Singh v Sydney Trains
[2019] FWC 182
•21 JUNE 2019
| [2019] FWC 182 |
| FAIR WORK COMMISSION |
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.
TABLE OF CONTENTS
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 had been warned about that unsatisfactory performance before the dismissal (s 387(e)) | [336] | |
The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal, and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)) | [337] | |
Any other matters (s 387(h)) | [342] |
GLOSSARY OF TERMS
ASB – Absolute Signal Blocking
ATWS – Automatic Track Warning System
Bridge – Lily Street Bridge
CCTV – Closed Circuit Television
Cess – area between the boundary fence and track
Down Cess – areas adjacent to down lines
Down Illawarra Local – track from Sydney to Hurstville
Down Illawarra Main – track from Sydney to Wollongong
DRP – Disciplinary Review Panel
Four foot – area between two rails of tracks
HRCLR – Hazardous Rail Corridor Locations Register (the Register)
Level 3 Report – Highest level of systemic causation investigation where there was a potential to cause serious injury/damage
Level 5 Report – usually the first formal investigation into an incident by the Line Manager
LOW – Lookout Working
LPA – Local Possession Authority
LTA – less than adequate behaviours
MSD – minimum sight distance
MWT – minimum warning time
NCO – Network Controller
NGE200 – Walking in the Danger Zone
NPR711 – Role and duties of Lookouts
NWT300 – Planning work in rail corridors
NWT310 – Lookout working
ONRSR – Office of National Rail Safety Regulator
PD – Position Description
PO – Protection Officer
RSW – Rail Safety Worker authorisations
SEQR – Safety Environment Quality and Risk (Sydney Trains)
Six foot – area between two tracks
SMS – Safety Management Systems
SWMS – Safe Work Method Statement
TOA – Track Occupancy Authority
TWA – Track Working Authority
Up Cess – area adjacent to Up lines
Up Illawarra Local – track from Hurstville to Sydney
Up Illawarra Main – track from Wollongong to Sydney
VMC – Visual Media Centre
WCIU – Workplace Conduct Investigation Unit
WGL – Work Group Leader
WHS – Work Health and Safety
WPP – Worksite Protection Planning Diagrams
DRAMATIS PERSONAE
Keith AITCHISON – Network Rules Specialist
Benjamin BONATESTA – Train Driver
Paul BUGEJA – General Manager, Network Maintenance
Mohammad CHAWDHURY – PO4
Jocelyn GUY – Inspector, ONRSR
Boris IVANOVSKI – PO1
Brad KERR – Disciplinary Investigator
Daniel KINDER – Civil Team Leader, Sydenham
Ron KIRK – Team Leader, Sutherland
Cane KOLEVSKI –PO4
Andrew LYNN - Supervisor
Marion O’CONNELL – Service Manager
Jonathon PARKER – Union official – attended ONRSR interview on 19 or 20 August 2015
Christopher POLIAS – Rail Safety Coach
Ron QUIRK – Line Manager
Amber SHARP – Solicitor, Bartier Perry
Subeg SINGH – Team Leader PO4
Kerry WALKER – Level 5 Investigator
Scott WEBSTER – SEQR Investigator
Tom WILLMOT – Team Manager – Level 5 Investigator
INTRODUCTION
[1] Mr Subeg Singh had been employed by Sydney Trains, or its predecessor entities for 34 years from 9 June 1982, until he was dismissed on 30 November 2016. At the time of his dismissal, Mr Singh was 76 years old and was employed as a Team Leader, Track and Structures, based at Sutherland, New South Wales, under the Sydney Trains Enterprise Agreement 2014 (the ‘Agreement’).
[2] Shortly stated, Mr Singh was dismissed for various breaches of the Transport for NSW Code of Conduct arising from his alleged involvement in two separate serious safety incidents on 1 August 2015 on the rail tracks at Kogarah and Allawah. It will be immediately apparent that the period of time from the incidents for which Mr Singh was dismissed until his actual dismissal was 16 months. During this period, he remained suspended on pay. I shall say more about this unsatisfactory delay in dealing with this matter later in this decision. Nevertheless, it is accepted there were a number of internal investigations by Sydney Trains (notably, the Level 5 and Level 3 Investigations), a National Rail Safety Regulator Investigation, internal disciplinary processes according to the Agreement and a final review of the dismissal decision by Transport for New South Wales (30 November 2016). All of these processes involve strict timelines in order to ensure that a dismissed employee is afforded procedural fairness. I note that up until the point of the final review of Transport for New South Wales in October/November 2016, it appears Mr Singh was advised and represented by the Rail, Tram and Bus Union (the ‘Union’).
[3] On 24 October 2016, Mr Singh filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks orders of the Fair Work Commission (the ‘Commission’), for an unfair dismissal remedy, pursuant to s 392 of the Act; namely reinstatement and lost remuneration. It will be seen that the unfair dismissal application was actually filed beforethe dismissal decision was confirmed by Transport for New South Wales and his dismissal had taken effect. However, by the time the application came before a Fair Work Commission Conciliator on 14 December 2016, Mr Singh had been dismissed. Sydney Trains took no issue with the application being accepted, notwithstanding the obvious filing defect. The application was referred to me for hearing following the unsuccessful conciliation.
[4] On 23 December 2016, in accordance with my usual practice, I issued directions for a hearing of the merits of the application on 20 and 21 February 2017 and conducted a face-to-face conciliation conference on 10 January 2017. At this conference it was apparent that Mr Singh was not interested in any monetary settlement. The only remedy he sought, and which he has consistently maintained, is to be reinstated to his former position, with the payment of lost remuneration. Similarly, Mr Singh has consistently insisted that he had not breached the Code of Conduct, he was not responsible, in any way, for the two incidents on 1 August 2015 and given his age, the unlikelihood of him finding alternative employment and his length of unblemished service, his dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s 387 of the Act.
[5] Regrettably, Mr Singh’s application was not heard until 9 April 2018 and a decision was reserved on 20 August 2018. This delay was due to a number of factors, including a change to Mr Singh’s first legal representative, changes in his subsequent legal representatives, and offers to settle the matter which were not accepted. This resulted in preliminary proceedings and a decision as to whether a binding settlement had been made; see: Singh v Sydney Trains [2017] FWC 4015. An appeal of this decision was upheld and the matter remitted to me for hearing; see: Singh v Sydney Trains [2017] FWCFB 4562. There were also a number of disputed Notices to Produce and Notices to Attend proceedings.
[6] The merits arbitration was finally conducted over eight days, including a site inspection on 6 April 2018. Mr O Fagir, of Counsel appeared for Mr Singh and Mr M Seck, of Counsel appeared with Ms A Sharp,Solicitor (Bartier Perry) for Sydney Trains. Both parties were granted permission to be represented by lawyers, pursuant to s 596 of the Act. I am bound to record my deep appreciation to both Counsel for the incredible preparation involved in understanding and presenting complex, detailed technical material in the context of the statutory provisions the Commission is required to apply in this case. If ever there was case which demonstrated the invaluable assistance the Commission receives from competent, focused and well-prepared lawyers, this must be it.
Reasons for dismissal – the allegations
[7] It is useful at this juncture, to set out the details of the allegations against Mr Singh as set out in the ‘Show Cause’ letter of 5 August 2016 which reads 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 finalized. The allegation, which is substantiated, and of which full particulars have previously been provided to you, is as follows:
Allegation
On 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 allegations are:
Planning and Carrying Out Work
• During the course of planning and carrying about the work, you utilized 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
• 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 to ‘jump out of the way’ of the approaching train.
• Subsequently, you failed to stop work and implement appropriate control measures.
• 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
• 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.
My preliminary view of the appropriate disciplinary outcome for you is as follows:
Dismissal
Management action will be taken to permanently withdraw all your Rail Safety Worker (RSW) authorisations and you will not be eligible for re-instatement of these RSW authorisations.
Before coming to a final decision in relation to the disciplinary outcome, I am giving you the opportunity to make a submission to me within fourteen (14) days in regard to the proposed outcome. Any such submission should include any information that you would like to have taken into account before the final outcome is determined, and should be sent directly to my Sydney Trains email address (email address provided).
A final decision in relation to the disciplinary outcome will be made generally within fourteen (14) days of the receipt of any submission you should choose to make.’
THE EVIDENCE
[8] The following persons provided statement and/or oral evidence in the proceedings:
• Mr Andrew Lynn – Team Member PO4;
• Mr Benjamin Bonatesta – Train Driver;
• Mr Christopher Polias – Rail Safety Coach;
• Mr Paul Bugeja - General Manager, Network Maintenance;
• Mr Scott Webster - SEQR Investigator;
• Ms Amber Sharp – Solicitor, Bartier Perry; and
• Mr Subeg Singh – Team Leader PO4.
For Sydney Trains
Mr Andrew Lynn
[9] Mr Lynn has worked for Sydney Trains since 2008. He was one of the most junior of the five member Team who were taking track measurements on the Up and Down Illawarra lines on 1 August 2015. Contrary to Mr Singh’s statement, Mr Lynn said:
(a) he was not giving orders to Mr Singh throughout the day. Rather, as Mr Singh was quite slow, he was simply reminding him of his duties;
(b) he was one of the two people nominated as Supervisor on the shift. His role was Technical Supervisor. In that role, he checked measurements and recorded the information. As Technical Supervisor, he was not responsible for completing the WPP. He was not the Protection Officer and not the nominated Lookout;
(c) he had known Mr Singh for some time and he had been his Team Leader when he was at Sutherland. As the senior person, Mr Singh was the Team Leader that day. Team Leaders are the leaders of the group and can ‘pull the pin’ at any time if they do not agree with the way things are being done, or believe work is unsafe;
(d) local knowledge is important. However, Mr Singh had been based at Sydenham for many years and as Sutherland and Sydenham are in the same area, any track change updates are sent to everyone at Sydenham and Sutherland;
(e) as Protection Officer 4 (‘PO4’), Mr Singh would know about safe working and any updates; and
(f) he did not alter the Work Protection Plan, as alleged by Mr Singh.
[10] Mr Lynn denied Mr Singh had said to Mr Chawdhury ‘Have you checked the Hazardous Rail Corridor Locations Register (HRCLR)’ and could not recall Mr Singh saying ‘after each measurement the work group should walk on the Up Cess till the next measurement spot. The measurements shouldn’t take place until the protection is in place.’ Mr Lynn denied that Mr Singh had given him detailed instructions about stopping the role of Lookout at different times and on different parts of the track, particularly as Mr Singh had been difficult to understand. Mr Lynn rejected Mr Singh’s evidence that he had told him to be the ‘Inner Lookout’. His role was to take measurements. You cannot do both roles.
[11] Mr Lynn also rejected Mr Singh’s claim that the planning and supervision of work was the responsibility of the PO and the Work Leader. He claimed this is not correct , and that the primary responsibility of the PO is worksite protection and that of Work Leader is planning the job. He denied he was in the best position to determine the appropriate safe working method. He was the least experienced. Mr Singh was the most senior and experienced person and had worked at Sydneham for many years.
[12] In respect to the Allawah incident, Mr Lynn denied he had said to Mr Singh or anyone else, in the pre-job briefing, that he did not have the designs for the Down Local and Up Main. The question of taking measurements on the Up Main only arose when they were on the tracks.
[13] In relation to the work undertaken between the Down Illawarra Local and the Up Illawarra Main, Mr Lynn stated that:
(a) The two measurers, Mr Kolevski and Mr Ivanovski, noticed that there was a narrow clearance between the Down Local and Up Main at the City end of Allawah station. They were aware of this narrow clearance at this point because of their local knowledge. He did not have the same local knowledge, as he had only been at Sydenham for six weeks.
(b) He did not direct the measurers to take the measurement between the Down Local and the Up Main. It was Mr Kolevski and Mr Ivanovski who suggested taking the measurement. They were both WGLs at the time of the incident and more senior than him.
(c) He knew that if there was a narrow clearance, it was important for the work group to check the measurement because of the serious safety issues which can result from a narrow clearance between tracks.
(d) The issue with a narrow clearance is that there may be a situation where for some reason, as a result of a geometric shift, a track may go down or become lower than it is supposed to be. This can mean that if one track is tipping, the tops of the trains may touch as they go past one another. This situation must be avoided.
(e) For this reason, Mr Kolevski and Mr Ivanovski decided to take a quick measurement of the distance between the Down Illawarra local track and the Up Illawarra Main to ensure there was no risk of trains colliding, even though it was not a planned measurement on the day. The measurement was to take less than a few minutes. He knew this based on his experience.
[14] Mr Lynn claimed that the only time he told Mr Singh to take up his Lookout position was when he came over to him to say something about the measurement and not having the designs. He said nothing about safety and did not tell him to stop work (as claimed by Mr Singh). Mr Lynn told him to get back to his Lookout post, because the crew was left vulnerable in an unsafe place. Mr Lynn believed that if he had been so concerned about safety, he should not have walked over to him, as Mr Singh was supposed to be watching the warning light, and had a sound horn and whistle which could have been used. There was absolutely no reason to leave his post as Up Local Lookout. Mr Lynn said he could not recall anyone jumping out of the way of the train on the Up Local. However, they were all very startled when it passed.
[15] Mr Lynn denied that after the incident, Mr Singh had instructed him not to do any measurements on the Down Local or Up Main again. Mr Lynn recalled the measurers ‘getting stuck into Mr Singh’ about what had happened (him missing the warning light). Mr Lynn said he asked Mr Singh twice to report the incident, but he did not. Mr Lynn accepted that there was a general consensus in the Team to return to work. He did not make that decision or direct anyone to do so.
[16] As to the Kogarah incident, Mr Lynn said that no one made any agreement (as contended by Mr Singh) (para 75 Singh statement). Mr Lynn said that after the Allawah incident the rest of the Team agreed that they needed to keep an eye out for Mr Singh, as he missed the warning light and he is very slow. Mr Lynn added that having worked with him in the past, Mr Singh was hard to work with, because he could not work ‘on the tools’ and he could not take, or record measurements. The Lookout role was really all he could do. Mr Lynn rejected Mr Singh’s commentary on the photos he provided. He believed Mr Singh’s photos do not support what he claims they do.
[17] Mr Lynn was concerned that if Mr Singh was reinstated, he would not feel safe working with him as a Lookout, and he would not work on a shift with him.
[18] In cross examination, Mr Lynn agreed he had been reprimanded in 2016 for his role in the 1 August 2015 incident after an investigation and a disciplinary process in which he had been represented by the Union. He had no complaint about the Union’s representation of him, which included a response letter sent by the Union to Sydney Trains in 2016.
[19] Mr Lynn accepted that the safety rules and procedures are very important. He understood that if any employee observes something they consider unsafe, it should be reported and he has always done so throughout his employment. Mr Lynn said that while he had not ‘officially’ reported any breach of safety or the Network Rules by Mr Singh prior to 1 August 2015, he had mentioned to Mr Ron Quirk, his Line Manager, that Mr Singh was ‘a bit slow’ and ‘struggled to keep up sometimes’.
[20] Mr Lynn agreed he did not intervene to stop unsafe work practices, or raise any concerns with his co-workers at Kogarah on 1 August 2015. He had later reported a ‘near miss’, but made no other report that day. Similarly, Mr Lynn agreed he did not intervene to stop any unsafe behaviour or report any such behaviour at Allawah. However, they did stop work after the incident happened (after the train had passed) when the paperwork was not right. As far as he and the Team were concerned, the work at Allawah was carried out in accordance with the safety rules.
[21] In respect to the Kogarah incident, Mr Lynn now accepts that, in hindsight, there were ‘appalling breaches of safety’ (‘things went wrong on that day’). Mr Lynn agreed that for most or all of the time, Mr Singh was in his view at the country end of Kogarah Station. He was probably 50 metres away and moving around. He could see the warning lights and Mr Singh walked towards the work group. The concern at Kogarah was the train on the other track, not the track Mr Singh was on. He agreed that if he had seen Mr Singh doing something wrong, he should have said something, but he did not. Up to the point of the train coming through, he had understood that everything was going according to the safety rules.
[22] Mr Lynn accepted that as he had limited experience in Sydenham, and as he was based at Sutherland, he was not as familiar with local knowledge. Mr Lynn was unaware of whether Mr Singh had been involved in planning the work that day. Mr Lynn did not consider himself to be the Supervisor that day, despite his name being recorded as such on the WPP (see para [9(b)] above) where he agreed he and another were the Supervisors. He explained that he was the ‘Supervisor of the paperwork, of the forms, of the technical information’.
[23] Mr Lynn conceded that there is no position classification anywhere for a Technical Supervisor, or any document which refers to this descriptor. He denied that this was the first occasion (in his witness statement) that he had mentioned he was a Technical Supervisor. He agreed it was not usual to have two Supervisors in a five-man Team and that it may create some difficulties. Mr Lynn acknowledged he did not object at the time to being identified as the Supervisor. He recalled that Mr Kinder had told him on the day that he was doing the paperwork, Mr Chawdhury was the Protection Officer and Mr Kolevski was the Supervisor. Mr Lynn believed he had been consistent about this throughout the investigation and disciplinary process. However, he could not recall who he may have told during these processes, as it was two and a half years ago.
[24] Mr Lynn said that the Team agreed to walk the track from Hurstville to Wolli Creek, despite Mr Chawdhury suggesting the reverse direction. He denied he was asked and refused because he was the Supervisor. Nobody disagreed. He could not recall if Mr Singh had said they should walk from Wolli Creek to Hurstville, despite taking 20 to 30 minutes longer if they walked in the other direction.
[25] Mr Lynn said that as he was not the PO on the day, he was not responsible for:
• planning the work;
• completing the WPP; or
• checking the HRCLR.
Mr Kinder, as Team Leader would have been expected to have planned the work and checked the Register, but he could not be sure if he did on that day. Mr Lynn acknowledged he did not ask Mr Chawdhury, as to whether he had checked the HRCLR. As a result of this incident a new procedure had been put in place requiring the sighting and signing of the Register by the Supervisor. At the time, he had faith in Mr Chawdhury as the PO4 who had an extensive knowledge of the area and was highly qualified. He had no reason to question Mr Chawdhury’s work. Mr Lynn had not acknowledged making any planning mistake or that he should have checked the Register - it was not his responsibility. He agreed he had seen and signed the WPP on 1 August 2015, but did not raise any concerns as to using Lookouts on the stretch, as the other Team members knew what they were doing.
[26] Mr Lynn was referred to operating procedure 06.30 Manage Risks in the Working Environment (page 263). Although he had read it some time ago, he did not understand that it was a Supervisor’s obligation to check the Register before work was carried out on ‘Lookout Working’. Mr Lynn did not accept there was a ‘rule’ which stated a Lookout cannot speak to anyone while they are engaging in Lookout work. He agreed communication within the Team is very important.
[27] Mr Lynn said that the measurements and associated protections at Allawah were to be between Up and Down Locals. Mr Singh was Lookout on the Up Local and Mr Chawdhury on the Down Local. There was no Lookout on the Up Main. He reiterated that Mr Kolevski and Mr Ivanovski had told him they decided to take a quick measurement between the Down Local and Up Main. He had not tried to stop them, as it would only take a few minutes. He claimed that if it had taken longer, there would be a change to the protections. However, he conceded that however long it took, there should have been Up Main protection. Someone had to look at Up Main and it was probably him. In hindsight, it should not have been done in this way.
[28] It was Mr Lynn’s evidence, that if a Team member is suitably qualified as a Lookout they can be utilised on site, even if they are not specified as Lookout for the job. Nonetheless, Mr Lynn acknowledged that taking a measurement on the Up Main without the protection plan in place, was ‘quite unsafe’. He had not intervened to stop them and had let them go ahead, knowing it to be unsafe. He had admitted his mistake and had been criticised and disciplined for his actions. However, Mr Lynn said all the Team, including Mr Singh, knew this was unsafe. Mr Lynn had criticised Mr Singh for not using his horn or whistle. This was the best way to alert the work group; notwithstanding there is no policy or procedure which requires a Lookout to do so.
[29] Mr Lynn agreed that neither of the two employees taking the measurements would have been standing on the Up Local – one would be on the Down Local and the other on Up Main. He speculated about someone wandering on the Up Local, as he believed the incident occurred at that same place. Mr Lynn was referred to his statement in which he said:
‘It's possible that while Mr Singh was talking to me about measurements, one of the measurers stood up, walked onto the Up Local and therefore had to jump out of the way.’
[30] Mr Lynn claimed Mr Ivanovski and Mr Kolevski were startled and jumped back towards the Down Local when the train came through. In his opinion, Mr Ivanovski was about ‘to walk in front of the train’. Mr Lynn denied this was a different story to that which he set out in his statement, and denied ‘making it up’. Mr Lynn added that the measurement was finished when the train came round the bend, because they noticed the warning light had gone out. They had been walking towards the safe place (Cess) – he and Mr Ivanovski were leading the others, who were a couple of metres behind. His statement claimed they should have been on the Up Cess, not the Down Local.
[31] Mr Lynn was questioned about his statement comment: ‘I cannot recall if anyone jumped out of the way of the train.’ He claims they were all ‘very startled’ when the train came past on the Up Local. He agreed and had admitted that the incident should have been reported, but it was not. He had told Sydney Trains he wasn’t ‘100% sure’, but in hindsight, he now believes it was a ‘near miss’. When Mr Lynn was shown his response in the letter from the Union to Sydney Trains explaining his actions, he was asked about the following quote: ‘At no time did Mr Lynn think that the incident was a ‘near miss’’. Mr Lynn denied having seen this letter and then said he could not remember it, as it was two and a half years ago, and he had received many letters in the meantime. He qualified his acknowledgement of what he had said as being his belief at the time (that there was no ‘near miss’, although someone jumped out of the way train it would be a ‘near miss’). He had wanted to report it and admitted he should have. He elaborated:
‘At the time I knew it was an incident; I wasn't sure. Usually when a near miss happens the train driver reports it and a rail incident commander comes out and speaks to the work group and goes through a procedure with the work group. That never happened. The work group spoke about what had taken place and collectively we - we were waiting for the phone call but it never came, and we kept working. But that's where we should have - I should have reported. I did ask Subeg to - twice I said look, we should ring up and report this to our colleagues, but it didn't happen.
…
I think the reason is because we thought we were going to get away with it. That is the real reason. Not because of - basically we didn't want to get in trouble. That's why it didn't get reported.’ (my emphasis)
[32] Mr Lynn said that after the train went through, Mr Chawdhury was contacted by the Signal Box and had been told that the all clear hand signal (to the driver) was not fast enough. They were not told to stop work. I then asked Mr Lynn:
‘What did Mr Singh say to you when you asked him to report the incident?’
and he replied:
‘He said no. He just said no, no, we – I just remember him saying no. I remember I asked him twice to – I’ve asked him again; I said look, we should report this, and he said no, no, we don’t have (sic); the signal box, it’s not a near miss, or something like that.’
[33] Mr Lynn claimed that he had admitted to many people, many times, including to Mr Bugeja, to not having reported a ‘near miss’, when he should have. Mr Lynn could not remember if Mr Singh had said the area was unsafe or that he had asked Mr Singh to report the incident. Mr Singh has said something like – ‘let’s move along, let’s keep going’ – but he did not say anything was unsafe.
[34] In respect to planning the work, Mr Lynn said Mr Singh was the Team Leader and the most senior person on the job. Mr Lynn denied criticising Mr Singh in this respect and accepted Mr Singh was Team Leader at Sutherland, not at Sydenham that day. However, a Team Leader should be involved in, and is expected to be involved in planning the work, wherever they are located.
[35] In respect to the Kogarah incident, Mr Lynn could not recall if he and Mr Singh had agreed that if he moved, he would keep a Lookout. He accepted the Network Rules require that if a Lookout relocates the Team, they must either move the Team to a safe place, or have someone else keep Lookout. He believed that at Kogarah, everyone was keeping an eye on the lights and making sure that someone was doing so at any given time. This was standard practice.
Mr Benjamin Bonatesta
[36] Mr Bonatestawas the driver of the train on run 613E which passed through Allawah at around 80km an hour on the Up Illawarra Local at approximately 10.02am on 1 August, 2015.
[37] Mr Bonatesta refuted Mr Singh’s claim that the Team was on the Down Local. He denied that Mr Singh had acknowledged the train horn, by raising his right arm when it went by. He said the Team was in the ‘six foot’ after one of them ran off the track he was on. Mr Singh’s hands went up at the same time as he blew the train whistle (horn). He had done so because he saw Mr Singh leave the ‘four foot’ of the Up Local. Mr Bonatesta denied Mr Singh’s claim that ‘no one jumped out of the way of the train.’ Mr Bonatesta was referred to a photo (SS04) and said the incident did not happen close to, or under the Lily Street Bridge. It was further up the track toward the city near two overhead gantries. It was wrong to suggest the workers were on the Down Local. One was running off the Up Local and the others were in the ‘six foot’. He could not recall anyone on the Down Local, although his focus was on the worker he thought he might hit (on the Up Local). Mr Bonatesta annexed a copy of his Stopping Pattern Report for that day. He wrote on the document shortly after calling the Signaller – ‘Track worker on my line Near Miss!!!’
[38] Mr Bonatesta gave evidence of the call he made to the Signaler which was recorded. The transcript of the audio reads:
‘Sydenham: 6 1 3 Echo Sydenham receiving.
Driver: 6 1 3 Echo. Sydenham this is 6 1 3 Echo.
Sydenham: Yes mate.
Driver: Yeah mate. I’ve just had a pretty close call between Allawah and Carlton there.
Sydenham: Between Allawah and Carlton?
Driver: Yeah. There’s some track workers and as I come (sic) round the corner there was a guy right on my track.
Sydenham: Yep.
Driver: And, um, you know, first thing I saw was him jumping out of the way. I went into full service and pulled the whistle but he was out of the way.
Sydenham: OK.
Driver: Maybe that Lookout needs to move to a better position or something. It’s pretty bad.
Sydenham: Yeah OK. All right (sic). Um, are you OK to continue?
Driver: To be honest I’m a little shook up actually. Yeah.
Sydenham: OK. Are you considering it a near miss?
Driver: Um, I don’t know if I’d consider it a near miss. He was well out of the way.
Sydenham: Yeah.
Driver: 500 metres.
Sydenham: Yeah.
Driver: Just give (sic) me a bit of a scare that’s all.
Sydenham: Bit of a startle yeah. OK then. All right (sic), I’ll, um, I’ll, I’ve got a list of people working on track today so I’ll find out who it is and I’ll advise them to move their Lookout.
Driver: Yeah, yeah.
Sydenham: OK.
Driver: Good idea. Thanks mate.
Sydenham: All right (sic). Thank you.
Driver: 6 1 3 Echo out.
Sydenham: Sydenham out.’
[39] Mr Bonatesta said it was clear from listening to the audio, that his voice was shaky, as he was very shaken up. He had repeated ‘613 Echo’ unnecessarily, which demonstrated he was shaken. Mr Bonatesta made the following comments on the radio call:
‘(a) when I said “there was a guy right on my track”, the image I have is of a worker with his body side on to me as I was travelling on the Up Local. The worker had his left foot planted on the outside of the right hand rail of the Up Local 4 foot and his right foot in mid air behind him as he left the 4 foot in a running fashion in the direction of the 6ft. He was running and trying to get people out of the way in a hurry. I saw he had something in his hand. Some sort of pole. In my mind, the other workers on the track were waving him over at the same time. I didn’t see the guys in the 6ft until the guy from my track joined them. I recall seeing the worker with one foot on the 4-foot and one foot on the 6-foot. As soon as I saw that I thought he’s only just getting out of the 4 foot.
(b) when I said “first thing I saw was him jumping out of the way”, I meant how I describe it above;
(c) when I said “I went into full service…”, that meant that I applied maximum brake application. I did breaks first and then whistle. You think about what is going to help the situation more quickly. I saw the guy leaving my track so applied maximum brakes;
(d) when I said “Maybe that Lookout needs to move to a better position or something. It’s pretty bad” I came around the corner at 80 km and came right on top of them, it all happened so quick.
14. In reviewing the transcript, I can see that I said:
(a) “I’ve just had a pretty close call …”;
(b) “He was well out of the way”
(c) “That the worker was 500 metres away”.’
[40] Mr Bonatesta further described his feelings that day:
• his head was racing as he thought he had almost killed someone. He was very shaken up;
• thinking back, he could not possibly have been coming around a blind corner and the incident happened 500 metres further on;
• in retrospect, he should have relinquished his shift at Central; and
• it was definitely an incident that was ‘too close; too close to someone dying’.
[41] Concluding, Mr Bonatesta said that he regularly saw workers in danger zones – it was commonplace. He had called the Signaller at the time because he believed that the Team were in a ‘bad location’ and he had almost hit someone.
[42] In cross examination, Mr Bonatesta was asked about his understanding of the procedure when a Driver is involved in a ‘near miss’. The incident must be reported immediately to the Network Controller (‘NCO’), either the Signaller or the Trains Controller. Usually the work stops, and an investigation is commenced. He agreed a ‘near miss’ is a very serious matter which must be made clear to the NCO, either to the Signaller or the Trains Controller. However, it is not as simple as just reporting the incident, as the Driver remains in charge of the moving train and is required to be aware of what signal he/she had passed or is approaching.
[43] Mr Bonatesta conceded that until his statement for these proceedings, he did not tell anyone the next day (or at any time), that he was involved in a ‘near miss’ on that day. However, he had made a note to that effect on his Stopping Pattern Report and in the radio call he did not confirm it was (or was not) a ‘near miss’. He accepted all radio communications should be clear, concise and unambiguous, but he was very shaken at the time. Mr Bonatesta described the situation that day at Allawah. Mr Singh’s photos of the track do not reflect the location he was at - away to the left between the Up and Down Illawarra Main. The workers were further down the track from the photo Mr Singh attached to his statement.
[44] Mr Fagir explored with Mr Bonatesta whether the person he saw in danger was walking, running or jumping out of the way. He said he went into full service (full brake) and pulled the whistle, although the worker was out of the way. Mr Bonatesta denied his actions and conversations with the Network Controller were inconsistent with a ‘near miss’. He explained that the train has two brake systems – a service brake and an emergency brake. He said he did not go into emergency brake because he saw the worker move away from the line. He accepted that if he had been in a position of the train being likely to hit a person, he would have gone straight to the emergency brake. However, by using the service brake, and then by the time the emergency brake might have been necessary, the worker had already moved. Mr Bonatesta insisted that he was not mistaken about someone being on the track when he came around the bend. He did not accept he was wrong about the worker being on the Up Local line. He denied that his actions were inconsistent with his comment that ‘It was too close to someone dying’. He denied the comments he made in his statement, two and a half years after the incident, were ‘embellishments of the true position.’
[45] Mr Bonatesta said he had not been interviewed, or involved in any of the investigations in respect to this matter, until approached to make a statement for these proceedings in 2018.
[46] In reexamination, Mr Bonatesta provided further details as to the train’s braking systems, what he did on the day and why. He said there was no way the train could have stopped completely. He recalled passing the workers and pulling the brake down. Referring back to Mr Fagir’s questioning of his actions being inconsistent with his statement, Mr Bonatesta explained:
‘When your learned friend was speaking to me and asking me those questions, I thought he was referring to mainly the radio conversation and my statement combined. Like I said, during the situation, making a judgment call on all those things while concentrating on my location, on how the train is acting, is very difficult, and making sure that that information is transferred across to the Signaller is the most important thing, that something is done about that. By the end of my radio conversation I was confident that they understood the situation and that they would do something about that. When you look back at a situation like this, when you're asking about it, as I was that day and earlier this year, you can judge the situation a lot better put in retrospect when you're not thinking about so many things. That's why even though there is, I can reconcile those.’
Mr Christopher Polias
[47] Mr Polias relied on his statement made on 3 May 2016 in relation to the disciplinary investigation into Mr Singh’s conduct. I shall come back to that statement in a moment. In his statement filed for these proceedings, Mr Polias said that in his role as Rail Safety Coach he reviews and assesses WPPs and work site protections audio every three months, to assist in improving the performance of Signalers and POs. As a Team Leader and qualified PO4, Mr Singh was required to undergo extensive and ongoing training on the application and changes to Network Rules and procedures, in order to retain accreditation. In late 2014, Mr Singh participated in a two-day reaccreditation program and provided four WPPs for Mr Polias to review.
[48] Mr Polias set out his understanding of the incidents on 1 August 2015 as involving the Team taking track measurements. Mr Singh was assigned the Lookout on the Up Local Illawarra line. Mr Polias said that Lookout working can be used for track measurements, unless the parts of the track are identified on the HRCLR prevents Lookout work, or if the Team deems it inappropriate or unsafe. Careful assessment is particularly necessary where measurements are taken on track bends where visibility might be restricted and requires appropriate MSDs. Mr Polias claimed that both incidents were ‘near misses’. At Allawah, there was so little warning that the Team was forced to jump on the Down Local Illawarra line (not a safe place) to avoid being hit. In the Kogarah incident, the Team member only cleared being hit by the train by about three seconds.
[49] Mr Polias described the five graded levels of worksite protection on track, according to NWT300:
‘(a) Lookout Working: one condition of using the Lookout Working method is that Lookouts are not to work continuously at the same location for more than 60 minutes. Further, to use Lookout Working, it must be considered that Minimum Warning Time is attainable and that there are safe places for workers to move to should they be required to move out of the way of an oncoming train.
(b) Absolute Signal Blocking (ASB): is for working in danger zone by maintaining controlled absolute signals at STOP to exclude rail traffic from a portion of the track.
(c) Track Work Authority (TWA); authorizes occupation of a defined portion of track between rail traffic movements. It does not give exclusive occupancy of the defined portion of the track.
(d) Track Occupancy Authority (TOA); this would exclude traffic from a certain area.
(e) Local Possession Authority (LPA): authorizes closure of a defined portion of track for a specified period.’
[50] Mr Polias believed that the Team should not have used the lowest level of protection ((a) above). At the very least, the Team should have used ASB. Approval for this would not have been difficult. Mr Polias based this conclusion on a walk-through of the location and after viewing the CCTV footage of both the Allawah incident and the Kogarah line.
[51] Mr Polias had observed Mr Singh on the Up Local Lookout, walking on the track facing the wrong direction, with his back to approaching trains. This was dangerous and an unacceptable safety risk. As the Lookout, Mr Singh’s sole duty was to ensure he was in a position to see an approaching train and give the required warning, so the Team could be in a safe place for the train to pass. Mr Polias believed that given Mr Singh’s position and the curvature of the line, it would have been impossible for him to give enough warning to his Team to reach a safe place. This demonstrated a complete disregard for his own safety and that of his Team.
[52] It was Mr Polias’ view that the following issues contributed to the cause of both incidents:
‘(a) The Hazardous Rail Corridor Locations Register provided that there were particular parts of the track where using Lookout Working was inappropriate, due to lack of minimum sighting distance and safe places.
(b) Even without checking the Register, it should have been obvious by the curvature of the track that minimum sighting distance was not attainable, making the use of a Lookout inappropriate and dangerous.
(c) The work undertaken on that day was a mobile (moving) worksite which meant that the team should have reassessed the appropriateness of using Lookout working at each location where they were taking measurements.
(d) There was a lack of safe space available adjacent to the track where the Kogarah Incident occurred, increasing the danger of using Lookout working.
(e) Due to the lack of safe space, the Lookout was forced to walk down the track in the danger zone. The Lookout should always be positioned in a safe space.
(f) The near miss at the Allawah Incident should have prompted the team to realise that Lookout working was not appropriate and continuing to use it was placing them at significant and unnecessary risk.’
[53] Subsequent to the incident Mr Polias reviewed the WPP prepared by Mr Chawdhury. He identified a number of issues Mr Singh should have identified and challenged, given his seniority and experience. These were:
(a) The MSD which is stated on the WPP was not achievable for the whole area of the track the Team was working on.
(b) The diagram attached to the WPP shows an assessment of all tracks, including the Up and Down Main Illawarra Line, which the Team did not work on.
(c) There is no definite location allocated for the safe place, as is required.
Mr Polias believed Mr Singh should have queried the WPP in the pre work brief, as it did not refer to the Register; rather, he opted to use Lookout work, despite it being inappropriate in the circumstances.
[54] As mentioned earlier, Mr Polias provided a more detailed statement during the investigation and referred to the following documents relevant to the matter:
• The HRCLR in respect to the location of the two incidents.
• Network Rules NWT300. NWT300 identifies 21 factors the PO must consider when making an assessment of work in the rail corridor:
• ‘work will affect track under the control of different Network Control Officers or Access Providers;
• appropriate numbers of Competent Workers are available to protect the work;
• easily-reached safe places are available for workers;
• the sighting distance and speed of approaching rail traffic allows sufficient warning time to be given by Lookouts;
• it is possible to close the affected line during the work;
• there will be rail traffic on adjacent lines;
• rail traffic will travel on an adjacent line in both directions over a unidirectional line;
• there will be rail traffic between and/or within worksites;
• signals are available to protect worksites;
• other work on track will affect the worksites;
• there is safe passage to and from worksites;
• there is access to the Rail Corridor by the public;
• there is a risk to workers from road traffic;
• the work will intrude on level crossing;
• the line is electrified;
• the line is track-circuited;
• the formation of the line and the location will affect the work;
• effective communication is available;
• equipment communication is available;
• equipment used in the work will intrude into the Danger Zone;
• other group need to be told about or involved in the work; and
• the level of noise at the worksite will be excessive.’
• Network Rules NWT310 ‘Lookout working’ This provides as follows:
‘Lookout Working
Purpose To prescribe the rules for working in the Danger Zone without a work on track authority using Lookouts as the only safety measure.
General If a safety assessment show that it is safe, some kinds of work may be done in the Danger Zone without a work on track authority. Lookout Working is one of those methods of working.
WARNING If the safety assessment shows that a work on track authority is necessary, work must not be done using Lookouts as the only safety measure.
If Absolute Signal Blocking (ASB) is available, it is the preferred method.
WARNING Work on the overhead wiring, or work that breaks the track or alters track geometry or structure must not be done using Lookout Working as the only safety measure.
Only light, non-powered hand tools may be used for work using the Lookout Working method.
Safety measures Lookouts are the only safety measure used in this method of working in the Danger Zone.
An easily-reached safe place must be available if this method is used.
Workers must be able to remove themselves, tools and materials to a safe place immediately when told to do so by a Lookout.
Protection Officer There must be a Protection Officer for the period of the work.
The Protection Officer’s primary duty is to keep the worksite and workers safe.
The Protection Officer must be satisfied that other work will not interfere with protection duties.
The Protection Officer must:
• tell workers about the locations of safe places, and
• determine the number of Lookouts needed to protect the work, and
• be the only person to speak to Network Control Officers about safety arrangements.
Placing Lookouts
The Protection Officer must:
• make sure that the location of Lookout(s) and the visibility conditions give Lookouts a minimum of two seconds to see approaching rail traffic, and
• make sure that when rail traffic approaches, Lookouts can warn workers in time to allow them to:
• react to the warning of the approach of rail traffic, and
• move themselves and their equipment to a safe place and remain there for 10 seconds before the rail traffic arrives.
To give enough warning time, one additional Lookout may be used and an additional five seconds of warning time must be added to any calculation of total time to see, move and be in a safe place for all workers and their equipment.
WARNING If these minimum warning time calculations cannot be satisfied, then Lookout Working must not be used.’
• Network Rules NGE200 prescribes rules for walking safely in danger zones.
• Network Rules NPR711 identifies the role and duties of Lookouts.
‘Lookouts
Introduction Lookouts give warning about rail traffic movements to workers in the Danger Zone.
WARNING Lookouts do no work other than look for, and give warning about, the approach of rail traffic.
Equipment Lookouts need:
• two independent forms of effective communication with workers, and
• if necessary, an audible warning device.
Additional Lookouts Protection Officer
1. Decide the number of Lookouts needed to keep watch for rail traffic and give warning.
2. If necessary, place an additional Lookout before the Lookout closest to the worksite to give earlier warning about approaching rail traffic.
NOTE
The maximum number of Lookouts permitted in any running-direction is two.
The additional Lookout must stay within sight and hearing of the Lookout closest to the worksite.
Giving Warning NOTE
Lookouts must not use radios or telephones to warn workers.
Lookout
1. Agree with the Protection Officer how workers will be warned about the approach of rail traffic.
2. Stand or walk in a safe place where you can see approaching rail traffic and be within sight and hearing of the workers. If you cannot do both of these safely, tell the Protection Officer.
3. Keep a continuous Lookout for the approach of rail traffic.
4. If you see or are told that rail traffic is approaching, warn the workers immediately.
5. Only if workers and their equipment are in safe places, face the approaching train or track vehicle and handsignal ALL CLEAR to the Driver or track vehicle operator.
6. Wait for the Driver or track vehicle operator to acknowledge the ALL CLEAR handsignal.
7. Make sure that the line is clear before telling the Protection Officer that it is safe for work to resume.
8. Tell the Protection Officer if you need to move from your designated position, and only move if all workers and their equipment are in a safe place, or a new Lookout is in position.
9. Tell the Protection Officer if conditions such as visibility change.
Effective date 19 December 2010’
(f) Sydney Trains Safety Management System Operating Procedure 06.13: Manage risk in the working environment.
(g) Operator Specific Procedures – Reporting Incidents.
(h) Railsafe – Network Incident Notice.
(i) Allawah Level 5 Investigation Report
(j) Incident Information Management System – Incident Report.
(k) Kogarah Level 5 Investigation Report.
(l) Kogarah Level 3 Investigation Report.
(m) WPP for Kogarah incident.
(n) Detailed line diagrams.
(o) Still photo of Team taken at 11.45am, 1 August 2015.
Mr Polias’ reply to Mr Singh’s evidence
[55] Mr Polias provided a detailed response to Mr Singh’s statement. In respect to the photographs provided by Mr Singh, Mr Polias did not accept that the Allawah incident occurred at the location claimed by Mr Singh. These photos placed the Team close to the Lily St Bridge which is identified at 13.595km and the Bridge’s stanchion at 13.533km. By reference to the CCTV footage, other photos, diagrams, driver maps and aerial views, Mr Polias concluded the incident occurred at 13.445km – some 150 metres further on than Mr Singh suggested. The video footage at screenshot 9.53.29 reveals the following:
‘A –Mr Singh is observed to have a sound horn over his left shoulder (used as a warning device);
B – the overhead bridge referred to in paragraph 10(a) above (noting that the bridge pylons were subsequently removed in 2016 and are no longer there);
C – the signal location referred to in paragraph 10(c) above;
D – the permissive signals referred to in paragraph 10(d) above;
E – the 4 foot of the Down Local directly below the train signals, as referred to in paragraph (d) above;
F – the Up Local;
G – the Down Local;
H – the Up Main Illawarra line;
I – the Down Main Illawarra line’
[56] At screenshot 9.55.40 the following is shown:
(a) Mr Singh standing next to Down Local with his back to the Up Local, and not within sight of the warning light.
(b) Two Team members standing in the ‘four foot’ of the ‘Up Local’ close to the permissive signal.
(c) All Team members are walking in the direction of the City, meaning any train on the Up Local is behind them.
[57] At 9.55.50 the Team are in the ‘four foot’ of the Up Local but then the Team is not visible until 11 seconds later when they are seen in the ‘six foot’ between Up Local and Down Local, under the signal. They do not reappear.
[58] At 9.57.22 a train enters the screen on the Up Main, but disappears due to the curvature of the track. At screenshot 9.57.56 Mr Singh is seen standing to the left of the Down Local looking in the country direction of the Up Local. Three seconds later he turns his back to the Up Local and continues walking in the direction of the City. He is no longer visible at 9.58.04. Mr Polias rejected Mr Singh’s claim that he was standing on the Up Cess and watching the warning lights for the Up Illawarra Local. What is reflected in the footage is that at no time, in the five minute period between leaving the platform at 9.53.26 until he is not visible at 9.58.06, is he in the Up Cess. Rather, Mr Singh is seen:
(a) standing near the signal utilities box at the end of the platform until 9:55:34, noting that there is a warning light at that location;
(b) walking up the ‘six foot’ closer to the Down Local, with his back to the Up Local. During this time, there is another warning light but that is in front of him and the light faces the city end, which means that given the direction he was walking, it was necessary to stand in front of it and look back to see the warning light;
(c) for the first time, turning to the side to look for traffic on the Up Local at 9:57:55AM.
[59] By reference to the photos, Mr Polias identified three warning lights. They all face towards the City on the Up Local. Therefore, a worker would need to stand on the City side of the warning light and looking back to it in the country direction.
[60] Mr Polias said that despite Mr Singh’s evidence that the Team had taken ‘a couple of track measurements…’, the CCTV footage shows that at no stage during the period were members of Team seen doing so. Nor were any of the Team members seen on the Up Main (para 54 of Mr Singh’s statement). Mr Polias claimed that at no time was Mr Singh standing where he had claimed in the ‘four foot’ of the Down Local. He was standing at 13.445km. Even if he had been standing where he says he was, he did not have MSD for the Up Main because of the curvature of the track, the Bridge pillars (now removed) and the platform. To ensure MSD, he needed to be 475 metres away (based on track speed of 85km). He was only 142 metres away. Moreover, even if he had walked over to the workers to save them from being hit by a train on the Up Main, he would not have had MSD to get them to a safe place.
[61] Mr Polias said that in any event, if he had to intervene to stop an unsafe situation by walking over to Mr Lynn, this was unsafe and inappropriate. Rather, he should have:
(a) Blown his whistle or pressed his sound horn, noting that from the CCTV footage, Mr Singh was wearing a sound horn over his left shoulder. Blowing the whistle or using the horn signifies to the workers that they must immediately stop what they are doing and move to a safe place. At Team briefings, work members are told that when the Lookout blows this whistle or uses the sound horn, this means they must move to the designated safe place. The designated safe place was the Up Cess as set out in the WPP.
(b) Once all the workers were in a safe place, Mr Singh should have informed the Protection Officer of his concerns about the unsafe practice. This is based on NPR711, page 3, point 8.
(c) A Lookout should not change their nominated Lookout position unless they do so from a safe place, and in consultation with the Protection Officer, who was Mr Chawdhury. This is based on NPR711, page 3, point 8.
(d) Even if his whistle was not available or not working for some reason, he should have remained at his post, in his safe place in the Up Cess, and used the sound horn to get the attention of workers.
Further, Mr Polias believed Mr Singh should have stopped the job and reported the incident to Mr Chawdhury and then to Mr Kinder and Mr Willmot.
[62] By leaving his position as Lookout he failed to follow correct procedure as he did not remove the Team from the ‘high risk’ position he alleged they were in. He took his attention away from the Up Local and did not have MSD to protect the Team. Further, by alleging conversing with Mr Lynn, this was a distraction. He should have communicated his concerns from a designated safe place, and not by standing in the ‘four foot’ of the Down Local.
[348] Given Mr Singh’s own evidence, I could not be at all confident that he would not act in a similar way in similar circumstances, or take a similar cavalier approach to his responsibilities as Team Leader. He ignored his responsibilities as a PO4 for which he had been trained. He disregarded the cardinal safety policies and procedures of Sydney Trains, notwithstanding he claimed he had a good knowledge and awareness of them. His belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer’s trust and confidence in him has been permanently destroyed.
[349] Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[350] Relevant to the above object, in BHP Coal Pty Ltd t/a BMA v Schmidt[2016] FWCFB 1540, a Full Bench of the Commission said at [8]:
‘The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.’
[351] For the above reasons, I find that Mr Singh’s dismissal on 30 November 2016, was neither ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. His dismissal was not unfair. Accordingly, his application for an unfair dismissal remedy is dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both Mr Singh and Sydney Trains.
DEPUTY PRESIDENT
Appearances:
Mr O Fagir of Counsel, for the applicant.
Mr M Seck of Counsel, and Ms A Sharp, Solicitor, for the respondent.
Hearing details:
2018.
Sydney,
6 April (site visit), 9 April, 10 April, 11 April, 23 July, 24 July, 25 July, 20 August, 23 August.
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