10. Mr Salama gives evidence that he commenced the stop bullying proceedings pre-emptively, to stop an evolving process seeking to force him from his employment at Sydney Trains due to his role as a union delegate and employee’s representative.
Mr Salama gives evidence that following this on 25 May 2017, Mr Skundric, another RTBU delegate, initiated correspondence with Mr Walsh concerning attempts made by Ms Francisco to oblige Mr Salama to attend formal counselling as part of the Performance Improvement Procedure.
Mr Salama gives evidence of a conversation held at a formal counselling session on 26 May 2017 which he attended together with Mr Skundric as his support person, and Damien Kane and Ms Francisco. A further meeting was held on 1 June 2017, attended by the same people with the exception of Lizanne Bennett who replaced Mr Skundric. Mr Salama gives evidence that at both meetings he disputed that either was a “formal” session. He gives further evidence that at the conclusion of the 1 June 2017 meeting Ms Francisco said that she would be drafting a Performance Conduct and Improvement Plan (PCIP) to give to him. A further meeting was held on 20 June 2017 at which Ms Francisco gave Mr Salama the 7 June 2017 letter referred to in more detail in the chronology in section 4.11 below.
Mr Salama records that on 24 July 2017 he received the show cause letter.
Mr Salama gives evidence that after receiving the show cause letter he retained Michael Vassili, solicitors, to send a response to which reference is made in section 4.16. During the course of his cross-examination, Mr Salama gave evidence to the effect that his lawyers had sent that response without his instructions. Nowhere in his written evidence did Mr Salama allude to this, and I reject it as incredible. I do not accept that the letter was sent without his instructions and consider this aspect of Mr Salama’s evidence to demonstrate a willingness on his part to tailor his evidence to meet what he considered to be in the interests of his own case.
Mr Salama also refers to the letter of termination dated 14 August 2017, which was given to him at a meeting attended by Mr Walsh, Jasmin Streimer (a senior workplace relations consultant) and Ms Bennett from the RTBU.
Mr Salama gives evidence that on 11 April 2018 the Fair Work Commission gave its decision in the stop bullying proceedings, which indicated that because Mr Salama had been dismissed from his employment the proceedings should be struck out: Mr Joseph Salama v Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting [2018] FWC 1845 at [53]. The proceedings were not determined on their merits: [49].
Mr Salama concludes his first affidavit by giving evidence concerning his claims for relief.
In his second affidavit, dated 15 March 2019, Mr Salama provides a detailed, paragraph-by-paragraph, response to the affidavit evidence of Mr Keech, Ms McKendry, Mr New, Ms Francisco, Mr Gillies, Mr Walsh and Mr Kable. In his third affidavit, dated 28 November 2019, Mr Salama provides a similarly detailed response to the evidence of Ms Streimer, a further affidavit from Mr New and a further affidavit from Mr Walsh.
In his fourth affidavit, dated 19 February 2020, Mr Salama provides updated evidence concerning his earnings history and identifies further attempts that he has made since the date of his first affidavit to secure paid employment.
Andrew Skundric is an employee of Sydney Trains who has been employed as a Transport Officer in the FCU since 2013. Throughout his employment he has been a member of the RTBU, and in 2015 became a union delegate. Mr Skundric gives evidence that in this role he performed his union duties in association with Mr Salama. He gives evidence in answer to affidavits supplied by Mr New and Ms Francisco.
Mr Skundric gave one affidavit and was not cross-examined. A further affidavit sworn by Mr Skundric was not read by Mr Salama.
2.2 The witnesses called by Sydney Trains
Kristen Anne McKendry was appointed to the position of Customer Area Manager with Sydney Trains in July 2017. Prior to that she was employed by Sydney Trains from May 2015 as Transport Team Manager – Fare Compliance. In her role as Transport Team Manager (TTM) she had responsibility for about five teams of five or six people, including Mr Salama, who always worked in her team along with Mr Robertson, David Spicer and Mr Keech. She gives evidence that, in early 2016, Mr Keech and Mr Salama both applied for an acting role as a TTM, however the role was given to Mr Keech. Ms McKendry gives evidence that Mr Salama and Mr Keech worked well together and were productive until about August 2016, after Mr Keech gave Mr Salama a “3” rating in his July 2016 PDP. Mr Salama refused to agree to the grading and would not sign it. After that, she found that Mr Salama raised concerns and made complaints about Mr Keech which he had not done previously.
Ms McKendry’s evidence includes reference to a number of disputes involving Mr Salama and complaints that he made in relation to the conduct of Mr Keech during the course of 2016, to which further reference is made in the chronology in section 4.
Ms McKendry also responds to Mr Salama’s evidence that the mediation conducted by Ms Hole was “part of an orchestrated process that had now been commenced within Sydney Trains to try and force [him] out of [his] then employment, and [his role] as a Union delegate”, denying that it was so.
Ms McKendry gave one affidavit and was cross-examined.
Charlie Owen Edward Keech is employed by Sydney Trains as a Transport Team Manager, Customer Service. He commenced his employment with Sydney Trains in 2003 and was appointed a Senior Transport Officer in 2015 in Team 5B. At that time, Mr Salama was a member of that team. Mr Keech reported to the TTM who reported to the Manager of the Fare Compliance Unit.
Mr Keech gives evidence that each day, he would receive a daily deployment from his TTM, which determined the mode of transport his team was to patrol (trains, ferries, buses or light rail), and it was his role to organise the team to complete the deployment. From around 2016 he occasionally acted in the role of TTM.
Mr Keech responds to allegations about him made in the evidence of Mr Salama. He also refers to becoming aware in September 2016 that Mr Salama was rallying other team members to lodge a vote of no confidence in him as the workplace health and safety representative for his team. Mr Keech found Mr Salama’s behaviour to be upsetting, and complained about that conduct to Mr New on 13 September 2016. He also refers to a mediation conducted by Ms Hole on 18 November 2016 which he understood to have been arranged to resolve an earlier grievance that he had with Mr Salama in relation to rostering arrangements.
Mr Keech also gives evidence responding to the allegations made by Mr Salama in the stop bullying proceedings.
Mr Keech gave one affidavit and was cross-examined.
Amba Francisco is employed by Sydney Trains in the role of Crew Manager, Penrith. From 1 June 2015 until 13 January 2019 she worked in the role of Transport Team Manager, which involved overseeing the day to day leadership and operational management of a geographically disbursed team of Transport Officers, in her case being six sub-teams across NSW, including Sydney City, Blacktown, Wyong and Wollongong. Ms Francisco describes the role of Transport Officer as being to patrol the Sydney Trains network to monitor and enforce fare compliance while providing customer service to the public. It is a role which she considers requires excellent communication skills.
Ms Francisco gives evidence that in about December 2016 she began managing Mr Salama when his team was transferred to her supervision and he became one of some thirty team members who she managed. She was at that time aware that Mr Salama had attended a mediation with Mr Keech, Mr Spicer, Mr Robertson and an external mediator in November 2016, the purpose of which, she understood, was to enable the participants to understand how to work together moving forward following unsubstantiated allegations being made by Mr Salama against Mr Keech.
Ms Francisco sets out, in some detail, a description of the context and the content of numerous communications that she had with Mr Salama in the period from January 2017 until July 2017, exhibiting the correspondence and her file notes.
Ms Francisco also exhibits an email that she wrote on 26 June 2017 addressed to Rachel Miller, Legal Counsel for Sydney Trains, entitled “Managers are fair game – when does it end?” (the “managers are fair game” email). In it she said, in summary, that she wanted to outline how she was currently feeling. She regarded herself to be a victim of a systematic attack by Mr Salama in which every time that a decision was made with which he disagreed, he either lodged a complaint claiming bullying, sought investigation through an independent body or challenged it until he got what he wanted. She said that she regarded herself as “fair game” in his eyes, and referred to the stress caused by managing Mr Salama and her concern about the management time taken up in having to respond to his various demands.
Ms Francisco concludes her evidence by stating that she has never had to work with or manage a more combative or argumentative colleague or employee than Mr Salama and that if he were reinstated as an employee and she were required to work with him again, she would feel let down, and strongly consider leaving Sydney Trains.
Ms Francisco gave one affidavit and was cross-examined.
Laurence Anthony (“Tony”) New is employed by Sydney Trains as the Manager of Fare Compliance. In his first affidavit, he gives evidence that on 2 February 2015, he began work as the second in charge at fare compliance until being promoted to his present position in July 2016. In his current role, Mr New oversees the business operations of fare compliance and has overall responsibility for 224 people, including seven managers. He gives evidence that Ms McKendry was Mr Salama’s manager until early 2017 when Ms Francisco became his manager. Both reported to Mr New. From late 2016, Mr Walsh became Mr New’s direct supervisor.
Mr New gives evidence that ordinarily in his role he would not have direct dealings with a person in the position of Mr Salama. However, because of Mr Salama’s attitude and behaviour, he was required to, which took a toll on him. He gives evidence that in the period between August 2016 and August 2017 he estimates that he spent at least an hour each day dealing with matters related to Mr Salama. Mr New relevantly gives evidence about:
(a)Mr Salama rallying support to lodge a vote of “no confidence” against Mr Keech in September 2016;
(b)Mr Salama’s conduct during the Robertson 3 November 2016 meeting;
(c)Mr Salama’s stop bullying proceedings lodged on 21 May 2017;
(d)the “managers are fair game” email sent by Ms Francisco and copied to him on 26 June 2017; and
(e)his conversation with Mr Walsh about that email.
Mr New also gives evidence that if Mr Salama were to be reinstated he would either request an immediate transfer so that he would not have any interaction with him, or resign from Sydney Trains. He gives evidence that Mr Salama’s conduct took an emotional toll on him and that he has never come across anyone like Mr Salama, whom he considers impossible to reason with, in his working life.
In his second affidavit, Mr New responds to the affidavit of Mr Salama sworn on 15 March 2019 and the affidavit of Mr Skundric. In it, he addresses further matters including in relation to: the Robertson 3 November 2016 meeting; the union rights dispute that arose from the emails between Mr Salama and Ms Francisco between 17 May 2017 and 22 May 2017; and the field start issue set out in the email chain from 19 June 2017 until 25 June 2017 and picked up by Mr New when Mr Salama notified him of it on 25 June 2017.
Mr New was cross-examined.
Christopher Walsh is a deputy executive director of Sydney Trains and the second respondent. He has been identified by Mr Salama in these proceedings as the person who made the decision to issue the show cause letter and to suspend him from work. He is alleged to have been the decision-maker, or a decision-maker, together with Mr Kable in relation to the decision to terminate Mr Salama’s employment. He provided two affidavits.
In his first affidavit, dated 20 February 2019, Mr Walsh gives evidence that he commenced his employment with Sydney Trains in May 2013 as a stations customer manager for the Wynyard Group and in late 2016 was appointed to his current role. In this role, he has responsibility for 111 stations on the Sydney Trains network, comprising about 720 staff, and the FCU, which comprises approximately 230 staff including Transport Officers, taking the total employees under his supervision to about 950. He gives evidence that he has ten direct reports, including Mr New, the manager of the FCU.
Mr Walsh gives evidence that Mr Salama’s direct manager was Ms Francisco, who reported to Mr New. Although he had no direct working relationship with Mr Salama, by virtue of his position, he ultimately made the decision to suspend him from his employment and to issue the show cause letter. He gives evidence that shortly after commencing in his position he was aware that: there were challenging relationships within Team 5B, of which Mr Salama was a member; that a mediation had been conducted by an external mediator; and a letter was sent by Ms Hole to the team, concerning the need for members of the team to maintain suitable interpersonal communications. He gives evidence that he was authorised to issue the letter of termination by Mr Kable, in accordance with the section 8.1.2 of the Performance Improvement Procedure. He gives evidence that the reasons for the termination of Mr Salama’s employment are set out in the show cause letter.
Mr Walsh gives evidence of his knowledge of Mr Salama’s past conduct, his receipt of the “managers are fair game” email from Ms Francisco which was sent to him by Mr New on 27 June 2017, which he describes as the catalyst for the show cause letter. He gives evidence that the receipt of that email caused him to be concerned about the safety and welfare of Ms Francisco, whom he had known for a number of years and considered to be a resilient and fair person. He gives evidence of a meeting he had with Mr New on 19 July 2017, after he returned from annual leave, and determining on that date that action was required, including suspending Mr Salama from his employment. He exhibits a file note prepared soon after that meeting. Mr Walsh gives evidence that he met with Mr Salama on 24 July 2017 and provided him the show cause letter. He then identifies what he considers to be the basis for the numbered paragraphs in the show cause letter (see section 4.16). He also gives evidence concerning the 31 July 2017 response to the show cause letter received from the solicitors representing Mr Salama which, in his view, reflected a failure on the part of Mr Salama to show any insight or reflection going to the concerns raised in the letter. He formed the view that there was an irretrievable breakdown in the relationship and prepared a briefing note for Mr Kable recommending the termination of Mr Salama’s employment, which he exhibits. He then responds to the allegations made in the statement of claim and in Mr Salama’s first affidavit. He concludes with the following:
The applicant is the most difficult employee I have ever had to manage. I found him to be extraordinarily stubborn and unrelenting in his unfair and disrespectful behaviour. It was and remains my belief that he causes significant risk to the safety and wellbeing of those he works with.
In his second affidavit, dated 7 November 2019, Mr Walsh responds to allegations by Mr Salama concerning the union rights dispute.
Mr Walsh was cross-examined.
Gavin Richard Kable was employed by Sydney Trains in the position of Executive Director People & Communications from 7 October 2014 until 13 April 2018. He is no longer employed by Sydney Trains.
In his first affidavit, dated 18 February 2019, he gives evidence that according to Sydney Trains’ Performance Improvement Procedure, he had delegated authority to approve the dismissal of Sydney Trains employees for failure to meet the required performance standards where they did not demonstrate the required level of competence or suitability for their substantive position after undertaking a remedial program. He had no direct dealings with Mr Salama while he was employed by Sydney Trains. Mr Kable exhibits a briefing note, provided to him by Mr Walsh on 7 August 2017, seeking his approval to terminate Mr Salama in accordance with clause 8.1.2 of the Performance Improvement Procedure.
Mr Kable denies, as alleged in the statement of claim, that the reason Mr Salama was terminated was because he had, or exercised, workplace rights. His gives evidence that the reasons for Mr Salama’s termination are set out in the briefing note; namely, that after remedial action and steps to improve his behaviour were taken, he failed to demonstrate the required level of competence and suitability for his position.
In his second affidavit, dated 7 November 2019, Mr Kable denies that Sydney Trains took adverse action against Mr Salama for the reasons set out in the statement of claim (amended after Mr Kable gave his first affidavit), and reiterates the reasons for Mr Salama’s termination outlined in his first affidavit.
Mr Kable was cross-examined.
Jasmin Nicole Streimer was employed by Sydney Trains as the Principal Manager – Workplace Relations from 21 November 2016 until she swore her affidavit. In her affidavit dated 4 November 2019, she refers to the union rights dispute said to be in breach of cl 38 of the Enterprise Agreement and Mr Salama’s notification of a “Step 2” dispute on 23 May 2017. She also refers to the dispute in relation to the PCIP, arising out of the notification by Mr Salama of a “Step 1” dispute on 21 June 2017 on the basis of an alleged breach of cl 8 of the Enterprise Agreement. She also responds to other factual matters arising from the 15 March 2019 affidavit of Mr Salama and the affidavit of Mr Skundric.
Ms Streimer was cross-examined.
Brendon Paul Gillies has since early January 2018 been the Principal Manager of the Professional Conduct Unit within Group Rail, which consists of NSW Trains and the first respondent, Sydney Trains. From early 2015, Mr Gillies was employed by Transport for NSW as the Principal Manager Workplace Conduct and Performance in the Workplace Conduct and Investigations Unit (the WCIU) and, although not being employed by Sydney Trains, was ultimately responsible for all investigations within that organisation that related to workplace performance and conduct. In that role he was responsible for the triaging of grievances and alleged misconduct raised regarding employees, overseeing investigations in relation to those grievances and implementing alternative dispute resolution process and training for managers regarding employee behaviour.
Mr Gillies gives evidence about the following four complaints made by Mr Salama, and one complaint made about him, that were considered by the WCIU, annexing relevant documents within the files:
(a)A complaint lodged by Mr Salama against Mr Keech on 19 August 2016 concerning alleged harassment and bullying by Mr Keech in relation to changed rostering arrangements, his award of a “3” PDP ranking and other matters. Mr Gillies notified Mr Salama that these were matters concerning day to day operations that should be discussed with line managers and were not for the WCIU;
(b)A complaint lodged by Mr Keech in mid-September 2016 concerning Mr Salama’s attempt to rally a vote of no confidence in him. This is addressed further in the chronology in section 4.2;
(c)A complaint lodged by Mr Salama against Mr New concerning Mr New’s letter of 4 November 2016;
(d)A complaint lodged by Mr Salama against Ms Sweeting on 4 November 2016 alleging bullying and harassment of him at the Robertson 3 November 2016 meeting; and
(e)A complaint lodged on 11 May 2017 by Ms Francisco at the request of Mr Salama complaining about the conduct of Mr Keech for failing to follow procedure in the context of the uniform reimbursement dispute, which was dismissed on the basis that no breach of policy or procedure was found to have occurred.
Mr Gillies was not cross-examined.
3. THE RELEVANT LAW
3.1 Legislative framework
Chapter 3 of the FW Act sets out rights and responsibilities of national system employers and employees. Part 3-1 of Chapter 3, in which ss 334 to 378 fall, provides general workplace protections of workplace rights, freedom of association and involvement in lawful industrial activities and other protections: FW Act s 6(2).
It is not in dispute that Mr Salama, as an employee of Sydney Trains, was a national system employee for the purposes of the FW Act, who additionally was covered by an applicable workplace instrument, namely, the Enterprise Agreement: FW Act s 12. Therefore, the protections in Part 3-1 of the FW Act apply to him.
Section 340(1) of the FW Act relevantly provides:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 340(1)(a) relevantly contains two key elements. The first is that a person does something that comprises “adverse action” against another person. The second is that the adverse action is taken “because” the other person has a workplace right, or has or has not exercised a workplace right, or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
For the purposes of s 340, “workplace right” is defined in s 341(1):
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Section 341(2) relevantly deems the following to be a “process or proceedings under a workplace law or workplace instrument”:
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a)a conference conducted or hearing held by the FWC;
…
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
Section 342(1) sets out in tabular form circumstances where a person is taken to have engaged in adverse action against another. Item 1 includes within the definition of adverse action the circumstance where an employer dismisses the employee or injures the employee in his or her employment, alters the position of the employee to their prejudice or discriminates between employees. It also includes, by operation of s 342(2), threatening to do one of those things. The reference to “injuring” means causing an injury of a compensable kind, and the reference to altering the position of the employee to their prejudice includes any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
Section 346 provides:
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
For the purposes of s 346, s 347(a) relevantly defines “industrial activity”:
A person engages in industrial activity if the person:
(a)becomes or does not become, or remains or ceases to be, an officer or member of an industrial association…
Section 361(1) reverses the normal onus in civil proceedings. It provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
3.2 Ascertaining whether adverse action was taken for a proscribed purpose
Determining whether adverse action has been taken “because” a person, relevantly, had or had exercised a workplace right, or was an officer or member of an industrial association, requires a determination of fact as to the reason or reasons the adverse action was taken. In that regard, s 360 provides that for the purposes of Part 3-1, in which ss 340 and 346(1) are located, “a person takes action for a particular reason if the reasons for the action include that reason”. Therefore, if the court is satisfied that the adverse action was taken for a prohibited reason, or reasons that included a prohibited reason, this will be sufficient to establish a breach.
The High Court considered the causal requirements for adverse action, as established by this statutory scheme, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243.
In Construction Forestry Mining and Energy union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046, Wigney J helpfully synthesised the key principles relevant to this factual enquiry, which I set out below:
296One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal, however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.
297First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].
298Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].
299Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].
300Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].
301Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].
302Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].
303Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].
The mere fact that a person is a member of an industrial association does not insulate them from the proper sanctions flowing from misconduct: Barclay at [60] – [62] (French CJ and Crennan J); BHP Coal at [18] – [22] (French CJ and Kiefel J), [38] (Hayne J) and [88] – [93] (Gageler J). However, where conduct associated with the reasons for taking adverse action involves the exercise of workplace rights or industrial activity on the part of an employee, ascertaining whether or not a reason for the adverse action involves such rights may be more difficult. As much is clear from the dissenting reasons in BHP Coal: see [45] – [47] (Hayne J); [56], [63] and [67] (Crennan J).
In BHP Coal, French CJ and Kiefel J delivered separate reasons to Gageler J, but all agreed in the result. In that case, a member of the CFMEU engaged in a lawful activity organised by the union. During his participation in that activity, the member waved a placard that included the word “scab”. His employment was subsequently terminated. The decision-maker gave evidence at the trial concerning his reasons for dismissing the union member. The reasons included that the word “scab” was considered to be inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of the employer’s workplace conduct policy. The primary judge accepted that the mere fact that the member held certain positions in the CFMEU and had engaged in industrial activity did not play any part in the reasons of the decision-maker to terminate the member’s employment. Nevertheless, the primary judge found that the dismissal contravened s 346 because in waving the placard, the member was participating in a lawful activity organised by the CFMEU. The Full Court allowed an appeal from the judgment of the primary judge. The majority in the High Court upheld the decision of the Full Court.
Chief Justice French and Kiefel J found that it was wrong to infer that, if adverse action is connected to industrial activity, the industrial activity must be taken to be a reason for the adverse action: BHP Coal at [15]. As French CJ and Kiefel J explained at [19]:
Section 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.
Similarly, Gageler J noted at [89]:
In a case where the totality of the operative and immediate reasons for one person having taken adverse action against another person are proved, the question presented by s 346(b) is whether any one or more of those reasons answers the description of the other person having engaged in any one or more of the industrial activities listed in s 347(a) or (b). The specific question presented by s 346(b) in its application to s 347(b)(iii) is whether any one or more of those reasons was that the person had, or had not, encouraged or participated in some lawful activity organised or promoted by an industrial association. The specific question presented by s 346(b) in its application to s 347(b)(v) is whether any one or more of those reasons was that the person had, or had not, represented or advanced some view, claim or interest of an industrial association.
This reasoning provides guidance as to the correct approach. It is, first, appropriate to consider the pleaded adverse action and the alleged proscribed reason(s) by which it is said to have been motivated. Next, one considers the reasons offered, if any, of the decision-maker(s) to ascertain what they contend motivated the decision. Then, having regard to all of the relevant evidence including the credibility of the reasons offered, it is necessary to examine those reasons against the asserted protected rights to determine, as a matter of fact, whether the alleged prohibited reasons was a substantial and operative, or operative or immediate, reason the adverse action was taken. Mere association between the adverse action and a protected right is not sufficient to establish a breach. As Gageler J found in BHP Coal at [90]:
…the totality of the operative and immediate reasons for BHP Coal having taken adverse action against Mr Doevendans were proved by the evidence of Mr Brick about his own process of reasoning. The fact that Mr Doevendans held and waived the signs while participating in the protest organised by the CFMEU was not an operative part of Mr Brick’s reasoning. Nor was the fact that the signs represented or advanced the views or interests of the CFMEU.
His Honour went on:
91The CFMEU argues that the consequence of allowing the decision of the Full Court in the present case to stand will be to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity.
92Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b). The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.
93Another part of the answer lies in recognition of the significance of the combined operation of ss 360 and 361. An employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity. The employer would need, in addition, to prove that the act or omission having the character of a protected industrial activity played no operative part in its decision.
In De Martin, Wigney J noted that one can readily comprehend the distinction drawn by Gageler J between taking adverse action by reason of a person engaging in conduct that has the character of protected industrial activity, and taking adverse action by reason that that conduct has the character of protected industrial activity, having regard to the particular facts of BHP Coal. In BHP Coal, the trial judge accepted the decision-maker’s evidence that he did not dismiss the employee because he had engaged in conduct that had the character of protected industrial activity. He did not dismiss the employee because he was engaged in the protest. He dismissed the employee because the placard he was waving was offensive and contrary to company workplace policy. While that conduct happened to occur in the context of protected industrial activity, that was not the reason for the dismissal. His Honour went on:
307The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker’s reasons in this matter. BHP Coal concerned an alleged contravention [of] s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J’s distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.
308By the same token, an employer could not escape the proscription in s 340(1) merely by proving that the employer applied its own characterisation to a right having the character of a workplace right. The employer would need, in addition, to prove that the right having the character of a workplace right played no operative part in its decision.
The enquiry is one resolutely directed towards the reasons of the decision-maker for the adverse action, rather than the question of whether those reasons can be objectively justified. This point is starkly illustrated on the facts of Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 (Collier J). In that case, Collier J accepted that the only operative and immediate reason for the employee’s dismissal was that his employer believed that he was dishonest in claiming to be sick and taking sick leave. In fact, her Honour found that the belief that the employee was dishonest was objectively wrong, because the employee was genuinely sick. Nevertheless, her Honour found that the employee was not dismissed because he had exercised a workplace entitlement (to take sick leave) and s 340(1) was not contravened. This was upheld on appeal: see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 at [133] – [135] (Rangiah J) and [37] (Jessup J).
Of course, it is necessary to consider the pleaded workplace rights at the outset of the enquiry. By operation of s 361, it is those rights which are presumed to be the reason, or a reason, for the adverse action, unless the respondent employer proves otherwise.
3.3 Ascertaining whether a person is exercising workplace rights
A legal issue arises as to whether or not the rights asserted by Mr Salama are properly characterised as workplace rights within s 341(1) of the FW Act.
In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1 (Shea (No 6)), Dodds-Streeton J said:
29…in the context of s 341(1)(c)(ii) of the Act:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
In developing the point, her Honour said:
619The relevant object of the provision is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment, rather than to protect employees who have proved, or are able to prove, that the grievance or accusation is justified or meritorious. Were it otherwise, the protection afforded by the provision would be largely illusory, as persons would be vulnerable to retribution for making a complaint unless, and perhaps until, their case could subsequently, by some unspecified means, be proved or found valid.
620It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.
621While the factual basis of a complaint need not be “true” or capable of ultimate substantiation, in my view, the grievance must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid. There would otherwise be no real, but merely a spurious, grievance. The exercise of the workplace right constituted by the making of a complaint is not within the scope of statutory protection if it is made without good faith or for an ulterior purpose, extraneous to that for which the statutory protection was conferred.
622The protection conferred by the provision is directed at workplace rights. When the relevant workplace right is the employee’s ability to make a complaint in relation to his or her employment, to make a complaint not in order to communicate the stated grievance or accusation so that it may be appropriately considered and redressed, but to achieve some collateral advantage or objective, would not, in my opinion, invoke the statutory protection. No legitimate statutory objective would be achieved.
623Accordingly, in my view, the complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation. In the absence of such a belief (which may be difficult, albeit not impossible, to establish in the absence of some reasonable basis) the complaint would not be a genuine grievance or finding of fault.
624Further, the grievance or accusation must be communicated for a proper statutory purpose, which would, at least, entail giving the employer notice of the relevant matters or securing information, protection, redress or some other appropriate response.
625In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
On appeal, the Full Court did not have to review this reasoning, although it expressed the need for caution in implying such qualifications: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; 242 IR 159 (Rares, Flick and Jagot JJ) at [12] – [13]. In PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 the Full Court recently endorsed the proposition set out in Shea (No 6) that a complaint for the purposes of s 341(1)(c)(ii) must be underpinned by legislative provisions, contractual terms or the general law (at [16] (Rangiah and Charlesworth JJ)), and also must be made in good faith and for a proper purpose (at [26] (Rangiah and Charlesworth JJ) and [137] (Snaden J)).
More recently, however, in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, Bromberg J (with whom Mortimer J agreed), whilst expressing general agreement with many of the principles arising from Shea (No 6) in relation to what constitutes a complaint within the meaning of s 341(1)(c), took issue with the proposition expressed at [625] of Shea (No 6) and the reasoning in Pia Mortgage which endorses it. His Honour rejected the proposition that only complaints sourced in some right or entitlement held by the employee are protected under s 341(1)(c)(ii). In this respect, his Honour considered that the Full Court in PIA Mortgage was plainly wrong to read such a limitation into s 341(1)(c)(ii), and indicated that had it been necessary to do so to decide the case in Cummins, he would have declined to follow it. These observations were, however, obiter dicta and to the extent relevant in the present case, it is apparent that I am bound to follow PIA Mortgage.
An ancillary issue arises from the submissions as to whether workplace rights under s 341(1)(a) and 341(1)(b), in addition to those defined under s 341(1)(c), need be exercised in good faith and for a proper purpose. This question can be restated, broadly, as whether the reasoning in Shea (No 6), insofar as it relates to the requirement that complaints or inquiries must be made in good faith and for a proper purpose, should be extended beyond s 341(1)(c)(ii) to equally apply to workplace rights exercised or held pursuant to ss 341(1)(a) and 341(1)(b).
Mr Salama interprets Sydney Trains’ submissions as suggesting such a construction and submits that Shea (No 6) should be confined in its application to s 341(1)(c)(ii). However, Sydney Trains’ position on this legal issue is more nuanced. It does not contend that a requirement of genuineness or legitimate purpose is to be implied into the statutory language of ss 341(1)(a) or 341(1)(b). Rather, it submits that in relation to whether: (1) under s 341(1)(a), a person is entitled to the benefit of or has a role or responsibility under a workplace law or workplace instrument; or (2) under s 341(1)(b), is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument, will depend on the proper construction of the relevant workplace instrument or workplace law. As noted in section 5.3 below, it is Sydney Trains’ case that, according to the proper construction of the Enterprise Agreement, a “dispute” instigated under cl 8 of the Enterprise Agreement does not include a dispute that was not instituted bona fide and for a proper purpose. It submits that Mr Salama did not initiate any of the pleaded disputes for a proper purpose and, accordingly, Sydney Trains submits he was not entitled to the benefit of, or able to initiate or participate in, the process under cl 8. Sydney Trains makes a similar submission with respect to the stop bullying proceedings. In this connection, it submits that on the proper construction of the FW Act, the relevant workplace law said to enable Mr Salama to commence the stop bullying proceedings, Mr Salama held no such legal right or entitlement. In this regard it submits, drawing on the language in Shea (No 6) at [630], that an employee cannot make “mischievous, baseless and damaging accusations of misconduct in the workplace” or do so in an “abusive or threatening manner”.
Given that Sydney Trains’ case is centred on the proper construction of the Enterprise Agreement and the provisions of the FW Act relevant to Mr Salama’s ability to commence the stop bullying proceedings, and not the statutory language of ss 341(1)(a) or 341(1)(b), it is unnecessary for me to determine whether a requirement of good faith and proper purpose should be read into those sections. I address the proper construction of the Enterprise Agreement in section 5 below.
4. FINDINGS OF FACT AND CHRONOLOGY OF EVENTS
Set out below are findings of fact based on the affidavit evidence and documents which are relevant to the issues in dispute. It is arranged in loosely chronological order. Headings have been inserted to provide guidance as to particular subjects although it may be noted that factual issues tend to overlap and that, accordingly, the headings provide guidance for ease of reading, rather than a definitive statement as to the relevance of the material referred to.
4.1 Mid-2016
At the beginning of 2016, Mr Salama and Mr Keech each applied to “act up” in the position of TTM. At the time, Mr Keech was a Senior Transport Officer and was Mr Salama’s direct manager. Mr Keech was selected and commenced acting up in the role off TTM shortly thereafter in 2016.
On 12 July 2016, as acting TTM, Mr Keech conducted a bi-monthly “Performance Development Plan” (PDP) assessment regarding Mr Salama’s performance as a Transport Officer. Mr Keech rated Mr Salama’s performance as a “3” in that PDP, and Mr Salama refused to sign it as he did not agree with the rating.
On 27 July 2016, Ms McKendry arranged and attended a meeting with Mr Salama, Mr Spicer and Mr Skundric to discuss issues that had arisen due to a proposal that the team change their start location. During this meeting, Mr Salama told Ms McKendry that he had lost confidence in Mr Keech.
On 19 August 2016, Mr Salama emailed Ms McKendry, other members of the team (including Mr Keech) and the WCIU, outlining nine issues that he considered had been raised at the 27 July 2016 meeting in relation to Mr Keech’s conduct as acting TTM (First Keech complaint). The allegations against Mr Keech included that he had bullied and harassed Mr Salama, that he was trying to change previously made work arrangements, and that he was giving Mr Salama “3s” in his PDPs rather than “4s” like he had received previously. Mr Salama expressed disappointment that no feedback had been given to him or other members of the team in relation to the meeting, and that Mr Keech was still acting as TTM. He asked Ms McKendry to provide him in writing an outcome in relation to each of the nine points.
In response to Mr Salama’s email of 19 August 2016, Ms McKendry arranged and attended a meeting on 26 August 2016 with Mr Salama, Mr Skundric and TTMs Mr Kane and Peter Murray, the latter two acting as her support persons. Ms McKendry’s file note of the meeting records that four of the nine issues raised in the First Keech complaint were addressed. Ms McKendry explained to Mr Salama that Mr Keech was his supervisor and would make decisions as to how to run the team, and changing the starting location of a shift did not qualify as bullying and harassment. In relation to Mr Salama receiving “3s” in his PDPs, Ms McKendry acknowledged that Mr Salama disagreed with those ratings but stated that Mr Keech had followed the correct rating scale.
On 31 August 2016, Ms McKendry, Mr Salama, Mr Skundric, Mr Kane and Mr Keech attended a meeting to discuss the remaining issues raised in the First Keech complaint. The meeting was scheduled for one hour but went for four and a half hours. Ms McKendry gives evidence that Mr Salama continually challenged and argued with her responses to each of the issues he had raised. After discussing the balance of the points, Ms McKendry’s file note of the meeting records that Mr Salama stated he would not work with Mr Keech until he had proven that he would change. Ms McKendry gives evidence that some of the resolutions reached involving Mr Salama reporting to her rather than Mr Keech were not within the usual chain of command process, but were implemented so that the issues could be resolved. Mr Salama accepts that during this meeting he stated words to the effect that Mr Keech was “incompetent and would not pass probation with his current work performance”. Following this meeting, Mr Salama was temporarily re-assigned to another team.
On 8 September 2016, Mr Salama emailed Ms McKendry and the WCIU. This email included reference to the same nine issues as in the First Keech complaint, as well as further commentary on those issues by Mr Salama, Mr Spicer and Mr Robertson. Included under the “bullying and harassing” heading is an excerpt of an email dated 26 July 2016 from Mr Keech to Mr Salama and the other members of the team, in which Mr Keech proposes that the team should consider whether they should start their shifts at Penrith rather than Blacktown. Mr Keech asks the team to let him know what they think, and notes that they will vote as a team before any changes are made.
In response to the First Keech complaint and the further email from Mr Salama on 8 September 2016, the WCIU commenced an investigation into the matter. That investigation made the following finding:
There are no grounds to warrant further WCIU inquiries into this complaint. The concerns raised by Mr Salama relate to operational matters which can be, and for the most part have been, addressed at the local management level.
On 19 September 2016, this finding was communicated in a letter from Mr Gillies to Mr Salama. In that letter Mr Gillies reminded Mr Salama of his confidentiality obligations and stated that the outcome of the investigation was to remain confidential. On 21 September 2017, Mr Salama sent an email to Mr Gillies, copying in others, with the following words included:
I am not satisfied with managements [sic] handling of the investigation and I am now formally escalating the matter to your team for an “independent” investigation.
4.2 Mr Salama’s attempts to procure a vote of no confidence in Mr Keech
On 13 September 2016, Mr Keech made a complaint to Mr New about Mr Salama’s conduct which alleged that Mr Salama had harassed Mr Keech and attacked his reputation by contacting colleagues within their team to rally support against Mr Keech in an attempt to force a “no confidence vote” on Mr Keech’s leadership of the team. An investigation was then conducted by the WCIU.
On 14 September 2016, Mr New sent an email to Yvette Mihelic, his direct supervisor at the time, that formalised his concerns in regard to Mr Salama’s behaviour and actions. In it, he referred to and attached statements from other members of the team who had received messages and telephone calls from Mr Salama on 2 September 2016, in which he questioned Mr Keech’s leadership and enquired as to whether they would support a no confidence vote.
On 16 September 2016, Mr Gillies informed Mr Salama that the WCIU had received a complaint about Mr Salama’s conduct.
The WCIU commenced an investigation into the complaint and made the following finding on 11 November 2016:
There is insufficient evidence to substantiate allegations of bullying and harassment and it is recommended that the matter not proceed to a formal investigation and it is referred back to the business for local management action.
One of the conclusions reached by the WCIU was:
The behaviour of both Mr Salama and Mr Spicer is however, considered unreasonable and as such it is recommended that remedial action be taken at a local management level.
As noted below at [130], on 16 November 2016, Mr New sent Mr Salama a letter expressing concern about his behaviour in relation to this incident.
On or around 13 September 2016, Mr Keech became Acting Team Manager for a temporary period whilst Ms McKendry was on leave.
On 14 September 2016, Mr Salama sent the following email to Mr New, copying in others:
I have been informed that it is managements [sic] intention to act Charlie Keech up next week into a Team Managers role. In light of the current investigation below, I suggest that this decision is rather inappropriate considering the overwhelming evidence brought forward and the fact that it is being investigated by WC&IU as per your suggestion. I would also strongly suggest that this decision be reconsidered as it may be viewed as one of a corrupt nature and would then leave me no choice but to refer the matter to ICAC.
Please respond as to your decision within 24 hours, thank you.
4.3 The November meeting with Mr Robertson
On 22 September 2016, Mr Salama attended a meeting with Mr Robertson, the purpose of which was to discuss Mr Robertson’s frequent absences from work. In a file note dated 23 September 2016, Daniel Shields (an acting business operations lead in the FCU at the time), who attended the meeting with Ms Sweeting (a Human Resources business partner at Sydney Trains), records that Mr Salama was “quite disruptive throughout the meeting, speaking on [Mr Robertson’s] behalf and thus failing in his responsibilities as a support person”. The file note also states “[Mr Salama] was insistent that to date no one had established that [Mr Robertson’s] 94 absences constitutes unacceptable attendance, continually asking [Ms Sweeting] and myself why we were having a Step 2 discussion”. The meeting was then called to an end and Mr Robertson was advised that he would be required to attend a further meeting to explain his circumstances. I accept this note as an accurate record of the meeting.
In cross-examination it was put to Mr Walsh, who agreed, that the tone of a number of emails sent by Mr Salama after February 2017 was “cordial”. That was not, however, to the point. As Mr Walsh said in his evidence in chief and expanded on in cross-examination, it was his practice of sending numerous emails to “argue the toss” for no apparent legitimate purpose that caused Mr Walsh concern.
Thirdly, Mr Walsh was aware that after February 2017 there continued to be issues concerning Mr Salama’s behaviour and that, on 18 May 2017, Ms Francisco had written to Mr Salama, requiring him to attend a first formal counselling session.
As Mr Walsh explained, it was Mr Salama’s outright rejection of the proposed remedial action to which he was referring in item (1) of the show cause letter, when he said that Mr Salama had “failed to ‘Constructively receive feedback on work performance and participate in/attend performance review meetings…’”.
Mr Walsh gave evidence at the hearing, which I accept, that he was unaware that, on 21 June 2017, Mr Fozzard of the RTBU had raised a dispute in relation to the PCIP process commenced by Ms Francisco.
Importantly, I accept that Mr Walsh chose to identify the 18 May 2017 incident and what followed because it provided an example of Mr Salama refusing to accept or participate in a process of counselling to address his behaviour in relation to issues that had previously been raised by Ms Francisco. Mr Walsh was aware (by reason of the content of the letter dated 7 June 2017 but handed to Mr Salama on 20 June 2017) that previously, on 10 February, 27 April and 9 May 2017, Ms Francisco had informally counselled Mr Salama about how he should communicate within Sydney Trains in an appropriate manner following his several failures to do so.
Fourthly, three days after the 18 May 2017 letter, on 21 May 2017, Mr Salama commenced the stop bullying proceedings. Mr Walsh gives evidence that whilst he “had no issue” with the fact that Mr Salama was entitled to commence genuine proceedings in the Fair Work Commission, he was concerned about the timing of the application and the fact that the allegations included matters which were historical and most of which had already been investigated internally at Sydney Trains and found to be unsubstantiated. He formed the view that the stop bullying proceedings were “disingenuous and [were] in fact an illustration of the [Mr Salama’s] continued pattern of behaviour of not being able to accept reasonable management action” and that Mr Salama was “unable to trust and effectively work with three levels of management above him”.
Mr Walsh was not challenged in cross-examination in relation to this evidence. I accept that Mr Walsh was aware of the commencement of the stop bullying proceedings at the time of his decisions. I find that his concern about those proceedings concerned their timing (as an apparent response to Ms Francisco’s letter of 18 May 2017 inviting him to a first formal counselling session) and that his view that the application was filed vexatiously and in an attempt to avoid reasonable management action was genuinely held. There was, as I set out in section 5.3.2 above, a rational basis for that view, but in any event, I am satisfied, and find, that Mr Walsh identified the stop bullying proceedings in the letter because he genuinely held the view that they were not filed for legitimate reasons, and were indeed filed for the purpose of avoiding reasonable management action, as he says in items (2)(a) and (b) of the show cause letter, a point he develops in (2)(c)-(f).
I am satisfied that Mr Walsh raised the stop bullying proceedings in the show cause letter purely to illustrate what he considered to be another example of Mr Salama’s ongoing failure to comply with the required standards set out on the first page of the show cause letter by reference to Ms Hole’s February 2017 letter. I do not consider that it being mentioned in the show cause letter demonstrates that part of the rationale for the decision to take adverse action was a prohibited reason. Nor do I consider that the fact that Mr Salama had raised a workplace issue in the stop bullying proceedings formed part of the motivation for the decisions made by Mr Walsh.
Fifthly, in his evidence in chief, Mr Walsh identifies and exhibits a chain of email correspondence which commenced after Ms Francisco sought to invite Mr Salama to a first formal counselling session.
It commences on 25 May 2017 with email from Mr Salama’s RBTU delegate, Mr Skundric (set out above in section 4.11) where Mr Skundric requested that Mr Walsh give “urgent consideration” to alleged “adverse action” by Ms Francisco against Mr Salama. Mr Walsh directed him to his line manager, Mr New. On 26 May 2017, Mr Skundric declined to approach Mr New alleging that he was “complicit”. On 29 May 2017, Mr Salama picked up the correspondence, saying that Ms Francisco “is trying to force me to attend a meeting regarding my conduct”, and requesting a meeting with Mr Walsh once Mr Skundric was back from leave.
Mr Walsh informed him that Mr Salama should follow PCIP procedure and meet with Ms Francisco before him. Mr Salama responded on 30 May 2017 by contending that he was entitled to union representation by Mr Skundric, citing Vong v Sika. Mr Salama followed up this email with another the next day, saying to Mr Walsh that he “generally afford[s] a 48 hour window to respond, however...I request your urgent response...I will not be attending the meeting unless I am shown of my legal obligation to do so”.
Mr Walsh responded substantively to the Vong v Sika reference, and drew attention to cl 6.8.1 of the Performance Improvement Procedure which states that he was entitled to bring a support person not a particular support person. In his response of 31 May 2017, Mr Salama disagreed with that outcome and informed Mr Walsh that he would decline to meet with Ms Francisco.
Mr Walsh gives evidence that the communications summarised above “only reinforced my concerns regarding what appeared to be a complete breakdown in [Mr Salama’s] relationship with his line managers and his inability to accede to reasonable management action”. He was not directly challenged on this view. Indeed, in my opinion, his view is supported by the correspondence.
This theme is picked up in items (3) and (4) of the show cause letter. In (3), Mr Walsh identifies that on 20 June 2017 Ms Francisco issued Mr Salama with a letter outlining her expectations that he “listen to and follow reasonable instructions by those in supervisory or management positions, without constantly challenging, and arguing with, decisions conveyed to you”. He notes his view that this request was consistent with Sydney Trains’ values and expectations as to Mr Salama’s conduct.
In (4), he then summarises the chain of correspondence concerning the field start issue, summarised in the chronology at section 4.12 above. In cross-examination, it was again suggested to Mr Walsh that this was a cordial exchange and that it reflected a change in behaviour on the part of Mr Salama, following his receipt of the PCIP. Mr Walsh responded, credibly in my view, that whilst there was cordiality in the tone, he remained of the view that Mr Salama persisted in being argumentative and combative and failing to take reasonable directions from managers. I accept that this was a view genuinely held by Mr Walsh. Indeed, having regard to the correspondence to which I have referred, I consider it to be a rationally held view. On this basis, I am satisfied that the fact that Mr Salama exercised a workplace right with respect to the field start issue did not play any role in Mr Walsh’s decision to take the adverse action.
Sixthly, Mr Walsh explains that the catalyst for the suspension and show cause letter was the “managers are fair game” email from Ms Francisco, which Mr New forwarded to him on 27 June 2017 (see section 4.13 in the chronology above). Mr Walsh says that he had worked with Ms Francisco for a number of years and had the impression that she was ordinarily a resilient and fair person. He was alarmed and concerned about the safety and welfare of Ms Francisco and other members of his team whom he knew to be dealing with Mr Salama. He had himself experienced first-hand Mr Salama’s argumentative approach and unwillingness to accept lawful and reasonable directions from his superiors.
Mr Walsh’s evidence is that on 19 July 2017, the day after he returned from leave, he met with Mr New about Ms Francisco’s “managers are fair game” email. Mr Walsh exhibits a contemporaneous file note of that meeting, where he records his concern about the matters outlined in Ms Francisco’s email, and that Mr New informed him then that he was concerned about Ms Francisco’s health having regard to Mr Salama’s behaviour. The note concludes:
•I am concerned about this continuing pattern of conduct/behaviour despite remedial action
•I have been across some of the issues highlighted by [Ms Francisco] and concur with her views in relation to the motivation behind them.
•I have a duty of care to [Ms Francisco] to ensure she is not subjected to unfair, harassing or unacceptable conduct or behaviour that may impact her health.
•I will seek advice as to the most appropriate course of action given that prior interventions and attempts to remediate are seemingly proving futile.
In cross-examination and in closing submissions, Mr Salama suggests some insouciance on the part of Mr Walsh concerning Ms Francisco’s welfare, because he waited until after his leave to raise the “managers are fair game” email with Mr New. However, in my view, Mr Walsh credibly explained his delay and his regret for deferring his meeting with Mr New until after his return. Otherwise, it was not put to Mr Walsh that the views expressed in this note were not genuinely held. I find that they were.
In cross-examination, Mr Walsh was asked about item (5) of the show cause letter, which concerns matters raised in relation to the union rights dispute (see section 4.9 above). In the show cause letter Mr Walsh says that on 30 June 2017 he “was required to address a dispute you escalated to me in which again you challenged, and argued with, a reasonable instruction and decision conveyed to you by Ms Francisco”. Mr Walsh sets out the instructions given by Ms Francisco, to the effect that while on patrol she expected Mr Salama to be patrolling, and that if he required additional time to complete his union and other duties he should request it and she would assess and accommodate where feasible. He then records Mr Salama’s response (an accusation that the request appeared to be a breach of the Enterprise Agreement) and Mr Salama’s later clarification as to the breach he alleged, to the effect that Ms Francisco’s email “suggests that I should constantly seek your approval to fulfil my duties as HSR/Union Delegate”. Mr Walsh concludes by stating that there was no basis for that assertion and, in his view, that it amounted to a challenge to a reasonable instruction from Ms Francisco. I accept that Mr Walsh held a concern that Mr Salama had received an instruction that was quite reasonable, but had failed to accept or respond to it other than by making, in Mr Walsh’s view, spurious accusations of breach of the Enterprise Agreement.
There was evidence that, arising out of the union rights dispute, a request had been made of Mr Walsh by Mr Salama and other RTBU delegates to amend the wording of the Enterprise Agreement to clarify the position of delegates performing their duties on paid time. On 25 July 2017, the day after Mr Walsh had issued the show cause letter to Mr Salama, Mr Walsh denied this request. During cross-examination, Mr Walsh denied that this request had anything do to with the show cause letter issued to Mr Salama. I accept this evidence.
There is a minor dispute on the evidence as to whether Mr Walsh had previously said to Mr Salama that he would not need to seek permission each time he received a call in his role as a union delegate. Mr Walsh cannot remember the conversation, but contends that no one had suggested to Mr Salama that he had to make a request for permission for every call that he would receive as a union delegate. This is substantially consistent with the initial conversation which Ms Francisco deposes to having with Mr Salama during his 17 May 2017 PDP meeting where she said words to the effect that “[y]ou can take calls and answer emails during down-time in between trains”. Rather, Mr Walsh recalls suggesting to Mr Salama (and other union delegates) that, if he was regularly having to take calls or attend to union matters, it would be in his interests to keep his managers updated, so that when it came to his PDP assessments, the amount of time that he was spending on union related matters would not come as a surprise.
In my view, the correspondence exhibited to the affidavits of Mr Salama, Mr Walsh and Ms Francisco supports the view expressed by Mr Walsh, namely that neither Ms Francisco nor any other representative of Sydney Trains had informed Mr Salama that he must constantly seek approval in order to attend to RTBU matters. In this context, I accept that Mr Walsh believed that Ms Francisco’s direction was reasonable and that Mr Salama had no basis to argue or challenge it. I consider that this supports the view that Mr Walsh took the adverse action, not because Mr Salama had exercised a workplace right to invoke the DSP, but because he believed that Mr Salama was not able to follow reasonable directions issued by his managers.
In item (6) of the show cause letter, Mr Walsh refers to the notification issue as a further example of a failure on the part of Mr Salama to accept reasonable instructions without cavilling with them. In his oral evidence he defended, credibly in my view, Ms Francisco’s email of 4 July 2017, asking that Mr Salama inform her of all union meetings he needed to attend “so that suitable arrangements can be made in advance” (see section 4.14 above). He expresses the view that it was a reasonable instruction that Mr Salama nonetheless challenged. He suggested that although Mr Salama’s emails appeared to be quite cordial, given the context of what had been going on over a significant period of time, he was of the view that there was some gamesmanship happening. I accept that Mr Walsh genuinely held this view.
In item (7) of the show cause letter, Mr Walsh refers to an email exchange where Ms Francisco sent congratulations to staff on nominations to take place in a “Master Roster Review”. In response, Mr Salama sent a “reply all” email where he made allegations that those nominated had been “pro management”, disputed the selection process of candidates who were said to have been “hand picked by management”, and said that management had “once again broken an agreement we had”. Mr Walsh said that this was an argumentative and disrespectful email. He was not questioned on this view in cross-examination. In my view, he genuinely held this view which I consider is also well-supported by the text of the correspondence.
Mr Walsh gives evidence that based on the matters to which I have referred above and including the “managers are fair game” email from Ms Francisco, he decided to intervene and take immediate action, including to suspend Mr Salama. He provided the show cause letter to Mr Salama at a meeting on 24 July 2017. By that time he had formed the view that Mr Salama had failed to act in accordance with his obligations as an employee, as set out in the allegations of misconduct set out in the show cause letter. I accept that the allegations of misconduct made by Mr Walsh in the show cause letter arose because of Mr Walsh’s view that Mr Salama had demonstrated a failure to maintain the standards of behaviour set out in the Code of Conduct set out therein. It was those matters that motivated the decision to send the show cause letter and suspend Mr Salama.
Further, Mr Walsh gives evidence that when he received the response to the show cause letter sent on 31 July 2017 by Mr Salama’s solicitors at the time, he was disappointed that Mr Salama had failed to answer his letter with any demonstration of insight, willingness to take responsibility for his actions or an agreement to make a positive change. If he had done so, Mr Walsh would have considered his response and may have considered options other than dismissal. Mr Walsh gave written evidence, upon which he was not challenged in cross-examination, to the following effect:
In my view, [Mr Salama] failed to show any insight or reflection on the concerns raised in my letter. It was my belief, by virtue of his conduct, that [Mr Salama] believed he could not work with 3 levels of management and in my mind, that made the employment untenable. My view was that we had reached a point where there was an irretrievable breakdown of the relationship.
Mr Walsh subsequently prepared the briefing note for Mr Kable and recommended termination of Mr Salama’s employment. He gave evidence that:
I recommended that [Sydney Trains] terminate the employment of [Mr Salama] because despite remedial action and attempts to improve his behaviour and conduct over a period of time, [Mr Salama] had failed to demonstrate the required level of competence/suitability for his position. I also took into account [Mr Salama’s] response to the show cause letter of 24 July 2017 provided by his lawyer.
Contrary to the suggestions made in the submissions advanced by Mr Salama, it is apparent from Mr Walsh’s oral and written evidence that the “competence/suitability” to which Mr Walsh referred is not concerned with Mr Salama’s ability to perform the basic functions and tasks of a Transport Officer, but his ability to work within the management structure of Sydney Trains and to communicate in an appropriate manner.
In response to the allegations advanced by Mr Salama in this case, Mr Walsh specifically denies that he treated Mr Salama differently from, or less favourably to, other employees because he was a union delegate, because he was an HSR representative, because he assisted other employees in his role as union delegate or because he notified disputes under cl 8 of the Enterprise Agreement. He also specifically denies that any of his decisions were made for any of the reasons advanced by Mr Salama as to why Sydney Trains took unlawful adverse action.
I have formed the view that Mr Walsh gave consistent and credible evidence explaining his reasons for making the decisions to take adverse action against Mr Salama. To a large extent, his evidence was independently supported by the extensive documentary evidence in the form of email communications. I accept that the reasons for making his decisions to issue the show cause letter, suspend and then terminate Mr Salama from his employment, were as he stated in his affidavit material. More specifically, having regard to the presumption created by s 361(1) FW Act, I am satisfied, on the basis of his evidence, that Mr Walsh’s decisions were actuated by his view that Mr Salama had, over a period of time, demonstrated an inability to comply with Sydney Trains’ Code of Conduct and his position description insofar as it concerned the ability:
(a)to maintain suitable interpersonal skills and communications;
(b)to follow reasonable instructions issued by those in supervisory or management positions;
(c)to constructively receive feedback on work performance and participate in and attend performance review meetings;
(d)to work under instructions and as reasonably directed by relevant managers and to listen to and follow reasonable instructions without constantly challenging and arguing with decisions; and
(e)to work collaboratively and as a member of a team.
I accept that parts of the show cause letter refer to Mr Salama’s conduct that involved his actions as a union delegate or involved the exercise of workplace rights. In this regard, I accept the evidence given by Mr Walsh that his motivation for issuing the show cause letter (and the steps he subsequently took) was not at all concerned with the exercise of those rights. The adverse action was taken for the reasons that I have outlined. Having regard to the whole of his evidence, including the cross-examination, I accept Mr Walsh’s evidence that the workplace rights asserted by Mr Salama did not play any role in his decision-making process.
6.2.4The evidence of Mr Kable
Mr Kable gave evidence that on 7 August 2017 he received the briefing note from Mr Walsh which sought his approval to terminate the employment of Mr Salama. In cross-examination, he adhered to his evidence that he approved the recommendation made by Mr Walsh to terminate Mr Salama’s employment for the reasons set out in the briefing note, which he summarised as being because after remedial action and attempts had been made to improve his behaviour and conduct over a period of time, Mr Salama failed to demonstrate the required level of competence or suitability for his position. Mr Kable specifically denied that he approved the recommendation because of any of the workplace rights alleged by Mr Salama.
In cross-examination, Mr Kable gave evidence that he had no independent recollection of the meeting that he had with Mr Walsh at which he signed the briefing note. Having regard to the seniority of Mr Kable’s position within Sydney Trains, and his evidence in cross-examination and in chief, I accept that denial. Contrary to Mr Salama’s submission, I do not consider that the fact that Mr Kable had no recollection of the meeting undermines the reliability of his evidence that he authorised Mr Salama’s termination for the reasons stated in the briefing note.
The briefing note concentrates on the counselling provided to Mr Salama in relation to his inability to communicate appropriately in the workplace and his failure to co-operate in the remedial processes that had been put in place. Having regard to Mr Kable’s evidence, I accept that the reason for his decision to authorise the termination of Mr Salama’s employment was because notwithstanding various attempts to remediate and improve his behaviour in the workplace, Mr Salama had failed to demonstrate that he possessed the required level of suitability or competence for his position. I accept Mr Kable’s denial of any motivation or cause for the decision to arise from the exercise by Mr Salama of a workplace right within s 340(1) or industrial right within s 346 of the FW Act.
6.3 Conclusions in relation to the reason for the decisions
I accept the evidence of Mr Walsh and Mr Kable going to their decision-making processes and the reasons they gave for their decisions to issue the show cause letter, suspend and then terminate the employment of Mr Salama.
The facts in the present case upon which Mr Salama relies may to some extent be compared with those in BHP Coal. There, the employee was engaged in conduct that had the character of protected industrial activity in the form of waving a placard as part of a protest. However, he was not dismissed because he was involved in the protest, but because of what occurred in the context of the protected industrial activity.
In the present case, the seven examples given in the show cause letter make reference to conduct of Mr Salama that may, in some respects, be said to have arisen in the context of protected workplace rights or industrial activity in the form of (by reference to those items): (1) the PCIP dispute; (2) the stop bullying proceedings; (4) the field start dispute; (5) the union rights dispute/request issue; and (6) the notification issue. All of these events occurred while Mr Salama was an officer or member of an industrial association.
However, it is not necessary for the decision-makers to establish that the reasons for the adverse action are entirely disassociated from the relevant protected workplace right: Barclay at [62] (French CJ and Crennan J); De Martin at [303] (Wigney J). The protection afforded by ss 346(a) and 340(1) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity: BHP Coal at [92].
In the present case, I am satisfied that the decision to take the adverse action was not made for the reason that Mr Salama had engaged conduct having the character of protected workplace rights under s 341(1)(a)-(c) of the FW Act. Nor was the decision made for the reason that he was engaged in conduct having the character of protected industrial activity under s 346(1). Whilst in section 5 I have accepted that some of Mr Salama’s conduct can be characterised as involving workplace rights and industrial activity protected under ss 341(1)(a)-(c) and 346(1) of the FW Act, I am not satisfied that the adverse action (in part or in whole) was taken by reason that this conduct had the character of protected workplace rights or industrial activity. To the contrary, I am satisfied that no part of the decision to take the adverse action was for the reason that any of Mr Salama’s conduct had the character of protected workplace rights or industrial activity. I find that the decisions were made because in summary, in the view of Mr Walsh and Mr Kable, Mr Salama had demonstrated his inability or unwillingness to comply with the Code of Conduct, meet the requirements of his position description, work within the management structure of Sydney Trains and communicate appropriately with others. The consequences of Mr Salama’s conduct upon employees of Sydney Trains were telling, as Mr Walsh observed and as the “managers are fair game” email indicates.
I am conscious that Sydney Trains cannot escape the proscription in ss 340(1) or 346 by simply providing its own characterisation of the action that it took. I am also conscious that the reasons provided by Mr Walsh and Mr Kable as to why the adverse action was taken must be considered against the background of the totality of the evidence and any contrary inferences available on the facts. In this regard, Mr Walsh and Mr Kable cannot conveniently explain their decisions as being undertaken for reasons that elide the fact that one of the reasons the adverse action was taken was because Mr Salama had exercised, or proposed to exercise, his protected rights. However, having considered the written and oral evidence of Mr Walsh and Mr Kable, and having regard to the totality of the facts and circumstances of the case, I am persuaded that they have not done so.
I consider that Sydney Trains has discharged its onus under s 361(1) and I accept that the adverse action was not taken because Mr Salama exercised any workplace rights or due to the fact of his membership and office with the RTBU. I conclude that Sydney Trains’ decision to issue the show cause letter, suspend and subsequently terminate the employment of Mr Salama was not made for a prohibited reason, or reasons which included a prohibited reason. Accordingly, Mr Salama’s claims under ss 340(1) and 346 must be dismissed.
7. ALLEGED CONTRAVENTION OF THE ENTERPRISE AGREEMENT
7.1 Introduction
Mr Salama pleads that during the term of his employment Sydney Trains was required to abide by the terms of the Enterprise Agreement and apply that agreement to its dealings with him insofar as it concerned his employment as a Transport Officer, his role as a union delegate and his role as an employee representative. Mr Salama alleges that Sydney Trains contravened cls 8 and 38 of the Enterprise Agreement. As a consequence, Mr Salama contends that Sydney Trains has acted in breach of ss 50 to 54 of the FW Act.
Sydney Trains does not dispute that Mr Salama’s employment was covered by the Enterprise Agreement, but denies the breaches alleged.
The List of Issues records that the alleged breach of cl 8 of the Enterprise Agreement involved the failure on the part of Sydney Trains to apply the DSP in the proper manner in relation to:
(a)the union rights dispute; and
(b)the PCIP dispute.
The alleged breach of cl 38 of the Enterprise Agreement is said to arise in relation to:
(a)the Robertson 3 November 2016 meeting; and
(b)the union right dispute.
The relevant terms of cls 8 and 38 of the Enterprise Agreement are set out in sections 5.2 and 5.3 above.
7.2 Consideration of the alleged breaches of cl 8 of the Enterprise Agreement
Mr Salama contends that Sydney Trains acted in breach of cl 8.4 of the Enterprise Agreement which relevantly provides:
STEP 1: ...The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
He contends that Sydney Trains acted in breach of this clause by failing to maintain the status quo when it proceeded to terminate his employment without first resolving each of the union rights and PCIP disputes. More specifically, Mr Salama contends that Sydney Trains acted in breach of cl 8 of the Enterprise Agreement because, at the point in time when Sydney Trains terminated his employment, there was an ongoing dispute notified and, accordingly, the status quo was not maintained as required by cl 8.4.
Sydney Trains submits that both of these disputes were resolved prior to Mr Salama’s termination. It contends that this is a complete answer to the allegation.
In my view, this aspect of Mr Salama’s claim must fail for the following reasons.
First, cl 8 contemplates potentially four steps being taken in the course of a dispute notified between employer and employee. The “status quo” can only be required to remain static during the currency of the dispute.
Secondly, during the course of the union rights dispute, as evidenced by the email correspondence set out above in section 4.9 of the chronology, Ms Francisco attempted to resolve the dispute on 19 May 2017 after it had been escalated to “Step 1” by Mr Salama. It was then escalated to “Step 2” and addressed by Mr New on 26 May 2017. When Mr Salama escalated it to “Step 3”, Mr Walsh addressed the dispute in his email dated 30 June 2017 who concluded his communication with the words “I trust this concludes the matter”. No further communication was received by Sydney Trains in relation to this dispute. At that point, there was no basis upon which Sydney Trains could conclude that the dispute remained on foot and, consequently, that the dispute required the status quo be maintained.
Thirdly, a similar state of affairs arises in relation to the PCIP dispute (discussed above in section 4.11). It was notified by Mr Fozzard (acting on behalf of Mr Salama) on 21 June 2017 as a “Step 1” dispute. It was subsequently elevated to “Step 2” and then “Step 3”. However, I am satisfied that by the time of the show cause letter, Sydney Trains accepted that it had not been implemented. As much is clear from the show cause letter itself, which states that Sydney Trains had “sought” to place Mr Salama on a PCIP, but does not otherwise suggest that the PCIP was in place or had been acted upon. Subsequent email correspondence serves to confirm that this was so. To the extent that Mr Walsh may have suggested otherwise in his oral evidence, I consider that he was mistaken. Consequently, I consider this dispute to have been resolved by at least the time of the show cause letter.
Accordingly, the claims made by Mr Salama concerning breach of cl 8 of the Enterprise Agreement must be dismissed.
7.3 Consideration of the alleged breaches of cl 38 of the Enterprise Agreement
The first alleged breach of cl 38 is said to arise from the Robertson 3 November 2016 meeting, the details of which have been summarised in section 4.3 of the chronology. It may be recalled that Mr Salama contends that he was denied a right to represent Mr Robertson as a union delegate pursuant to cl 38 of the Enterprise Agreement. For the reasons set out in section 5.2 above, I have found that, as a matter of construction of cl 38.1 of the Enterprise Agreement, Mr Salama had no right to advocate for Mr Robertson as a union representative at the Robertson 3 November 2016 meeting. Accordingly, Mr Salama did not have the right he claims to have been denied. As such, this claim must fail.
The second alleged breach of cl 38 arises from the union rights dispute, in which Mr Salama contended that Sydney Trains had acted in breach of the Enterprise Agreement when, in her email of 17 May 2017, Ms Francisco had said “[i]f you require additional time to complete these extra duties, please request it and I will assess each request and accommodate where feasible”. This dispute arose in the context of Mr Salama’s rejection of Mr McClifty’s proposal to award him a “2” at a PDP meeting. Mr Salama sought to explain to Ms Francisco why his performance should not be so graded because, he said, his union duties required up to two hours out of a day. In response, Ms Francisco (at the “Step 1” stage), Mr New (at the “Step 2” stage) and then Mr Walsh (at the “Step 3” stage) each said that if he wanted additional time to attend to his duties, he should request it.
Mr Salama points to cl 38.1(c) of the Enterprise Agreement which requires that Sydney Trains “will allow union delegates reasonable time during working hours to perform the duties listed below”. He submits that Ms Francisco sought to apply the clause by requiring him to perform his primary duties as a Transport Officer and directed the use of down-time for union duties which could not reasonably be utilised by reason of standard operational requirements. The “simple issue”, as Mr Salama characterises it in his closing submissions, is whether Ms Francisco failed to apply cl 38.1(c) because she failed to “allow reasonable time during working hours”. He submits that provided Mr Salama was engaging in consultations it was not open to Sydney Trains to seek to limit the time he spent unless it was beyond “reasonable time”. He submits that because it was not possible to determine in advance whether a consultation would take more than “reasonable time”, Ms Francisco had breached cl 38.1 by seeking to place the restriction she did on Mr Salama’s time to attend to union duties.
The difficulty for Mr Salama’s argument is that it is largely inchoate. Nowhere in his pleaded case or his written submissions does he identify any union duty or HSR duty that he was unable to perform following from Ms Francisco’s 17 May 2017 request that he inform her when he needed additional time to complete his non-Transport Officer duties. He identifies no conduct or event where he, as a union delegate, was deprived of the ability to take “reasonable time during working hours” to represent or consult with a member in the workplace. Indeed, the evidence points in the other direction. In cross-examination, he accepted that he had always been given approval to attend to his duties as a union delegate or HSR representative and, that during the course of 2017, Sydney Trains allowed his requests for 90 hours for him to attend to union duties and other activities not related to his primary responsibility as a Transport Officer.
In this context, Mr Salama seeks to put his argument at a theoretical level, and in particular to assert that, as a union delegate, cl 38.1(c) afforded him a “right” to take “reasonable time during working hours” on union duties without seeking the permission of management and that Ms Francisco refused him that right by making the request that she did.
At that level of abstraction the claim must fail. I accept Sydney Trains’ submission that what constitutes “reasonable time” for the purposes of cl 38.1 needs to be determined on a case-by-case basis having regard to Mr Salama’s circumstances and Sydney Trains’ business: see by analogy Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2019] FCA 2145 at [46] (Collier J). I also accept the submission advanced by Sydney Trains that “reasonable time” within cl 38.1(c) must be compatible with the performance by Mr Salama of his ordinary duties as a Transport Officer. Without any particularisation of the tasks which Mr Salama was said to be performing, or had been denied the opportunity to perform, during working hours, I am not satisfied that Mr Salama has established a breach of cl 38.1(c).
Accordingly, whilst I have accepted that Mr Salama had a workplace right to initiate the DSP procedure as he did on 18 May 2017 in the context of the union rights dispute (as outlined in section 5.3.1.2), to the extent that he contends that the conduct of Sydney Trains amounted to a breach of cl 38, I reject that claim.
8. DISPOSITION
For the reasons set out above, I have concluded that Mr Salama fails in his adverse action claim under ss 340(1) and 346 of the FW Act and also in his claim that Sydney Trains acted in contravention of the Enterprise Agreement contrary to s 50 of the FW Act. As a consequence, the claim against Mr Walsh as an accessory to any breach by Sydney Trains must also fail. In the circumstances, it has been unnecessary for me to decide whether the Court has jurisdiction with respect to the claim against Mr Walsh.
The consequence is that Mr Salama’s claim must be dismissed.
I certify that the preceding three hundred and eighty-seven (387) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate:
Dated: 24 March 2021
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