Stephen Grantham v NSW Trains

[2021] FWC 5995

[2021] FWC 5995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Grantham
v
NSW Trains
(U2021/2894)

DEPUTY PRESIDENT EASTON SYDNEY, 27 SEPTEMBER 2021

Application for relief from unfair dismissal - alleged abuse of a manager - alleged threat to a manager - misconduct - valid reason found - dismissal was harsh and unreasonable - remedy - reinstatement.

[1] On 8 October 2020 Stephen Grantham allegedly told his supervisor Greig French to “get fucked”. A few minutes later, when Mr French tried to talk to Mr Grantham about his outburst, Mr Grantham told Mr French “I’m trying hard not to punch you in the face, you need to step away from me”. Mr Grantham accepts that he said the words “get fucked” but denies that the words were directed to Mr French. Mr Grantham also accepts that he said the words “I’m trying hard not to punch you in the face, you need to step away from me” but denies that those words were a threat.

[2] Mr Grantham regretted his words almost instantly and tried to apologise to Mr French within a few seconds of the incident. Mr French did not deserve to be treated this way by Mr Grantham and Mr French was entitled to expect that NSW Trains would take swift and decisive action to prevent any repeat behaviour.

[3] Mr Grantham worked for NSW Trains for 22 years without ever being subject to formal disciplinary action. Mr Grantham was suspended with pay on the day of the incident and NSW Trains took four months to complete an investigation into the 4-minute incident. During the investigation Mr Grantham made unconditional expressions of remorse, acknowledged his shame and regret about the incident, acknowledged the potential harm caused by his words and raised significant mitigating circumstances.

[4] NSW Trains dismissed Mr Grantham because his conduct on 8 October 2020 was a “significant and serious” breach of its Code of Conduct.

[5] On 7 April 2021 Mr Grantham made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with NSW Trains. Mr Grantham seeks reinstatement to his former position.

[6] Both Mr Grantham and NSW Trains were represented by Counsel pursuant to leave granted under s.596 of the FW Act. Mr Boncardo appeared for Mr Grantham and Ms Perigo appeared for NSW Trains.

[7] Rarely does an employee say “get fucked” to their supervisor and expect to keep their job. Mr Grantham’s behaviour was unacceptable.

[8] NSW Trains found that the words “I’m trying hard not to punch you in the face, you need to step away from me” were a threat to Mr French. In my view this finding was completely wrong. I am satisfied that Mr Grantham said these words to de-escalate the situation, and the CCTV footage is unambiguous in this regard. Mr Grantham was upset during the conversation but he did not move at any point to threaten Mr French.

[9] NSW Trains could have, and should have, taken swift and decisive action to deal with Mr Grantham without dismissing him from his employment. For the reasons set out below, I find that Mr Grantham’s dismissal was harsh and unreasonable.

[10] NSW trains could have and should have taken swift steps to restore the long-standing working relationship between Mr Grantham and Mr French but did not do so. Instead Mr Grantham was left languishing under suspension for a long period of time and Mr French was unaware of Mr Grantham’s remorse and unconditional apology. For the reasons set out below I have decided that the appropriate remedy is that Mr Grantham is reinstated.

The incident on 8 October 2020

[11] Ultimately there is little dispute about what occurred on the morning of 8 October 2020 that led to Mr Grantham’s dismissal. Mr Grantham met with his supervisor Mr French shortly before 9:00am for the purpose of Mr Grantham signing off on a proposed Personal Conduct Improvement Plan (“PCIP”). The proposed PCIP process is relevant to the context in which the meeting took place and I make observations about NSW Trains’ mishandling of the PCIP below.

[12] The meeting occurred in Mr French’s office on the platform of Lithgow Railway Station. Only Mr Grantham and Mr French were present. There are at least two desks in Mr French’s office. Mr Grantham and Mr French sat on chairs in the middle of the office with no furniture or other items between them.

[13] The two men had worked together for a long time and had known each other for 15 years. At the time of the incident they were friends, Mr French’s partner was Mr Grantham’s ex-wife, although neither man seems to bear any animosity about that.

[14] After finishing the necessary discussion regarding the PCIP Mr Grantham raised the controversial issue of the New Intercity Fleet (“NIF”) trains. Prompted by a question from Mr Grantham, Mr French said that he thought the technology in the NIF would be safe. A brief discussion of the safety of the NIF ensued and then, according to Mr Grantham’s version of the conversation (written 6 hours after the event) the following occurred:

“I realised that Greig could not or would not say that in his opinion that there is room for improvement in the proposed operating model.

I realised that I have an unresolvable difference in opinion with Greig regarding safety of customers.

Without speaking, I stood up and went to the office door and started to leave.

After passing through the door, I started closing the screen door. Greig was following me trying to get my attention. I was feeling very emotional, upset and disappointed that a manager whom I had previously considered to be supportive and safety oriented no longer supported reducing risk to the lowest level.

I said: “Get fucked. Sorry. I’m so sorry. I don’t mean that.”

I had instantly realised that I had said something hurtful in my emotional pain and regretted that I had Greig followed me out of his office. I was shaking with the effect of adrenaline.”

[15] Mr French’s account of this conversation is slightly different:

“[Mr Grantham] became angry when I disagreed with an aspect of safety relating to the NIF. He said words to the effect of “get fucked” whilst still seated and looking at me and then stormed out of the office.

I was surprised and shocked at Mr Grantham’s sudden outburst. However, I followed him onto the platform as I wanted to discuss what had just happened and inform him that his behaviour was not appropriate.”

[16] The two key differences between the respective accounts are whether Mr Grantham was seated when he said the words “get fucked”, and whether Mr Grantham said the words “sorry, I’m so sorry. I don’t mean that” while still in Mr French’s office or at all.

[17] Not much turns on these two points of difference in my view. Even if Mr Grantham did immediately apologise, the proverbial genie was out of the bottle when he used the words “get fucked”. Similarly, it does not make a large difference to the situation if Mr Grantham said the words “get fucked” while seated and then immediately left, or if he said those words as he was leaving the office. On either version the words were said in Mr French’s office and then the very next thing that happened was that Mr Grantham left the office.

[18] In light of the evidence before me, and even though it makes no difference to my overall findings, I am inclined to accept Mr French’s evidence that Mr Grantham did not apologise while in Mr French’s office. I am inclined towards this view because of the conversation that followed outside the office on the platform where, on both men’s versions, Mr Grantham did not apologise. Mr Grantham says that a conversation took place after Mr French followed him out of the office and onto the platform, and that it was after the conversation on the platform (and once Mr French had returned to his office) that Mr Grantham tried to apologise.

[19] If Mr Grantham had apologised as soon as he had said the words in Mr French’s office, it seems more likely that he would have again apologised on the platform after Mr French had pursued him.

[20] Secondly, I am inclined to accept Mr Grantham’s account that he said the words “get fucked” as he got up to leave rather than while he was still seated. For the whole of the conversation straight afterwards on the platform, Mr Grantham did not want to engage in further conversation with Mr French. I am inclined to the view that Mr Grantham said “get fucked” as some kind of final word on the topic and said it because he no longer wanted to engage in the conversation with Mr French in the office or at all. Therefore, I find it is more likely than not that Mr Grantham said the words as he was leaving the office.

[21] A second conversation took place within a few seconds of the first. Mr Grantham’s account of the conversation is as follows:

“Greig followed me out of his office. I was shaking with the effect of adrenaline.

He said: “Stephen, come back. You can’t say get fucked to me.”

I said: “Then take me off the road. I’m not okay.”

He said: “I’m going to have to report what you said.”

I tried to walk away from him. Greig followed me along the platform.

I said: “Go away. Leave me alone.”

I tried to walk further up the platform. Greig followed me again.

He said: “Try to calm down.”

My hands were trembling. I was trying to keep them still by squeezing and unsqueezing them.

I said: “I’m trying to not punch you in the face.”

I had no intention of hurting Greig nor of punching Greig. It had not crossed my mind to physically do anything to him. I was trying to get away. I just wanted to be alone. I dislike violence. To even think that I said this thing I regret intensely.

He said: “I’m going to report that you said that.”

Greig walked away. I didn’t follow him.”

[22] Mr French’s account of the same conversation is as follows:

“I was surprised and shocked at Mr Grantham’s sudden outburst. However, I followed him onto the platform as I wanted to discuss what had just happened and inform him that his behaviour was not appropriate. On the platform, Mr Grantham continued to engage in a heated exchange with me. He then said words to the effect of “I’m trying hard not to punch you in the face, you need to step away from me.” There is CCTV footage capturing the altercation on the platform. I told him that I would need to report his conduct and then went to my office.”

[23] CCTV footage of the conversation on the platform shows Mr Grantham leaving the office and walking down the platform, and then both men moving carefully around each other as they talked. Initially Mr Grantham walks away from Mr French’s office, Mr French comes out of his office and takes only one or two steps and calls out to Mr Grantham. Mr Grantham then stops and turns to talk to Mr French, predominantly with open palms although he briefly clenches his fists in visible frustration or exasperation. Mr French then moves towards Mr Grantham but maintains a respectful distance from him and then moves slightly to the side of the area to leave Mr Grantham a wide passage to return towards Mr French’s office. Mr Grantham then walks back past Mr French and stops one or two paces past him. Mr Grantham then turns away from Mr French and takes another three short steps. At this point, and with his body facing away from Mr French, Mr Grantham says the words “I’m trying to not punch you in the face, you need to step away from me.” Mr French then walked past Mr Grantham towards his office, walking through the space left for him by Mr Grantham.

[24] Neither man displays any physical aggression towards the other during the whole sequence. Mr French called out to Mr Grantham and then pursued him to continue the conversation. Mr French did not act in any way inappropriately in doing so. Mr French moved carefully and respectfully towards and then away from Mr Grantham at appropriate moments.

[25] Mr Grantham briefly engages again with Mr French but does not at any time move towards Mr French in a way that could be interpreted as hostile or a threat. It was suggested by NSW Trains that Mr Grantham’s fists were clenched for much of the conversation. This is not borne out at all in the CCTV footage. To the contrary, Mr Grantham and Mr French both gesture towards each other predominantly with open palms. As Mr Grantham says in his contemporaneous account of the event, written without having seen the CCTV footage, “my hands were trembling. I was trying to keep them still by squeezing and unsqueezing them”. This squeezing and unsqueezing is obvious on the CCTV footage.

[26] As Mr Grantham says the words “I’m trying to not punch you in the face, you need to step away from me” he waved his arm in a motion to urge or evoke Mr French to move away from him, which is consistent with the words he said and is consistent with what Mr French then did.

[27] It was clearly a difficult conversation for both men. Straight away Mr French went back to his office and rang his supervisor, Ms Glasgow (Area Manger) who in turn joined Mr Dorrian (Director, Region South & West) into the call. Mr Dorrian’s file note of the call included the following observation:

“Note: Greig [French] seemed a little distressed during the call. His tone and voice was variable throughout the discussion and it seemed to me that he was struggling to talk at times.”

[28] Mr Dorrian did not immediately direct Mr Grantham, or even Mr French, to leave the workplace. His file note of the phone call also says:

“I instructed [Mr French] to ensure that he was in the company of another staff member for any further interactions with Grantham during the day, but to avoid Grantham until he (Grantham) had settled down and I had time to get advice and come back to both [Ms Glasgow and Mr French].”

[29] Later that day Mr Grantham was suspended.

The events leading up to 8 October 2020

[30] There was a significant amount of evidence about the events occurring in the months leading up to 8 October 2020. It is not necessary to traverse all that evidence in detail. NSW Trains’ reasons for dismissal rely solely on the events of 8 October 2020. Moreover, Mr Grantham was never subject to disciplinary proceedings regarding any of the events prior to 8 October 2020, and NSW Trains dealt with Mr Grantham’s behaviour on each occasion without resorting to disciplinary action. As such, I will only provide an overview of these matters despite carefully considering all the specific evidence relied on by each party.

[31] In 2016 NSW Trains announced that it was introducing NIF trains which, according to the announcement, would wholly abolish the guard’s role. Mr Grantham was concerned that he would lose his job, that NSW Trains had not consulted properly, and that the absence of guards on trains would be dangerous. Mr Grantham was actively involved in discussions with various parties because of his position as a Health and Safety Representative. Mr Grantham described the proposed changes as “very distressing” to him because “the railways are a very dangerous place and based on my experience as a guard, I do not think the operational model and the technology used to implement it is as safe as the current model.” Mr Grantham led evidence that called into question the safety of the proposed NIF. I do not need to make any findings at all about the appropriateness or risks of the NIF, but can note that Mr Grantham relies upon these matters being prominent stressors for him in the weeks and months leading up to 8 October 2020.

[32] Mr Grantham raised his concerns, and the concerns of his colleagues, at work health and safety meetings. NSW Trains says that in 2020 Mr Grantham was disrespectful towards others at various safety meetings.

[33] In July 2020 Mr Grantham contacted NSW Trains’ Injury Hotline and filed a [psychological] injury report indicating that:

“Employee reported that whenever he goes to work he feels that the business does not appreciate his safety contribution. They were also implementing less safe methods of operation. Employee stated that everyday he gets reminded that the company does not want him. Employee alleged that he is hurt because the management is saying things that are untrue and that he is being lied to. This had been ongoing since 2017.”

[34] Following this injury notification Mr Grantham engaged in the NSW Trains’ Employee Assistance Program (EAP) and both Mr French and Ms Glasgow made welfare checks upon Mr Grantham over the following months.

[35] On 10 August 2020 Mr Grantham attended a WHS meeting in his capacity as a Health and Safety Representative. On 12 August 2020 Mr Grantham sent an email to Mr French, cc Ms Glasgow, raising concerns and criticisms of Ms Glasgow’s conduct at the meeting on 10 August 2020. Mr Grantham’s email referred to a recent “Pulse Survey” which recorded a perception from the workforce that well-being concerns were not properly considered by management and that he and other staff were not actually being listened to. Mr Grantham’s email included the following:

“TfNSW literature clearly says: “In living our safety value, we proactively share a commitment to the physical and psychological safety of others and ourselves by creating safe workplaces supported by a safe culture.” At the WHS meeting, I tried to start a conversation about NSW Trains meeting its commitment to ensure the psychological safety of its team members, but [Ms Glasgow] shut down the conversation in a humiliating and downgrading manner, victim blaming me and anyone who has completed the Pulse Check with their honest answers. According to her, NSW Trains is not accountable for the toxic work environment that we find ourselves in and which some have escaped from and some are not being allowed to, despite having alternative positions to go to.

Offering EAP and assistance from Peer Support Volunteers and Level 5 Managers is definitely a good thing. I am using EAP services myself. But as a solution to the trend of worsening well-being within NSW Trains, it is not the answer. You wouldn’t give bandaids to somebody with a collapsed lung, for example, you have to treat the causes of the problem, or it gets worse. Likewise, EAP and local mental health support is essentially tokenistic, if the root problem of NSW Trains employees’ wellbeing is not being addressed. Similarly, without addressing employees’ concerns in a dignified and respectful way, employee well-being will also decline.”

[36] Mr Grantham’s email was sent in reply to an email from Ms Glasgow that included the following:

“Actions we can take collectively:

- Encourage the work group to speak with their manager, help facilitate if needed, in order to access information and have opportunity to become more active with their mental health & well-being themselves

- Make sure the information flow operates in both directions as appropriate (confidential information will not be shared), help the work group understand how their information has been used, why it’s important they share…”

[37] Unfortunately, Mr Grantham did not receive any substantial response or reply to his email - which ironically proved his point.

[38] Mr French did not respond to the email, other than to acknowledge it, because “[he] was waiting for directions.” Obviously, no direction ever came to Mr French. Mr French accepted during cross-examination that he understood Mr Grantham’s purpose in sending the email was to seek to deal with, in a productive way, Mr Grantham’s concerns about Ms Glasgow’s participation in the meeting on 10 August, and that there was nothing wrong with him doing that.

[39] Ms Glasgow said in evidence that she did not reply to Mr Grantham’s email because it was not sent to her directly (it was only cc’d to her). Given Mr Grantham’s email was sent one hour after Ms Glasgow sent her email encouraging him to “speak with [your] manager … and have opportunity to become more active with their mental health & well-being”, and that Mr Grantham’s email urged her to “[address] employees’ concerns in a dignified and respectful way”, Ms Glasgow’s decision to not even respond to his email was appalling.

[40] Worse still, apparently on advice from “People and Culture”, Ms Glasgow decided to place Mr Grantham on a performance improvement plan because he sent the email.

[41] On 19 August 2020, one week after Mr Grantham’s email, Ms Glasgow conducted a “last minute Welfare check in” on Mr Grantham but did not discuss either his email of 12 August 2020 or the impending PCIP.

[42] Thereafter NSW Trains issued its proposed PCIP to Mr Grantham, and on 28 September 2020 offered him the opportunity to respond to the proposed plan, and then met again on 7 October 2020 for him to sign off on the plan. Mr Grantham accepted NSW Trains’ invitation to respond to the draft PCIP, but nobody from NSW Trains appears to have read his response. Ms Glasgow appears to have simply issued a directive that Mr Grantham was required to sign off on the draft PCIP without amendment. Ms Glasgow accepted under cross examination that she had the authority to issue the PCIP to Mr Grantham and she readily admitted that she had not read Mr Grantham’s reply. Ms Glasgow did not provide any logical or reasonable explanation for why she refused to read Mr Grantham’s response to the proposed PCIP.

[43] This sequence heaped irony upon irony insofar as Mr Grantham’s initial email that led to the PCIP raised a concern that management generally, and Ms Glasgow in particular, did not listen in any meaningful way to the concerns of the workforce and instead victim-blamed. NSW Trains generally, and Ms Glasgow specifically, did not listen or consider Mr Grantham’s concerns raised in Mr Grantham’s email in any way at all, let alone any meaningful way and instead imposed a PCIP upon Mr Grantham. When Mr Grantham answered NSW Trains’ invitation to respond to the proposed PCIP, NSW Trains and Ms Glasgow explicitly refused to read his response or take his response into account when it implemented the PCIP.

[44] Even worse still, Ms Glasgow attended the meeting on 7 October 2020, unannounced, as Mr French’s “support person”. Once again, Ms Glasgow did not provide any logical or reasonable explanation for why she attended the meeting as a “support person” when the meeting itself was specifically to implement the PCIP that she had authorised. Ms Glasgow did not take the opportunity available to her at the meeting on 7 October 2020 to discuss Mr Grantham’s concerns raised in his email of 12 August 2020, or his concerns about the PCIP process.

[45] At the meeting of 7 October 2020 Mr Grantham was given until the next morning to decide whether he would sign the PCIP. The next morning was of course 8 October 2020 and Mr French and Mr Grantham met as planned to briefly finalise the PCIP issue, after which Mr Grantham initiated a conversation about the NIF - which led to the events that resulted in Mr Grantham’s dismissal.

Grantham’s Case

[46] Mr Grantham had an exemplary disciplinary record. He was the sole Health and Safety Representative for Lithgow Depot Guards. He was a Peer Support Volunteer for the Blue Mountains area and 36 of his colleagues provided personal references in the proceedings heaping personal and specific praise upon Mr Grantham.

[47] Mr Grantham says that the incident on 8 October 2020 “unfolds as a lengthy tale of serious workplace upheaval.” Mr Grantham experienced several chronic and acute stressors in the lead up to the incident on 8 October 2020. I have described many but not all those stressors above.

[48] Mr Grantham submits that:

“In short, however, while Mr Grantham did engage in inappropriate conduct, the dismissal is harsh and unreasonable, when regard is had to:

a) The extraordinary stress that Mr Grantham was under at work, not only on 8 October, but in the several years leading up to the incident in question:

b) NSW Trains’ failure to properly support Mr Grantham, and their contribution to his poor mental health in circumstances where it knew he was struggling at work

c) NSW Trains failure to informally counsel Mr Grantham about any perceived behavioural issues in circumstances where he has otherwise been a model employee;

d) Mr Grantham’s excellent previous disciplinary record, and his long employment service;

e) The adverse impact dismissal has had on Mr Grantham, in circumstances where his wife is not employed and he has young children in his care.”

[49] He submits that saying the words “get fucked” in Mr French’s presence was a “a robust, but inappropriate outburst at a friend and supervisor who had told him something he found shocking.”

[50] He submits that he did not make any threat to Mr French as alleged or at all. He submitted that it was his:

“… best attempt at very quickly explaining how upset he was when his other explanations had fallen on deaf ears.

Where Mr Grantham’s previous pleas to Mr French that he was “not okay” and needed to be left alone had been ignored, this was an obvious attempt to quickly convey the seriousness of his emotional disturbance. Its purpose is proved by the outcome – Mr French got the message and left.

…

NSW Trains knew Mr Grantham was suffering. He told them so, and they met about it. But beyond offering the standard employment assistance program, it did nothing by way of material assistance. It is manifestly unfair to create a fraught environment for an employee and expect him to thrive within it. Mr Grantham’s outburst must be properly seen in that context – a employee, for a brief moment, who had reached his very capacity to cope.”

NSW Trains’ Case

[51] NSW Trains acknowledged that in the weeks leading up to 8 October 2020 there were signs that Mr Grantham was not coping. Mr Grantham had been referred to NSW Trains’ EAP and NSW Trains, in its case, referred to several “welfare checks” done on Mr Grantham over several months.

[52] NSW Trains submitted that when Mr French disagreed with Mr Grantham about the NIF “the fact that the Applicant disagreed with this opinion does not then allow the Applicant to verbally abuse his manager” and that “expressing a different opinion to the Applicant does not then entitle the Applicant to verbally threaten Mr French with violence.”

[53] NSW Trains submitted that:

“His explanation for the conduct is that he was told “something shocking”. A manager disagreed with his point of view on the introduction of the NIF, a matter that is not local or isolated to the workplace within which the Applicant and his manager work. It was not a matter that the manager had any control over or could influence.

There can be no justification for verbal abuse and threats of violence in the workplace. The Respondent has a duty of care to all its employees. Employees cannot be put in situations where, if they disagree with another employee’s point of view, they are subject to such threats.”

[54] NSW Trains submitted that Mr Grantham’s behaviour over the several months leading up to 8 October count against him when NSW Trains provided support to him such as welfare checks and access to the EAP.

Consideration

[55] Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Grantham’s dismissal was harsh, unjust or unreasonable:

(a) 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 other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) 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; and

(h) any other matters that the FWC considers relevant.

[56] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1 I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[57] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4

[58] NSW Trains relied on two reasons for dismissal: that Mr Grantham “verbally abused his manager” when he told Mr French to “get fucked” and that Mr Grantham “verbally threatened his manager” when he said the words “I’m trying hard not to punch you in the face, you need to step away from me” to Mr French shortly thereafter.

[59] In Sydney Trains v Gary Hilder[2020] FWCFB 1373 (“Hilder”) the Full Bench summarised the well-established principles for determining such matters at [26] 5:

“The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

[60] NSW Trains submits that both actions by Mr Grantham were misconduct. As indicated in Hilder above, I must determine whether the conduct occurred and what it involved.

[61] I shall deal with the second reason first – being whether Mr Grantham verbally threatened Mr French when he said the words “I’m trying hard not to punch you in the face, you need to step away from me”.

[62] The internal investigator’s report makes the following conclusions about the conversation on the platform and the alleged threat:

“The observed body language, hand gestures and facial expressions on the CCTV footage support that Mr Grantham was the aggressor.

Whilst Mr Grantham raised some mitigating factors about his state of mind at the time of the event, on two occasions Mr Grantham could have walked away but chose to turn back and re-engage with the verbal interaction with Mr French. Despite Mr French likely contributing to the situation escalating by pursuing Mr Grantham, a reasonable person would accept that Mr Grantham is solely responsible and accountable for his own behaviours and no reasonable alternative explanation was provided to justify the use of a verbal threat of physical harm towards Mr French.

Based on all the available information and material evidence (including CCTV footage), on the balance of probabilities, the investigation concludes that a reasonable person would consider Mr Grantham’s behaviour towards Mr French on 8 October 2020, as aggressive and threatening.”

[63] In my view these conclusions are wrong. It is unfair to Mr Grantham to suggest that he “chose to turn back and re-engage with the verbal interaction” in some way that made his actions “aggressive and threatening”. Mr French pursued Mr Grantham to continue the conversation. In my view Mr Grantham was being polite to Mr French by speaking to him in a short conversation when quite clearly he was agitated and did not want to have any further conversation at all.

[64] Mr Dorrian was the decision-maker for NSW Trains. In Mr Dorrian’s evidence to the Commission he said that he reviewed and considered the Investigation Report and formed a preliminary view (and then a final view) that Mr Grantham’s employment should be terminated due to the following:

“Mr Grantham’s threat of physical violence. In my view, Mr Grantham’s threat of physical violence to Mr French was very serious and the key factor justifying dismissal. Whilst some swearing may be inappropriate and may not justify termination of employment, threats of physical violence towards other employees or management is not tolerated. If Mr Grantham had only said the words “get fucked” to Mr French while in the shift manager’s office, I may have formed the view that other penalties may have been more appropriate than dismissal. However, Mr Grantham’s actions in threatening Mr French and saying words to the effect of “I’m trying hard not to punch you in the face,” heightened the seriousness of what occurred on 8 October 2020 and led me to form the preliminary view that dismissal was the most appropriate outcome.

From reviewing the investigation report and CCTV footage, Mr Grantham can be seen in the CCTV footage clenching his fists and moving towards Mr French. Mr French steps back and then leaves. I formed the view that Mr Grantham’s threat was not just a throw away comment, but a serious threat with intention. The fact that he had made the threat and his actions as seen in the footage, in my view, suggested that there was a real risk of physical violence which was a work, health and safety risk for the business…”

[65] I do not accept that Mr Grantham’s words heightened the seriousness of what occurred on 8 October 2020. The words used, in context, were words of de-escalation rather than words that heightened the seriousness of the situation.

[66] In this second conversation on the platform Mr Grantham says nothing else that could be understood as threatening, hostile or even critical of Mr French prior to saying the words “I’m trying hard not to punch you in the face, you need to step away from me.”

[67] It is significant that Mr Grantham turned away from Mr French as he said those last words. He was not issuing an ultimatum to Mr French, he was asking Mr French to leave. By his hand gesture he was waving Mr French away. The reference to punching him in the face was a figure of speech referring to Mr Grantham’s agitated state, not a statement that Mr Grantham was prepared to be violent towards Mr French.

[68] I accept the theoretical possibility that exactly the same words in a different context could amount to a threat – the threat being “if you don’t leave now I am going to punch you in the face” - but I am satisfied that no such threat was made on this occasion.

[69] More precisely for present purposes, NSW Trains has not established to the Briginshaw standard that Mr Grantham verbally threatened his manager. That is, I am not comfortably satisfied that Mr Grantham engaged in misconduct of this type.

[70] Mr Dorrian properly conceded in cross-examination that if Mr Grantham did not in fact intend to make a serious threat to Mr French, then he should not have been dismissed. 6 This concession is not binding on NSW Trains and is of course now a matter for me to decide. The concession was nonetheless properly made by Mr Dorrian.

[71] I find that the fact that Mr Grantham said “if you don’t leave now I am going to punch you in the face, you need to step away from me” was not a threat of violence. As such, even though I accept that those words were said, I do not find that the misconduct of threatening a manager occurred at all. I necessarily must also find that the saying of the words “if you don’t leave now I am going to punch you in the face, you need to step away from me” was not a valid reason to dismiss Mr Grantham from his employment.

[72] Returning to the first reason for dismissal said by NSW Trains to constitute misconduct, there is no contest that Mr Grantham said the words “get fucked” in Mr French’s office. I have found above that the words were mostly likely said as Mr Grantham was leaving the office, and that most likely the words were not immediately followed by the words “sorry, I’m so sorry. I don’t mean that”.

[73] In the modern Australian workplace there are several possible meanings of the phrase “get fucked.” In context it could be an expression of strong disagreement, or pleasant surprise, unpleasant surprise, strong disapproval or even a hostile threat. Obviously the context in which the words are said will significantly affect how offensive their use might be. In Mr Grantham’s case the words “get fucked” were an expression of strong disbelief but they were not squarely a verbal abuse of Mr French.

[74] Mr Grantham’s conduct on 8 October 2020 in saying “get fucked” was unprofessional, unacceptable, and breached NSW Trains’ Code of Conduct.

[75] In Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited[2020] FWCFB 4448 at [30] the Full Bench observed 7:

“A valid reason under s 397(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal.”

[76] Mr Grantham saying “get fucked” certainly warrants the issue of a reprimand. However his conduct sits awkwardly on the boundary between conduct that is misconduct (a valid reason) but for which termination would be harsh, and conduct that is not serious enough to be a valid reason for dismissal. As will become apparent, Mr Grantham’s case fits comfortably in the group of cases where this distinction it will not make any difference to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. 8

[77] In Hilder the Full Bench found at [29]:

“However, the Deputy President’s consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains’ dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.”

[78] In Hilder the Full Bench noted that the Deputy President at first instance also made an alternate finding that Mr Hilder’s dismissal was harsh on the premise that there was a valid reason for dismissal (at [38]), upheld the original alternate finding that the dismissal was harsh (at [41]) and dismissed the appeal (at [42]).

[79] A substantial and wilful breach of a policy will usually constitute a valid reason for dismissal.⁹ Applying further the Full Bench’s approach in Hilder, next question to be resolved is whether the breach of the Code was a matter of sufficient gravity to constitute a sound, defensible, well-founded, and therefore valid reason for dismissal.

[80] I find that the fact that Mr Grantham said the words “get fucked” in Mr French’s was a breach of NSW Trains’ Code of Conduct that was of sufficient gravity to constitute a valid reason for dismissal.

[81] Mr French and NSW Trains were entitled to expect better conduct from Mr Grantham. NSW Trains was entitled to act on breaches of its Code of Conduct and, absent mitigating factors, an employee telling their direct manager to get fucked was a valid reason for dismissal.

[82] I therefore find that there was a valid reason for the dismissal related to Mr Grantham’s capacity or conduct, being that on 8 October 2020 Mr Grantham said the words “get fucked” to Mr French.

Was the Applicant notified of the valid reason?

[83] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Grantham “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a). 10

[84] Mr Grantham was notified of the fact that NSW Trains dismissed him because of the words he said to Mr French.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[85] Mr Grantham was given a proper opportunity to respond to the allegations against him. NSW Trains engaged an external investigator and Mr Grantham made a submission to the investigator. Mr Dorrian made preliminary findings that Mr Grantham engaged in misconduct and issued a show cause letter that gave Mr Grantham an opportunity to respond to the allegations against him.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[86] This factor is not a relevant consideration in this matter.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[87] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[88] Neither party submitted that the size of NSW Trains’ enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of NSW Trains’ enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[89] NSW Trains’ enterprise does not lack dedicated human resource management specialists.

What other matters are relevant?
[90] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[91] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).

[92] Mr Grantham was a long-term employee with an unblemished record. He was a highly regarded member of NSW Trains’ workforce, as evidence by the wave of statements of support from his peers. He was active in the workplace as a Health and Safety Representative and also as a Peer Support Volunteer for the Blue Mountains area. These matters count substantially in Mr Grantham’s favour when assessing his conduct in telling Mr French to get fucked.

[93] Mr Grantham showed genuine remorse for his action. In his response to the investigator he begins as follows:

“I feel sincere remorse following the events that occurred on 8 October 2020. It was never my intention to say the things I did that day which may have the potential to cause any hurt or discomfort. I reacted in a moment of emotion, having lost my composure due to the accumulated stress of many months of work-related events that had been affecting my wellbeing.

In general, I pride myself on following the Transport values of integrity, problem solving, respect, fairness, accountability, customer service and, above all, safety. I feel shame that I said things in a minute of weakness to my supervisor Greig French that I deeply regret. I feel disappointed that I have let my work group down as all I was trying to do was express their safety concerns for our customers and colleagues.”

[94] I accept that Mr Grantham’s behaviour worsened over several months and I note, with some significance, that NSW Trains did not take any steps to take any disciplinary action about his escalating behaviours. There is some force in Mr Grantham’s claim that his concerns fell on deaf ears – the inadequacy of NSW Trains’ responses to Mr Grantham’s communications are obvious from my findings above.

[95] I accept that NSW Trains took steps to show concern for Mr Grantham’s welfare, particularly after he contacted the Injury Hotline in July 2020. However, any positive value from these actions was significantly outweighed by NSW Trains’ mishandling of Mr Grantham’s email of 12 August 2020 and the subsequent PCIP process.

[96] More so, it should have been obvious to NSW Trains that the incident on the morning of 8 October 2020 was an outburst caused by Mr Grantham’s poor wellbeing at that time. Unfortunately, Mr Grantham was quite prophetic in his email of 12 August 2020 when he said “EAP and local mental health support is essentially tokenistic, if the root problem of NSW Trains employees’ wellbeing is not being addressed.”

[97] However, NSW Trains’ response of suspending Mr Grantham and conducting a 4-month external investigation into a 4-minute incident, was grossly disproportionate.

[98] NSW Trains is entitled to have a “zero tolerance” for breaches of the Code of Conduct. But zero tolerance does not mean that every transgression of the Code must result in dismissal of employment. NSW Trains’ Code does not even include such a draconian approach. The Code includes the following:

“If you are found to be in breach of this Code of Conduct or the Code of Ethics and Conduct for NSW government sector employees, you may be subject to disciplinary action, up to and including termination of your employment or contract in accordance with agency policies and procedures.”

[Emphasis added]

[99] Somebody other than Mr French could have and should have immediately intervened and spoken to those involved. If this had occurred, then Mr Grantham’s working relationship with Mr French would probably have been quickly repaired – obviously starting with the unconditional apology Mr Grantham was prepared to provide. Mr Grantham could have been disciplined about his unsatisfactory behaviour and the matter could have been sorted in a very short period.

[100] Instead, Mr Grantham was left languishing under suspension for several months and Mr French was completely unaware of Mr Grantham’s remorse and unconditional apology.

[101] When Ms Glasgow was asked in cross-examination of her personal view of one aspect of Mr Grantham’s behaviour prior to 8 October 2020 she said “I am not hired to be a person. I’m hired to be a manager. Therefore, I apply rules, policies, and procedures.”

[102] The statement was bizarre at the time it was made and in one sense it reflects NSW Trains’ methodology for dealing with Mr Grantham – it just applied rules, policies and procedures without any personal considerations.

[103] However Ms Glasgow’s statement was actually a more damaging reflection of NSW Trains’ actions. It is absolutely true that Ms Glasgow, Mr Dorrian, the human resource specialists in “People and Culture”, and perhaps even Mr French, are all “hired to be a manager”. But nobody ended up being a manager to Mr Grantham because nobody was prepared to actually engage with him properly. When eventually Mr Grantham’s frustrations erupted in an outburst, still nobody in his line of reporting was prepared to sit and talk to him and listen to what he had to say.

[104] Instead, the matter was farmed out to an external investigator, then a man who Mr Grantham never met decided to dismiss him, and then Mr Grantham was out.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[105] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

[106] I find that the dismissal of Mr Grantham was, in the circumstances, harsh and unreasonable.

[107] Mr Grantham’s conduct was unacceptable and NSW Trains was entitled, if not required, to take action to prevent such behaviour occurring again.

[108] It was, for the reasons described above, unreasonable for NSW Trains to dismiss Mr Grantham in the circumstances. NSW Trains had other reasonable actions available to it to address Mr Grantham’s behaviour and it was unreasonable for NSW Trains to take the course that it did.

[109] The consequences for Mr Grantham were significant and the decision to dismiss him was disproportionate to his conduct and was harsh.

[110] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Grantham was unfair.

Remedy

[111] Being satisfied that Mr Grantham made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Mr Grantham’s reinstatement, or the payment of compensation to Mr Grantham, subject to the FW Act.

[112] In cross-examination Mr Dorrian properly conceded that if one assumes (or in the Commission’s case, finds) that Mr Grantham had not in fact threatened Mr French, then his view that it would be inappropriate for Mr Grantham to be reinstated would fall away. Unpacking the double or triple negative contained in the previous sentence, Mr Dorrian gave evidence that he thought that it would not be appropriate for Mr Grantham to be reinstated because of the fact that he had made the threat to Mr French. He accepted that if no threat was in fact made then there is no material obstacle to Mr Grantham being reinstated.

[113] Mr French’s view was understandably more cautious. I have commented on NSW Trains’ missed opportunity to repair the working relationship between Mr French and Mr Grantham.

[114] Mr French’s evidence about the arrangements under which he and Mr Grantham worked was as follows:

“As Shift Manager, I am responsible for the day to day management and operation of train crew at Lithgow Station on any given shift, including Train Drivers and Guards. My role involves managing the performance, development and competency of train crew at Lithgow station including, among other things ensuring designated train crew are fit for their roles, coordinating rostering arrangements, maintaining supplies of all personal protective equipment ensuring training requirements are met, supervising and coaching staff and dealing with performance and conduct issues.

There are two Shift Managers at Lithgow Station. These are Parvinder Singh and me. Mr Singh and I work alternating shifts with a one-hour cross over. We each have our own team of direct reports. However, we will manage and deal with any issues arising in respect of the train crew rostered at the shift times we are working. As train crew work rotating 24 hours shifts, they can be rostered on at any time when Mr Singh or I are working. The train crew that report to me are not necessarily rostered on when I am working, and the train crew that report to Mr Singh are not necessarily rostered when he is working. During the cross over on our shifts, Mr Singh and I discuss any issues that have arisen in the previous shift and do a hand-over.”

[115] In his evidence Mr French said “I would find it extremely difficult to be Mr Grantham's line manager. In another team, that would be acceptable, yes - but no, I would not like to be Mr Grantham's line manager” which I take to mean that if Mr Grantham was reinstated and worked in Mr Singh’s team of direct reports, then such an arrangement would be “acceptable” to him even though he might be called upon to “manage and deal with any issues arising in respect of the train crew rostered at the shift times we are working”, which might include Mr Grantham’s train crew.

[116] The Commission must perform its functions and exercise its power in a manner that is fair and just and promotes harmonious and co-operative workplace relations (per s.577 of the FW Act) and must take into account the objects of the Act, and equity, good conscience and the merits of the matter. The power to order reinstatement is “a very drastic one”.¹¹ As the High Court observed in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 548 [28], such an order is an intrusion into the personal relationship of employer and employee, and an intrusion that is “deliberate and envisioned by the Act.”

[117] As the Full Court in Perkins v Grace Worldwide Australia Pty Ltd observed: the employment relationship is capable of withstanding some friction and doubts. 12

[118] NSW Trains alleged that after Mr Grantham was suspended, and during a period where he retained a NSW Trains mobile phone, he disobeyed instructions from Ms Glasgow and used his phone for unauthorised purposes. NSW Trains led no direct evidence of this unauthorised use and took no steps to investigate the alleged unauthorised use and/or to cite this conduct as a reason for dismissal. NSW Trains argued that this alleged disobedience by Mr Grantham pointed against the granting of a reinstatement order. I do not need to make any findings about the use of the mobile phone because, even if NSW Trains had properly established conduct contrary to the instruction given, it could not be sensibly understood to be disentitling conduct.

[119] Taking all these matters into account I find that it would be appropriate to order that Mr Grantham be reinstated to his former position pursuant to s.391 of the FW Act.

[120] Further, it is appropriate to make an order that maintains the continuity of Mr Grantham’s employment (per s.391(2)(a)) and to make an order that NSW Trains pay to Mr Grantham an amount for the remuneration lost by Mr Grantham because of the dismissal (per s.391(3)).

[121] In making an order under s.391(3) I am required by s.391(4) to consider:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[122] I will make orders addressing the above matters, including an order that NSW Trains pay to Mr Grantham the amount of ordinary time remuneration he lost because of the dismissal, less any amount paid in lieu of notice of termination, and less any monies earnt by Mr Grantham from other work. I will also make orders to facilitate the calculation of the amount to be paid, including orders for the filing of further evidence and submissions if the parties cannot agree.

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo of Counsel for the Applicant
Ms A Perigo of Counsel for the Respondent

Hearing details:

2021.
Sydney (By Video)
July 12, 30.

Printed by authority of the Commonwealth Government Printer

<PR734337>

 1   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 3   Ibid.

 4   Commonwealth of Australia (Australian Taxation Office) v Shamir [2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 5   Citing Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen[2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [25]- [35].

 6   PN1290-1292.

 7   Citing Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]- [35]; Bista v Glad Group Pty Ltd [2016] FWC 3009 at [34]-[41].

 8 It will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”

9 B, C and D v Australian Postal Corporation t/a Australia Post (2013) 238 IR 1, [2013] FWCFB 6191 at [36].

 10   Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

11 Slonim v Fellows (1984) 154 CLR 505 at 515, [1984] HCA 51, cited in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 548, [2005] HCA 22 at [28].

 12   Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190, [1997] IRCA 15.