DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Subeg Singh
v
Sydney Trains
(U2016/12864)

DEPUTY PRESIDENT SAMS

SYDNEY, 21 JUNE 2019

Application for an unfair dismissal remedy – termination of employment – allegations of serious safety breaches by long serving Team Leader of Sydney Trains – two related incidents in 2015 on rail tracks at Allawah and Kogarah – five Team members involved – all disciplined – two dismissed – three investigations and disciplinary investigation – Union involvement and representation – whether incident involved a ‘near miss’ – applicant denied any responsibility or culpability – investigations reveal systemic failures and individual breaches of Network Rules on Safety and Code of Conduct – CCTV footage - Commission inspection of incident locations – conflicting evidence – applicant’s evidence inconsistent with CCTV footage – applicant’s evidence ‘cherry picks’ investigation reports – investigation reports and findings preferred – applicant in breach of Network Rules, Code of Conduct and role of Team Leader and Protection Officer – applicant only seeks reinstatement to former role – no contrition or acceptance of his safety failings incompatible to reinstatement – applicant’s long and unblemished service taken into account, but does not outweigh the seriousness of conduct – valid reason – criticism of length of investigation and suspension period – dismissal not harsh, unjust or unreasonable – application dismissed.

Section	Subsection	Para No
INTRODUCTION	[1]
Reasons for dismissal – the allegations	[7]
THE EVIDENCE	[9]
For Sydney Trains	Mr Andrew Lynn Cross examination	[9] [18]
Mr Benjamin Bonatesta Cross examination Reexamination	[36] [42] [46]
Mr Christopher Polias Mr Polias’ reply to Mr Singh’s evidence Cross examination	[47] [55] [68]
Mr Paul Bugeja The CCTV footage of the Kogarah incident Reply statement Cross examination Reexamination	[91] [93] [112] [119] [155]
Mr Scott Webster	[156]
Ms Amber Sharp	[158]
Mr Singh’s evidence	[159]
The work on Saturday, 1 August 2015	[161]
The Allawah Incident	[165]
The Kogarah Incident	[170]
Cross examination	[181]
SUBMISSIONS	For the applicant Mr Bonatesta Mr Lynn Mr Polias Mr Bugeja Allegation 1 Allegation 2 Allegations 3 and 4 Allegation 5	[226] [229] [230] [232] [235] [243] [247] [248] [249]
For Sydney Trains	[260]
In reply	[289]
CONSIDERATION	Statutory provisions and relevant authorities	[301]
The allegations	[306]
The evidence	[316]
Was Mr Singh’s dismissal ‘harsh, unjust or unreasonable’?	[322]
Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of others) (s 387(a))	[324]
Whether the person was notified of the reason (s 387(b))	[333]
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s 387)(c))	[334]
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))	[335]
If the dismissal related to unsatisfactory performance by the person - whether the person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v Sydney Trains

Details

AGLC: Singh v Sydney Trains [2019] FWC 182
Case: [2019] FWC 182
Decision Date: 21 JUNE 2019

CaseChat Overview and Summary

In the matter of Singh v Sydney Trains, the applicant, a long-serving Team Leader with Sydney Trains, sought an unfair dismissal remedy following his termination. The dismissal was based on two serious safety breaches that occurred in 2015 on the rail tracks at Allawah and Kogarah, involving five Team members, two of whom were dismissed. The applicant denied any responsibility or culpability, but investigations, including reviews of CCTV footage and a Commission inspection, found that the applicant breached the Network Rules on Safety and the Code of Conduct. The primary legal issue before the court was whether the dismissal was harsh, unjust or unreasonable.

The court examined the evidence and the findings of the investigations. The applicant's evidence was inconsistent with the CCTV footage and selectively referenced investigation reports. The court found that the applicant was in breach of the Network Rules, the Code of Conduct, and his role as a Team Leader and Protection Officer. Despite the applicant's long and unblemished service, the court held that his conduct was serious enough to warrant dismissal. The court also noted that the applicant sought only reinstatement, without any contrition or acceptance of his safety failings, which was incompatible with reinstatement. The court dismissed the application, finding the dismissal to be valid and not harsh, unjust or unreasonable.

The court acknowledged the length of the investigation and the suspension period but concluded that these factors did not render the dismissal unjust. The court found that the employer had a valid reason for dismissal, and the process followed was fair and reasonable. The applicant's long service was considered but did not outweigh the seriousness of the conduct. The court upheld the dismissal and dismissed the application for unfair dismissal remedy.

Orders