Singh v Sydney Trains

Case [2020] FCA 1521

FEDERAL COURT OF AUSTRALIA

Singh v Sydney Trains [2020] FCA 1521

File number: NSD 691 of 2020
Judgment of: FLICK J
Date of judgment: 22 October 2020
Catchwords: INDUSTRIAL LAW – unfair dismissal – whether Fair Work Commission properly exercised its jurisdiction –whether Commission took into account whether dismissal was for a valid reason – whether Commission took into account other matters it considered relevant – whether Commission engaged with the gist of the submissions made
Legislation:

Fair Work Act2009 (Cth) ss 381, 385, 387, 575, 576, 577, 578, 591, 593, 596, 601

Judiciary Act1903 (Cth) s 39B

Cases cited:

Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105, (2009) 179 FCR 323

Byrne and Frew v Australian Airlines (1995) 185 CLR 410

Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178

Singh v Sydney Trains [2019] FWC 182

Singh v Sydney Trains [2019] FWC 6620

Singh v Sydney Trains [2020] FWCFB 884

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177, (2017) 246 FCR 146
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 76
Date of last submission/s: 24 September 2020
Date of hearing: 13 August and 21 September 2020
Counsel for the Applicant: Dr J Lucy
Counsel for the First Respondent: Mr M Seck with Ms B Byrnes
Solicitor for the First Respondent: McCullough Robertson Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 691 of 2020
BETWEEN:

SUBEG SINGH

Applicant
AND:

SYDNEY TRAINS

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

FLICK J

DATE OF ORDER:

22 OCTOBER 2020

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J:

  1. The Applicant in the present proceeding is Mr Subeg Singh.  The First Respondent is Sydney Trains.  The Second Respondent is the Fair Work Commission (the “Commission”).

  2. Prior to his dismissal in November 2016, Mr Singh had been employed by Sydney Trains as a Team Leader, Track and Structures.  He had been employed by Sydney Trains and its predecessors for about 34 years.  Sydney Trains took the decision to dismiss Mr Singh by reason of his involvement in two separate safety incidents “while his team was carrying out track measurements”.  That work occurred on 1 August 2015 on railway lines in the Sydney area – one incident being referred to as the Allawah Incident; the other being referred to as the Kogarah Incident.  The decision to dismiss Mr Singh was taken after he had been informed in May 2016 that these two incidents were to be the subject of misconduct allegations and an investigation.  That investigation was undertaken by an external professional safety investigator, Ms Kerry Walker.  An Investigation Report was completed in around…

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AGLC
Singh v Sydney Trains [2020] FCA 1521
Case
[2020] FCA 1521
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Singh v Sydney Trains involved a claim by Mr Singh for unfair dismissal. Sydney Trains had dismissed Mr Singh, who was a team leader, following an investigation into his conduct during two separate incidents on the railway track. The dismissal was based on allegations that Mr Singh had breached safety policies, procedures, and guidelines, resulting in serious and imminent risk to the health and safety of himself and his colleagues. Mr Singh contested the dismissal, arguing it was unfair, and sought relief in the Federal Court.

The court had to determine whether the Fair Work Commission properly exercised its jurisdiction over the matter and if it had correctly assessed the fairness of the dismissal. Central to this was whether the Commission had taken into account the validity of the reasons for dismissal and other relevant matters. Additionally, the court had to consider if the Commission adequately engaged with the submissions made by Mr Singh. The court examined the evidence and submissions to ascertain if the Commission's decision was lawful and just, focusing on the process and reasoning behind the dismissal.

The court concluded that the Commission had properly exercised its jurisdiction and had considered all relevant matters, including the validity of the reasons for dismissal. The court found that the Commission had appropriately weighed the seriousness of the breaches and the impact on workplace safety. It also determined that the Commission had adequately engaged with Mr Singh's submissions. The decision to dismiss Mr Singh was deemed fair, and the application for unfair dismissal was dismissed.

The orders of the court were that the proceeding be dismissed, with the dismissal taking effect as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The proceeding is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is thus concluded that the Originating application should be dismissed. The Show Cause letter & the decision to dismiss If reference is made to the “Show Cause” letter given to Mr Singh in August 2016, the allegations being made by Sydney Trains against Mr Singh and the two incidents the subject of investigation were there expressed as follows: Dear Mr Singh,The Disciplinary Investigation into the allegation that you have committed a breach of the Code of Conduct has now been finalised. The allegation, which is substantiated, and of which full particulars have previously been provided to you, is as follows:AllegationOn 1 August 2015, between Mortdale and Wolli Creek, in your capacity as Team Leader and nominated lookout for a Work Group assigned to complete planned track measurements on the DN Illawarra Local and the UP Illawarra Local, you failed to follow safety policies, procedures and guidelines that apply to your work including failing to carry out your duties safely and reasonably and adequately assess and plan. The particulars of the allegation are:Planning and Carrying Out Work(a)During the course of planning and carrying out the work, you utilised the ‘Lookout Working’ method of protection, in locations that did not have sufficient Minimum Warning Time (MWT) and or Minimum Sighting Distance (MSD) to carry out the work.Incident at Allawah(b)At or around 10.00am, at approximately 13.800 km on the city end of Allawah Station, whilst taking track measurements on Up and Down Illawarra Local lines, you ‘missed’ a warning light and failed to provide adequate warning to the Work Group of approaching train service 613E, on Up Illawarra Local Line, requiring a member of the Work Group to ‘jump out of the way’ of the approaching train.(c) Subsequently, you failed to stop work and implement appropriate control measures.(d)You failed to compile or make any form of formal incident report of this incident at the time these incidents occurred, in accordance with the Network Rules.Incident at Kogarah(e)At approximately 11.46.23hrs, while the Work Group were near the country end of Kogarah station, you failed to take care of the health and safety of yourself and others in your Work Group by allowing work to continue, despite the lack of MWT and MSD, leading to Work Group Leader Mr Cane Kolevski being forced to run across the Down Illawarra Line reaching a safe place at 11.46.26hr, approximately two seconds before train service 900 passed by the spot where Mr Kolevski was working, resulting in a near miss.Having considered the evidence Sydney Trains is satisfied that you engaged in the conduct as outlined in the allegation that is the subject of this matter. By engaging in this conduct you caused serious and imminent risk to the health and safety of yourself and your colleagues.…(formal parts omitted)An application for unfair dismissal – the function entrusted to the Commission Part 3-2 of the Fair Work Act provides for the making of an application by an employee for unfair dismissal.

Ratio Decidendi

Legal Principle Established

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