[2020] FWC 6064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Cahill
v
Sydney Trains
(U2020/2911)

COMMISSIONER MCKENNA

SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] Trevor Cahill (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy concerning his dismissal by Sydney Trains (“the respondent”).

[2] As to preliminary matters, there were no issues, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business, and so consideration of the Small Business Fair Dismissal Code does not relevantly arise; and the dismissal did not involve a case of genuine redundancy.

General background

[3] By way of general background, the applicant initially was employed by RailCorp, a predecessor to the respondent, in March 2000; his employment continued thereafter with the respondent from around 2012 until his dismissal. The applicant most recently worked for the respondent as a Customer Service Attendant at a railway station in suburban Sydney.

[4] The circumstances that led to the dismissal related to interactions between the applicant and employees of NSW Trains, while the applicant was travelling on an XPT train (badged as a NSW TrainLink service) (“the XPT”) at a time when he was on holidays. The respondent and NSW Trains are different entities, and the applicant was not an employee of the latter entity. Following an investigation concerning matters that occurred on the XPT, the respondent decided to dismiss the applicant consequent upon events on the XPT. In short form, the dismissal resulted against the background of allegations that:

• the applicant became annoyed and argumentative concerning a purchase of alcohol, stating to a NSW Trains employee who was working at the buffet counter words to the effect “I haven’t been drinking and you are saying I’m drunk.”;

• the applicant yelled at a second NSW Trains employee regarding the earlier restriction of his alcohol purchase and slammed the sleeper cabin door in her face, causing her to feel uncomfortable and intimidated;

• the applicant was heard by a passing NSW Trains employee yelling (within his sleeper cabin); and

• in a second attendance at the buffet counter to purchase alcohol, the applicant became argumentative and disrespectful towards a third NSW Trains employee about two matters, namely: (a) the employee having contacted the Rail Operations Centre (“the ROC”) about the applicant; and (b) the initial decision to restrict the applicant’s purchase of alcohol.

[5] The respondent also relied, in the final decision-making and separately from the original XPT-related matters that were the subject of an investigation and an investigation report, on matters that unfolded when the applicant was informed in a meeting on 26 November 2019 that the preliminary decision was that he should be dismissed. That is, the dismissal letter referred to three matters in such respects, namely: (a) the applicant refused to return respondent-issued property; (b) the applicant raised his voice in a loud and aggressive tone while pointing his finger at employees during the meeting; and (c) the applicant stood over one of those employees while she was seated. The applicant’s behaviour during this meeting was considered aggressive and inappropriate.

[6] Following certain review processes, the termination of employment took effect on 6 March 2020.

Immediate background

[7] An outline of the immediate background to the dismissal is as follows. The applicant lives and worked for the respondent in Sydney. He made plans for a skiing holiday in Victoria. Relevantly, drawn from the applicant’s evidence, the background to those plans for the round trip from Sydney to Mount Hotham and back to Sydney, and the travelling plans that in fact unfolded, involved the following:

• On or around 5 July 2019, the applicant emailed the Passes and Concessions section at Transport for NSW (“Passes and Concession”) to arrange travel to Victoria in August 2019 so he could go skiing.

• The applicant planned to travel from Sydney to Wangaratta in Victoria, and then travel by bus to a ski resort in Mount Hotham in Victoria.

• On 8 July 2019, the applicant received an email from an employee of Passes and Concessions explaining that he was not entitled to discounted travel to Wangaratta because he had already used his interstate voucher entitlement (which entitles eligible employees to free or discounted interstate travel on services such as GSR, QR Traveltrain and NSW TrainLink) earlier in the same year to travel to Melbourne. The email from Passes and Concessions further explained that the applicant could use his employee pass for free first class travel to Albury NSW, and then pay full fare to travel one stop to Wangaratta.

• That same day, there were further emailed communications between the applicant and Passes and Concessions as to whether he could be issued with an exemption to go one stop to Wangaratta, because it was a short distance from Albury and because the applicant had not used any interstate vouchers for approximately 15 years, except for an interstate voucher he had used earlier that same year (the applicant did not realise that interstate vouchers do not accumulate). The applicant was advised that Passes and Concessions was unable to issue an exemption. The applicant did not press the matter any further and proceeded to book his interstate travel.

The Sydney to Mount Hotham journey

• On 1 August 2019, the applicant used his employee pass to travel on an XPT service from Sydney’s Central Station to Albury NSW, and then paid a full fare to travel on a rail service from Albury to Wangaratta. From Wangaratta, the applicant travelled to Bright by bus, and then on again to Mount Hotham.

The Mount Hotham to Sydney journey

• The applicant’s initial plan to return from his ski holiday to Sydney involved returning from Mount Hotham to Wangaratta by bus, and then on to Sydney. This initial plan was not possible due to inclement weather. The applicant therefore had to modify his plans so as to travel from Mount Hotham to Melbourne, and then travel from Melbourne on an XPT service back to Sydney.

• On 9 August 2019, the applicant got a lift from Mount Hotham to Bairnsdale, where he stayed overnight. Before going to bed that night, the applicant telephoned the NSW Trains booking office to cancel his booking from Wangaratta to Sydney and to book a new fare from Melbourne to Sydney. A booking officer employee told the applicant that he could not use an employee pass or interstate voucher to travel to the Victorian border, and that he would have to pay the fare from Melbourne to Albury, and then use his employee pass from Albury to Sydney.

• The applicant booked and paid for a ticket for a sleeper cabin for the entire trip on an XPT from Melbourne to Sydney and for the Melbourne to Albury portion of the trip; he made the payment over the telephone using his credit card in the amount of $177.91.

[8] The evidence indicated the applicant paid for the sleeper cabin at full market rates for the entire duration of the Melbourne to Sydney trip; the applicant also paid for the Melbourne to Albury leg of the trip at full market rates. The applicant received the benefit of using his respondent-issued travel pass for free travel for the Albury to Sydney leg of the trip. The respondent’s submissions indicated a value of $88.00 on the Albury to Sydney journey, albeit there was no evidence supporting that particular figure.

[9] On 10 August 2019, the applicant caught a train from Bairnsdale to Melbourne, which took approximately four hours. At 7.50pm, the applicant boarded the XPT at Melbourne’s Southern Cross Station bound for Sydney’s Central Station.

[10] As will be outlined more fully later in the decision, events on the XPT on the evening of 10 August 2019 eventuated in the dismissal of the applicant.

Valid Reason – the Code of Conduct and Travel Passes

[11] Bypassing a detailed outline of the events that occurred on the XPT on 10 August 2019, I will go immediately to the question of whether there was a valid reason for the dismissal. That is, it is strictly unnecessary to consider matters of contested facts and/or contested characterisations concerning certain interactions between the applicant and three employees of NSW Trains if I am correct in concluding there was no valid reason for the dismissal, based on the two principal matters initially relied upon by the respondent concerning the dismissal.

[12] Those two principal matters concerned, first, the operation of the respondent’s Our Code of Conduct (“the Code of Conduct”) and, second, conditions of use of travel passes - in circumstances:

• when the applicant was on holidays and not on any work-related travel;

• when the applicant was travelling within Victoria on the XPT at the time the incidents unfolded, en route back home to Sydney following his skiing holiday in Victoria;

• involving three employees of NSW Trains said to be the applicant’s “colleagues” albeit the applicant and the three employees have two different entities as their respective employers and the applicant and the three employees did not at the time, and never had, worked together; and

• where the applicant was travelling on a leg of the journey between Melbourne and Albury on the XPT for which the applicant had pre-paid on his credit card at full market rates.

[13] It will be necessary to separately deal with a third or supplementary matter relied upon by the respondent in the final decision to dismiss, related to what unfolded during a meeting when the applicant was informed that the respondent’s preliminary decision was to dismiss him concerning the incidents on the XPT.

[14] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters. I turn first to the question of 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). In so doing, I will refer to a broad chronological outline in the commentary and findings concerning the Code of Conduct and the conditions of use for travel passes.

The investigation and the Investigation Report

[15] Michael Mercieca is the respondent’s Deputy Executive Director, Customer Delivery (Region 1), Customer Service. He received a complaint from NSW Trains regarding the applicant’s conduct towards its employees on the XPT. Mr Mercieca referred the matter to the Workplace Conduct and Investigations Unit (“WCIU”), which, in turn, commissioned an investigation. On 26 August 2019, Delander Melhuish, WCIU Consultant, gave the applicant notification of a disciplinary investigation and the pending appointment of an external company to conduct the investigation. On 26 September 2019, further WCIU correspondence was sent by Ms Melhuish to the applicant which read in part:

“…The purpose of this letter is to advise you of the allegation made against you, and to provide you with an opportunity to respond in writing.

Allegation

On Saturday 10 August 2019, while travelling as a passenger registered as a Sydney Trains’ employee on a train service between Melbourne and Sydney, you engaged in inappropriate conduct toward NSW TrainLink employees.

The particulars of this allegation are:

a) On 10 August 2019, you travelled on NSW TrainLink Service ST22, Melbourne to Sydney, using your Sydney Trains’ Employee Pass. This service departed Melbourne at around 19:50 hours and you occupied cabin A29.

b) During the journey, you approached Senior Passenger Attendant, Mr Jesse Jacobson, at the buffet counter and requested to purchase two beers. Mr Jacobson restricted your purchase to one beer and you became annoyed and argumentative stating to Mr Jacobson words to the effect of “I haven’t been drinking and you are saying I’m drunk.”

c) While occupying cabin A29, you yelled at Passenger Attendant, Ms Lauren Webster, regarding the restriction of your alcohol purchase and slammed the cabin door in her face, causing her to feel uncomfortable and intimidated.

d) Your conduct was reported to the Rail Operations Centre and subsequently, Passenger Service Supervisor, Mr Murray Fraser, heard yelling coming from your cabin.

e) You later attended the buffet counter to purchase more alcohol. During this time, you became argumentative and disrespectful toward Mr Fraser regarding his decision to contact the Rail Operations Centre, and Mr Jacobson’s decision to restrict your purchase of alcohol.

With regard to the allegation, this conduct, if proven, may represent a breach of the following sections of Our Code of Conduct:

• Section 3 - Staff responsibilities;

• Section 12 - Bullying, harassment, discrimination and inappropriate workplace conduct.

The conduct, if proven, may also be in breach of the Employee Pass conditions of use as detailed in the Sydney Trains & NSW TrainLink Employee Passes Booklet, specifically:

• General Pass conditions

• Misuse of passes

I have enclosed copies of the aforementioned instruments for your reference. …”. (Italics in original)

[16] It may be noted that Ms Melhuish’s correspondence referred, within terms, to a singular “Allegation” of inappropriate conduct toward NSW TrainLink employees, and then alphabetically itemised five sub-sets of particulars in relation to the allegation. For ease of reference in the decision, I will refer to the relevant sub-sets as, respectively, Allegation (a), (b), (c), (d) and (e) albeit they are more strictly particulars concerning the singular allegation of inappropriate conduct.

[17] The correspondence from Ms Melhuish dated 26 September 2019 continued with advice to the applicant concerning possible outcomes. In such respects, Ms Melhuish’s correspondence read:

“Possible Outcomes

After conducting any relevant interviews and considering all available information, an Investigation Report will be prepared. If a breach, or breaches, of Our Code of Conduct or TfNSW or Sydney Trains Policy and/or Procedure has occurred, the Investigation Report may be sent to the Group Rail Professional Conduct Unit (PCU) for consideration.

The PCU will make a preliminary recommendation regarding any appropriate disciplinary action in response to the breach/s. Disciplinary action may include one or more of the following:

• caution or reprimand

• fine of an amount not exceeding $100

• reduction in position, rank or grade and pay

• suspension from duty without pay

• dismissal (with or without notice)

Independent of any disciplinary action, Sydney Trains may take appropriate management action including transfer, secondment, training, removal from particular duties (including acting in higher grades or secondments), counselling, mentoring or other measures in the interests of Sydney Trains.”

[18] The applicant did not appear to have an appreciation of the gravity or import of what was unfolding, his cross-examination indicated. The applicant sent fairly cursory emails including, in effect, raising matters about his own complaints concerning what had occurred on the XPT and other matters. The applicant acknowledged in cross-examination that there were inaccuracies in certain emailed correspondence (such as a discrepancy of about $20.00 in a figure he used concerning the amount of the fare he paid for the XPT) and, for example, he had omitted to make any reference to interactions at his sleeper cabin. In that cross-examination, the applicant also retracted certain assertions made in the earlier communications which were to the effect that he may have been under some form of surveillance and/or had been set-up by the respondent.

[19] Geoffrey Campey of MCAA Australia Pty Ltd conducted an investigation. That investigation resulted in a report dated 5 November 2019 1 (“the Investigation Report”). Relevantly, Mr Campey concluded as follows2:

“FINDING

157. The Investigation finds that on the balance of probabilities, there is sufficient evidence to substantiate that on Saturday 10 August 2019, while travelling as a passenger registered as a Sydney Trains’ employee on a train service between Melbourne and Sydney, Mr Cahill engaged in inappropriate conduct toward NSW TrainLink employees.

158. The Allegation is substantiated.

BREACHES

124. Mr Cahill was travelling utilising an Employee Pass and as such was obligated to comply with the relevant policies and procedures pertaining to such travel. Mr Cahill’s behaviour, as established by the evidence adduced during this investigation, did not uphold the values and professional standards as outlined in Our Code of Conduct.

125. Mr Cahill’s conduct as substantiated in the Allegation was inappropriate and unreasonable in the circumstances. Mr Cahill failed to meet his obligation, under Section 3 of Our Code of Conduct, to treat his colleagues courteously and with respect.

126. Mr Cahill’s conduct as substantiated in the Allegation constitutes inappropriate workplace conduct as defined in the Transport Prevention and Management of Bullying and Harassment Policy. Specifically, Mr Cahill engaged in behaviour which was considered disrespectful, intimidating and unprofessional.

127. Mr Cahill’s conduct as substantiated places him in breach of the following Policies:

Our Code of Conduct, specifically:

• Section 3 – Staff responsibilities, specifically:

• treat our customers and colleagues fairly, consistently and with respect;

• comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you;

• not discriminate, harass, bully or engage in inappropriate workplace conduct

• Section 12 – Bullying, harassment, discrimination and inappropriate workplace conduct;

• You must treat all colleagues, customers and members of the public fairly, with dignity and respect.

Transport Prevention and Management of Bullying and Harassment Policy, specifically:

• Section 1.1 – Unreasonable behaviour

• Section 2 – Mandatory requirements;

• Section 3 – Accountability 3”. (Italics, bold and underline in original)

[20] Although the Code of Conduct (among other documents) was put into evidence, the Transport Prevention and Management of Bullying and Harassment Policy was, for reasons which are unclear, not put into evidence by the respondent (and suggested otherwise not to have been considered by Mr Campey in the earlier investigation 4). This was so even though section 12 of the Code of Conduct, upon which specific reliance was placed concerning the dismissal, stipulates that: “The manner in which such behaviour will be managed are [sic] set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy and relevant agency procedures.” It is perplexing that:

• Ms Melhuish did not provide the applicant with a copy of the Transport Prevention and Management of Bullying and Harassment Policy along with other materials she provided to the applicant on 26 September 2019 in her correspondence advising the applicant of the allegations and providing him with an opportunity to respond in writing;

• Mr Campey’s Investigation Report indicated he did not consider in his investigation the Transport Prevention and Management of Bullying and Harassment Policy, 5 albeit, in the “Breaches” section of the Investigation Report he otherwise wrote:

“126. Mr Cahill’s conduct as substantiated in the Allegation constitutes inappropriate workplace conduct as defined in the Transport Prevention and Management of Bullying and Harassment Policy. Specifically, Mr Cahill engaged in behaviour which was considered disrespectful, intimidating and unprofessional.

127. Mr Cahill’s conduct as substantiated places him in breach of the following Policies:

…

Transport Prevention and Management of Bullying and Harassment Policy, specifically:

• Section 1.1 – Unreasonable behaviour

• Section 2 – Mandatory requirements;

• Section 3 – Accountability”. (Italics and underline in original)

• the respondent did not put the Transport Prevention and Management of Bullying and Harassment Policy into evidence in the hearing, even though section 12 of the Code of Conduct, upon which the respondent placed specific reliance concerning the dismissal of the applicant, and as noted earlier, stipulates that: “ … The manner in which such behaviour will be managed are [sic] set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy and relevant agency procedures.”

[21] There was no evidence of any management of the behaviour of the applicant in the manner set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy.

Preliminary dismissal decision – 26 November 2019

[22] Following the Investigation Report, correspondence signed by Mr Mercieca and dated 26 November 2019 advised that “the preliminary view of the appropriate disciplinary outcome” was “dismissal”. It is unclear who the actual decision-maker was concerning the preliminary view, but it least appears the decision-maker was Mr Mercieca; that is, it was Mr Mercieca who gave evidence in the proceedings as to the reasons for that preliminary decision. That correspondence outlining matters concerning the preliminary dismissal decision read in part:

“Dear Mr Cahill,

The Disciplinary Investigation into the allegations that you breached the Transport Code of Conduct (Our Code of Conduct) has now been finalised.

The substantiated allegations, and the particulars which have been previously provided to you, are as follows:

Allegation 1

The particulars of this allegation are:

b) During the journey, you approached Senior Passenger Attendant, Mr Jesse Jacobson, at the buffet counter and requested to purchase two beers. Mr Jacobson restricted your purchase to one beer and you became annoyed and argumentative stating to Mr Jacobson words to the effect of “I haven’t been drinking and you are saying I’m drunk.”

d) Your conduct was reported to the Rail Operations Centre and subsequently, Passenger Service Supervisor, Mr Murray Fraser, heard yelling coming from your cabin.

By engaging in this conduct, you breached Our Code of Conduct, specifically:

• Section 3 – Staff Responsibilities; and

• Section 12 – Bullying, harassment, discrimination and inappropriate workplace conduct

By engaging in this conduct, you also breached the Employee Pass conditions of use as detailed in the Sydney Trains & NSW TrainLink Employee Passes Booklet, specifically:

• General Pass conditions

• Misuse of passes

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.

Further, as set out in the Discipline Procedure, when making a decision, the [Disciplinary Review Panel] is entitled to have regard to an employee’s employment history.

You [sic] previous conduct is outlined as follows:

[Nine dot points of text concerning conduct-related matters in the period August 2000 to December 2013.]

Your employment history appears to demonstrate a repeated disregard for the Code of Conduct and the consequences of breaching it.

As such, the preliminary view of the appropriate disciplinary outcome for you is as follows:

Dismissal

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 ten (10) working 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 the Sydney Trains email address [email address].

Sydney Trains does not require you to attend or be involved in work from receipt of this letter until the final outcome has been communicated to you.

A final decision in relation to the disciplinary outcome will be made generally within ten (10) working days of the receipt of any submission you should choose to make. …”. (Italics and bold in original)

[23] Arrangements were made for Mr Mercieca’s correspondence to be provided personally to the applicant that same day. The letter from Mr Mercieca advising that the preliminary decision was dismissal was given to the applicant in a meeting on 26 November 2019 (being a matter to which I will return later in the decision, because what occurred that day was to form a new and supplementary matter in relation to the final decision to dismiss).

[24] Following the correspondence from Mr Mercieca to the applicant advising the preliminary view was that dismissal was the appropriate disciplinary outcome concerning the interactions on the XPT, the applicant’s union, the Rail, Tram and Bus Union (NSW) Branch (“the Union”), became involved. It at least appears the applicant had not previously engaged with the Union, or engaged in any substantive way, about matters concerning processes that had followed upon the XPT-related allegations. As noted earlier, the applicant did not, at least until the time he was advised that the preliminary view of the appropriate disciplinary outcome was dismissal, have any proper appreciation of the gravity or import of the process that had to then been unfolding.

[25] On 10 December 2019, the Union wrote to Mr Mercieca on behalf of the applicant requesting a review of the proposed sanction of dismissal and setting out reasons in support of that review. In his evidence, Mr Mercieca indicated that he considered the points raised by the Union on behalf of the applicant and did not consider his decision to be harsh.

Confirmation of the respondent’s preliminary decision to dismiss – 9 January 2020

[26] On 9 January 2020, Sue Close (Deputy Executive Director, Customer Delivery (Region 1) Customer Service, Sydney Trains) wrote to the applicant confirming the preliminary decision to dismiss and referring also to another matter. That is, the letter advised that the “final view of the appropriate disciplinary outcome” was dismissal. The letter was signed by Ms Close, because Mr Mercieca was on leave at the time, and read:

“Dear Mr Cahill

Your written response to the proposed preliminary disciplinary outcome from the findings of the Disciplinary Investigation that you breached the Transport Code of Conduct (Our Code of Conduct) has now been considered.

Sydney Trains is satisfied that you engaged in the conduct as outlined in the allegations. By engaging in this conduct, you breached Our Code of Conduct, in particular sections:

• Section 3 - Staff Responsibilities; and

• Section 12 - Bullying, harassment, discrimination and inappropriate workplace conduct

By engaging in this conduct, you also breached the Employee Pass conditions of use as detailed in the Sydney Trains & NSW TrainLink Employee Passes Booklet, specifically:

• General Pass conditions

• Misuse of passes

The conduct that has been substantiated amounts to a significant and serious breach. Sydney Trains has considered your employment history as per your preliminary letter; and your responses during the investigation prior to making a final decision.

Additionally, Sydney Trains considered your behaviour during a meeting with Mr Ron Churchman and Ms Ellen Beggs on 26 November 2019; where you were issued with your preliminary letter. During this meeting you refused to return Sydney Trains issued property and raised your voice in a loud and aggressive tone whilst pointing your finger at Mr Churchman and Ms Beggs, respectively; the latter of which you stood over whilst she was seated. Your behaviour during this meeting was considered aggressive and inappropriate.

Having considered the above, the final view of the appropriate disciplinary outcome for you is as follows:

Dismissal

Please note that your personnel records will be marked that you are not suitable for re-hire.

Request for Review

Under the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW, permanent Sydney Trains employees may access a review process on grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable.

Any request for review is to be made to the Secretariat, Transport for NSW Disciplinary Panel within ten (10) working days of receipt of this letter. The form for requesting a review can be found on the Sydney Trains intranet [details].

If a request for review has not been received by the end of the ten day period, the above penalty will be implemented and your employment will be terminated effective from this date, in accordance with clause 19.2 of the Sydney Trains Enterprise Agreement.

If a request for review is submitted and received by the end of the ten day period, the above termination will not take effect until the review has been completed. If the outcome of the review confirms that the decision of dismissal is upheld, your employment will be terminated effective from the date of the appeal decision response letter.

A copy of this decision will be placed in your personnel file. …”. 6 (Italics, bold and underline in original)

Review by the Transport for NSW Disciplinary Panel

[27] On 9 January 2020, the applicant lodged a form seeking a review of the respondent’s dismissal decision by the Transport for NSW Disciplinary Panel. On 28 January 2020, the Union wrote a more formal submission to the Secretariat of the Transport for NSW Disciplinary Panel requesting a review of the proposed sanction of dismissal on the basis it was harsh and unreasonable. Among other matters going to a range of issues in support of a review of the decision to dismiss the applicant, the Union wrote:

“Investigation Report

It is noted Mr Cahill was only given access to view the analysis/summary of the report. The attachments, statements and names were retracted from the report.

The RTBU submits Sydney Trains has denied Mr Cahill procedural fairness by not providing full access to the report. This has hindered Mr Cahill’s capacity to fully respond to the report.

Mr Cahill submits the following:

1. [Paragraph 41 in] the report shows one of the witnesses believed Mr Cahill was an employee of the Rai [sic] industry. At [paragraph 42] one witness brought it upon themselves to contact the Rail Operations Centre (ROC) to check whether Mr Cahill is a railways employee.

We have serious concerns as to why the ROC was contacted by the witnesses as verifying to see if a passenger is a rail employee does not seem to be normal practice or proper procedure.

By involving the ROC it seemed to escalate the current situation as Mr Cahill received a call from Mr Brian King who works at the ROC advising there has been a complaint made by a lady and there would be consequences.

We believe this should not have happened to Mr Cahill because:

1. Not proper procedure to seek whether or not a passenger is an employee

2. Contacting the ROC to contact Mr Cahill directly about a complaint and threatening there will be consequences.”

[28] The Union also outlined and elaborated upon reasons as to why it contended, in effect:

• the proposed penalty was “extremely harsh”;

• the employee travel pass conditions and the Code of Conduct were not applicable; and

• that alternatives short of dismissal should be considered.

[29] In a letter dated 24 February 2020 (apparently not received by the applicant until 6 March 2020), Nicholas Davison, A/Secretariat Transport for NSW Disciplinary Panel, wrote to the applicant affirming the decision of the respondent to dismiss him in the following terms:

“Dear Mr Cahill

Request for Review of Disciplinary Decision

I refer to the Notice of Disciplinary Penalty Review submitted by the RTBU on your behalf on 28 January 2020.

At its meeting on 19 February 2020, the Disciplinary Panel gave consideration to your submission in accordance with the Sydney Trains Interim Discipline Penalty Review Process Guidelines.

Taking into account the submission accompanying the Notice of Disciplinary Penalty Review, the Disciplinary Panel decided:

a. the disciplinary decision was not harsh, unfair or unreasonable; and

b. to affirm the original Sydney Trains disciplinary decision of Dismissal.

A copy of this letter has been provided to Sydney Trains.”

The bases for the dismissal

[30] As may be seen from the foregoing, in making its final decision on 26 November 2019 to dismiss the applicant, the respondent was satisfied that:

• the applicant engaged in the conduct as outlined in the allegations;

• by engaging in this conduct, the applicant breached the Code of Conduct, in particular section 3 (dealing with staff responsibilities) and section 12 (dealing with bullying, harassment, discrimination and inappropriate workplace conduct);

• by engaging in this conduct, the applicant breached the conditions for the use of employee passes (being passes which relevantly entitle employees of the respondent to free travel or discounted travel on its own services and certain other transport services), specifically general pass conditions and misuse of passes; and

• the conduct that had been substantiated amounted to a significant and serious breach.

[31] The respondent indicated the applicant’s employment history and his responses during the investigation had been considered before making a final decision. Additionally, the respondent considered the applicant’s behaviour during the meeting on 26 November 2019 when the applicant was advised that the preliminary view of the appropriate disciplinary outcome was dismissal – with such behaviour considered as aggressive and inappropriate.

Valid reason - the Code of Conduct

[32] Transport for New South Wales, a NSW Government department, has promulgated a code of conduct titled Our Code of Conduct (i.e. the Code of Conduct referred to in this case) which, as of the July 2018 iteration of the document, applied to agencies including Transport for NSW, Department of Transport, Roads and Maritime Services, Sydney Trains, NSW Trains, State Transit and Sydney Metro. 7 Section 1 of the Code of Conduct explains:

“1. Introduction

The Transport Code of Conduct outlines the standards of behaviour expected of staff in the transport agencies listed below:

• Transport for NSW (TfNSW);

• Department of Transport;

• Roads and Maritime Services (RMS);

• Sydney Trains;

• NSW Trains;

• State Transit;

• Sydney Metro.

The Code of Conduct will help us build a values-based organisation that ensures insofar as reasonably practicable that our vision promotes and maintains public confidence and trust in our work.

It provides a framework for appropriate behaviour during our interactions with customers, stakeholders and each other, and outlines the standards required to guide our decisions, actions and ethical behaviour in the performance of our duties.

To meet these expectations we are all responsible for understanding the requirements of the Code of Conduct which must be read in conjunction with Transport and agency policies, procedures and industrial instruments. We are all accountable for our actions and behaviours, including any failure to take action. You must seek guidance from your manager if you require further clarification, or if you find yourself in a position where you are unsure how to act. …”. (My underlining)

[33] Thus, the Code of Conduct applies to standards of behaviour expected of employees “in the performance of our duties”, that is in the performance of the employees’ duties being employees who have as their employers Transport for NSW, the Department of Transport, Roads and Maritime Services, Sydney Trains, NSW Trains, State Transit and Sydney Metro.

[34] When the applicant was on the XPT on 10 August 2019, he was on annual leave. Clearly, the applicant was not engaged in the performance of any duties for the respondent (or any of the other agencies referred to in section 1 of the Code of Conduct) or, for example, on work-related travel.

[35] The preliminary dismissal letter and the final dismissal letter each first referred to section 3 of the Code of Conduct. Section 3 of the Code of Conduct addresses “Staff responsibilities”, reading:

“3. Staff responsibilities

You are responsible for familiarising yourself with agency policies and procedures, and complying with them. You are also responsible for making enquiries if you are unsure about what actions to take.

You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace.

You must:

• treat our customers and colleagues fairly, consistently and with respect;

• behave in a lawful, professional and reasonable manner and always act in the best interest of Transport;

• comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you;

• understand the duties, responsibilities and accountabilities of your role, and perform these safely, honestly, courteously and fairly;

• make impartial decisions that demonstrate your agency’s values and promotes confidence in the integrity of public administration;

• comply with reasonable lawful requests, directions and instructions given in the course of your duties by any person with authority to do so;

• maintain the integrity, confidentiality and security of corporate information;

• report unethical, dishonest and/or corrupt conduct;

• not discriminate, harass, bully or engage in inappropriate workplace conduct;

• not gamble, including online gambling, in the workplace and, in vehicles or vessels using official devices, during paid work time (excluding established practices such as Melbourne Cup sweeps, self-administered football tipping and lottery syndicates); and

• present yourself in a professional manner, including wearing the designated uniform for your agency and required safety gear appropriate to operations.

Nothing in this Code of Conduct affects your rights to participate in lawful industrial activities.”

[36] As noted earlier, Section 1 of the Code of Conduct refers to standards of behaviour expected of employees “in the performance of our duties”.

[37] Mr Mercieca provided evidence as to why it was contended in the respondent’s case that the then Sydney Trains employee/applicant and the three NSW Trains employees were “colleagues” in the following way:

“14. Transport for NSW is the lead agency of the NSW Transport Cluster. Agencies within the NSW Transport Cluster are Sydney Trains, New South Wales Trains, State Transit, Sydney Metro and NSW TrainLink. All employees across the NSW Transport Cluster are colleagues and the Code of Conduct is expressed to apply to staff within Transport for NSW, Department of Transport, Roads and Maritime Services, Sydney Trains, NSW Trains, Statement [sic; State] Transit and WestConnex Delivery Authority 8.” (My underlining)

[38] Other than Mr Mercieca asserting it to be so in his evidence, I discern no basis to conclude that, without anything more, employees who are employed within disparate transport agencies are “colleagues”. However, it may be the case that the HR-type moniker of “colleagues” would be appropriate in the following types of employment circumstances: e.g. if employees were working together on an inter-agency project; if employees were attending an inter-agency meeting involving employees of different transport cluster employers; or if employees of different agencies were engaged in the performance of their work which otherwise involved work-specific interactions in the performance of their respective duties. Mr Mercieca’s evidentiary assertion is not one which finds any basis or definition in the Code of Conduct itself; there is no employment-specific definition of the word “colleagues”. Moreover, there is no support that may be drawn from the Sydney Trains Enterprise Agreement 2018 (AG2018/1312) that he was a colleague of employees presumptively employed under NSW Trains’ own enterprise agreement.

[39] The applicant and the three employees of NSW Trains were not, on any description of it, “colleagues”. Transport for NSW has promulgated a policy which operates, umbrella-like, across various entities, but, as I broadly understand it, Transport for NSW is not, in and of itself, the employer of employees other than its own. The applicant was employed by the respondent and the three employees were, and are, employees of NSW Trains. Sydney Trains and NSW Trains are different entities and they are different employers.

[40] More specifically as to the particular factual circumstances of this matter, the applicant resides in Sydney and the three employees of NSW Trains provided Albury-based work addresses; Sydney and Albury are several hundred kilometres apart. While XPT services relevantly involve arrivals and departures at the Grand Concourse of Sydney’s Central Station, the applicant worked at a suburban station which is not a scheduled stopping point for Melbourne-Sydney XPT services. The three employees may occasionally work on an XPT service involving Sydney’s Central Station, but their usual rostering at least appeared to be Albury/Melbourne/Albury. The applicant once worked at Sydney’s Central Station for about four months, and that was some five years prior to the dismissal. The applicant and the three employees of NSW Trains have never worked together and they had no interaction as “colleagues” on the XPT. Despite an assertion by one of the respondent’s witnesses in her evidence, employees of the respondent and NSW Trains do not, for example (uniformly or invariably) “work at the same stations” and they do not “wear the same uniform”. The applicant was a holidaying passenger/customer on an XPT; he was not a “colleague” of the three employees of NSW Trains either on the XPT journey or more broadly in an employment context.

[41] Section 12 of the Code of Conduct deals with “Bullying, harassment, discrimination and inappropriate workplace conduct”. It reads:

“12. Bullying, harassment, discrimination and inappropriate workplace conduct

We have zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct. You must treat all colleagues, customers and members of the public fairly, with dignity and respect. The manner in which such behaviour will be managed are [sic] set out in the Transport Prevention and Management of Bullying and Harassment Policy, Discrimination Free Workplace Policy and relevant agency procedures.” (My underlining)

[42] As to those parts of the dismissal decision which related to “Bullying, harassment, discrimination and inappropriate workplace conduct”, I can only note that the “workplace conduct” to which reference is made in Section 12 of the Code of Conduct must reasonably be conditioned by the words “in the performance of our duties” within the meaning of section 1 of the Code of Conduct. It may be noted, however, that the Code of Conduct also contains text which reads: “You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace.” Here, there was no evidentiary hint of any reputational damage caused by the applicant to the respondent.

The Sydney Trains & NSW TrainLink Employee Passes Booklet

[43] The final dismissal letter continued that, by engaging in conduct which particularly breached sections 3 and 12 of the Code of Conduct, the applicant “also breached the Employee Pass conditions of use as detailed in the Sydney Trains & NSW TrainLink Employee Passes Booklet”. It may be noted that the Sydney Trains Enterprise Agreement 2018 makes reference to entitlement to travel passes pursuant to the terms and conditions in the “Employee passes booklet 2011”, but that booklet effectively has been superceded by terms and conditions now set out in the 2018 booklet including its new Annexure A.

[44] The dismissal letter specifically identified “General Pass conditions” and “Misuse of passes” of the Sydney Trains & NSW TrainLink Employee Passes Booklet (“the Passes Booklet”). The part of the Passes Booklet concerning general pass conditions relevantly reads, at page 3:

“General Pass conditions

…

Employees using passes to travel are ambassadors of Sydney Trains and NSW Trains. When using a pass (both during and outside work hours) pass holders must always uphold the values and professional standards outlined in the Code of Conduct, other relevant Codes and the Customer Service Commitment/Charter. …”.

[45] The applicant paid the full fare, at ordinary market rates, for his trip from Melbourne to Sydney in a sleeper cabin; the applicant’s pass could not be used to obtain any discount on a sleeper cabin on any trip on any XPT. The applicant also paid the full XPT fare, at ordinary market rates, for the Melbourne to Albury leg of the journey; the applicant’s travel pass could not be used to obtain any free travel or any discounted/subsidised price on any component of his travel within Victoria and he had otherwise exhausted any entitlement under the Passes Booklet to use an interstate voucher for that year. It appears from the submissions for the respondent, albeit there was no evidence as to this and it was otherwise somewhat unclear, that once on the NSW side of the border (on the Albury to Sydney leg of the travel on the XPT), the applicant obtained free travel for a first class ticket by virtue of his travel pass entitlements to the value of about $88.00 (albeit while separately personally paying the full price for the additional cost of the sleeper cabin). The applicant was not obtaining any free or discounted travel in his journey on the XPT on 10 August 2019 between Melbourne and Albury. If the applicant was not “using” his pass to obtain free or discounted travel at the time of the interactions (he had pre-paid the full fare for the Melbourne to Albury leg of travel on the XPT), the general conditions of the Passes Booklet were not engaged – relevantly including the text which reads: “When using a pass (both during and outside work hours) pass holders must always uphold the values and professional standards outlined in the Code of Conduct …”.

[46] At the time of the interactions between the applicant and the three employees of NSW Trains, the XPT on which the applicant was travelling was well-within Victoria, less than an hour out of Melbourne. That is, the service had left Melbourne at about 7.50pm and the applicant entered the buffet car of the XPT to buy beer about ten minutes later at around 8.00pm; the final interaction was around 8.40pm. Due to the operation of the travel pass arrangements and the exhaustion of his 2019 interstate voucher entitlements, it was simply not available to the applicant to travel using his respondent-issued travel pass on this particular trip on the XPT so as to obtain any free or discounted travel from Melbourne to Albury. I specifically reject the contentions in the respondent’s case to the effect that seeking to dissect the journey is an “artificial distinction”. I find the applicant was not - as a matter of fact, as a matter of geography and as a matter of full fare payment - “using”, within the meaning of the Passes Booklet, his respondent-issued travel pass (or an interstate voucher) on the Melbourne to Albury leg of the journey so as to have any free or discounted travel when the interactions with three NSW Trains employees occurred on 10 August 2019, less than an hour out of Melbourne. The applicant booked a separate private ticket for Melbourne to Albury while also paying full fare on the XPT for the sleeper cabin for that leg of the trip to Melbourne.

[47] As the applicant had paid the full fare for the Melbourne to Albury leg of travel on the XPT on 10 August 2019, the applicant was not, at the time of the interactions with the three employees of NSW Trains and within the meaning of the Passes Booklet “ambassadors of Sydney Trains and NSW Trains”. The applicant was not, again within the meaning of the Passes Booklet, “using a pass”, either during or outside work hours; and he was not, thereby, required by the provisions of the general pass conditions of the Passes Booklet to “always uphold the values and professional standards outlined in the Code of Conduct, other relevant Codes and the Customer Service Commitment/Charter.” For the reason that the applicant was not “using his pass”, the Code of Conduct was not engaged (even if, contrary to my findings, it had any relevance in any event).

[48] The respondent alleged in the dismissal letter that the applicant also breached the Passes Booklet specifically as to “Misuse of passes”. I set out below, in full, what the Passes Booklet addresses at page 5 in terms of misuse of passes:

“Misuse of Passes

An employee may be subject to disciplinary action including dismissal if he/she misuses or contributes to the misuse of any pass.

A former employee may have their pass benefits permanently cancelled if they misuse or contribute to the misuse of a pass.

All pass use must be in accordance with the Transport Administration Act 1988 and the Rail Safety Act 2000 and pass holders must always adhere to pass conditions of use including:

• Only original passes may be used for travel

• Only the person/s named on the pass can use the pass.

Examples of misusing a pass include (but are not limited to):

• An employee allowing another person to use their pass

• Making a false application for travel benefits e.g. for passes/vouchers

• Allowing ineligible person/s to benefit from travel benefits

• Altering a pass.

A pass may be temporarily confiscated (pending the outcome of an investigation) where:

• An employee has brought Sydney Trains, or NSW Trains or TfNSW into disrepute or has misused their pass; or

• A pass holder (i.e. a former employee or a family member) has misused a pass.

Passes always remains [sic] the property of Transport for NSW and can be confiscated and/ or cancelled for any breach of pass conditions, breaches of the Transport Code of Conduct, the Customer Service Commitment/ Charter or non-compliance with other relevant Sydney Trains, NSW Trains or TfNSW policies or guidelines.”

[49] The types of conduct comprehended by the Passes Booklet involve impropriety-type or dishonesty-type conduct in, for example, an employee of the respondent allowing another person to use the travel pass; making a false application for travel benefits; allowing ineligible persons to benefit from travel benefits; and altering a pass. Here an allegation of misuse of the travel pass was one of the grounds for dismissal of the applicant.

[50] There is no basis upon which it could be concluded that the applicant engaged in “misuse” of his travel pass on 10 August 2019, or indeed at any time on the round trip from Sydney to Victoria, and back to Sydney – even via the circuitous path that was adopted in suggesting that the purported breach of the Code of Conduct resulted in the misuse of the travel pass by the applicant. The allegation is baseless. The applicant used his travel pass in a way that was entirely conformable with his entitlements; and the applicant personally fully paid for, or made private arrangements for a lift, in relation to all other components on his original and then revised itinerary for his holiday at Mount Hotham.

[51] Based on the foregoing, I find there was no valid reason for the dismissal based on the alleged breaches of the Code of Conduct or the Passes Booklet because these instruments and, hence, the rights and obligations were not engaged at the time of the interactions on the XPT between the applicant and the three employees of NSW Trains.

Valid reason - Allegations (a) to (e)

[52] If I am wrong in finding there was no valid reason because the Code of Conduct and the Passes Booklet were not engaged, it is apposite to address the substantive matters addressed in Allegations (a) to (e). Evidence related to the applicant’s trip on the XPT on 10 August 2019 was given by the applicant, on his own behalf. In the respondent’s case (with the names listed in the order in which they effectively first interacted with the applicant, rather than in the order in which they were called to give evidence), evidence was given by the following witnesses:

• Murray Fraser, Passenger Service Supervisor with NSW Trains;

• Jesse Jacobson, Passenger Attendant with NSW Trains (who was temporarily acting in the higher role of Senior Passenger Attendant on the XPT on which the applicant was travelling); and

• Lauren Webster, Passenger Attendant with NSW Trains.

[53] Zara Elliot, a passenger on the XPT, also gave evidence.

[54] No evidence was adduced by the following individuals who are/were employees of Sydney Trains’ Rail Operations Centre (“the ROC”), which controls Sydney’s rail network, and who had involvement in the matters that unfolded on the XPT while it was in less than an hour outside Melbourne:

• Rick Klemesrud (whose position with the ROC was not identified) who was telephoned by Mr Fraser about the applicant and who, in turn, later made a telephone call to Mr Fraser about the applicant; and

• Brian King (who had been the applicant’s duty manager/supervisor but whose position with the ROC was not identified) who telephoned the applicant after Mr Fraser had his first telephone conversation with Mr Klemesrud.

[55] The telephone calls involving, respectively, Mr Fraser, Mr Klemesrud and Mr King concerning the applicant featured in the allegations and in the decision to dismiss in that Allegation (d) read: “Your conduct was reported to the Rail Operations Centre [by Mr Fraser to Mr Klemesrud] and subsequently [Mr Fraser], heard yelling coming from your cabin.” Mr Fraser did not know who the applicant was having a telephone conversation with, other than he assumed it was someone from the ROC; the applicant’s evidence was that it was Mr King who telephoned him.

[56] The statements of evidence of the witnesses in the respondent’s case included and adopted earlier statements and associated annexures (such as emails) made in connection with the investigation that was initially commissioned by the respondent. I will refer to the earlier statements as the “investigation statements”. To recap, the five allegations made by the respondent concerning the applicant’s conduct on the XPT were set out as follows:

“On Saturday 10 August 2019, while travelling as a passenger registered as a Sydney Trains’ employee on a train service between Melbourne and Sydney, you engaged in inappropriate conduct toward NSW TrainLink employees.

The particulars of this allegation are:

b) During the journey, you approached Senior Passenger Attendant, Mr Jesse Jacobson, at the buffet counter and requested to purchase two beers. Mr Jacobson restricted your purchase to one beer and you became annoyed and argumentative stating to Mr Jacobson words to the effect of “I haven’t been drinking and you are saying I’m drunk.”

d) Your conduct was reported to the Rail Operations Centre and subsequently, Passenger Service Supervisor, Mr Murray Fraser, heard yelling coming from your cabin.

Allegation (a) – Travel using employee pass

[57] Allegation (a) was that: “On 10 August 2019, you travelled on NSW TrainLink Service ST22, Melbourne to Sydney, using your Sydney Trains’ Employee Pass. This service departed Melbourne at around 19:50 hours and you occupied cabin A29.”

[58] The applicant did travel on an XPT on 10 August 2019 which departed Melbourne’s Southern Cross station destined for Sydney’s Central Station at about 7.50pm, and occupied cabin A29. This is a matter of common ground.

[59] As I have outlined earlier, the applicant did not, however, travel using the employee pass issued to him by the respondent for the travel between Melbourne and Albury as he was a full fare-paying passenger on that leg of the journey. The respondent’s submissions indicated the applicant received a benefit of approximately $88.00 for his first class ticket entitlement by virtue of using his respondent-issued employee pass between Albury to Sydney (while otherwise paying full market rates for his sleeper cabin for the entirety of the travel between Melbourne and Sydney).

[60] I find Allegation (a) is not made out as to the travel on the XPT involving use of the applicant’s travel pass for the journey between Melbourne and Albury. Allegation (a) is correct only as to the using of the travel pass for the journey between Albury and Sydney as to the benefit of a first class ticket in the amount, the submissions indicated, of $88.00.

Allegation (b) – Interaction with Mr Jacobson in first attendance at buffet counter

[61] Allegation (b) was that: “During the journey, you approached Senior Passenger Attendant, Mr Jesse Jacobson, at the buffet counter and requested to purchase two beers. Mr Jacobson restricted your purchase to one beer and you became annoyed and argumentative stating to Mr Jacobson words to the effect of “I haven’t been drinking and you are saying I’m drunk.”

[62] The applicant did approach the buffet counter on the XPT at approximately 8.00pm, where (Acting) Senior Passenger Attendant Mr Jacobson was serving. Mr Jacobson mistakenly thought the applicant had already been drinking alcohol. As it was put colloquially in an emailed report prepared by Mr Fraser on 13 August 2019 about train delays, Mr Jacobson “believed he [the applicant] may have had a few prior to boarding”. Mr Jacobson mistook the applicant’s hurry or eagerness to buy two beers as a sign the applicant may be intoxicated. The applicant’s hurry or eagerness to buy two beers was attributable, however, to him wishing to watch the Bledisloe Cup without missing the game and having to walk backwards and forth through two carriages from his sleeper cabin to the buffet counter. The applicant is “a big fan of the Wallabies and unfortunately they do not win very often” and the first game of the 2019 Bledisloe Cup series was about to start. The applicant wanted to order the beers before the game started so he could watch the game on his phone.

[63] Mr Jacobson did restrict the applicant to the purchase of one beer. The applicant had not been drinking alcohol at any time that day before approaching Mr Jacobson and the applicant was not drunk. He had dined at McDonald’s and he was otherwise lugging his ski gear and other luggage around to check-in for the travel on the XPT. Given RSA-type obligations 9, presumptively it would not have been open to Mr Jacobson to sell the applicant one beer, let alone two, if he in fact considered the applicant was intoxicated. I find that Mr Jacobson did not, within terms, state to the applicant he was “drunk”. Nonetheless, the clear import of Mr Jacobson’s question to the applicant about whether he had been drinking before agreeing to sell him any alcohol at all went directly to questioning the applicant’s sobriety, and the applicant cavilled with that suggestion and the decision to sell him only one beer instead of the two he had asked to purchase. I conclude the applicant did become annoyed and argumentative, involving the applicant quite justifiably and otherwise not unreasonably stating to Mr Jacobson words to the effect as set out in the allegations: “I haven’t been drinking and you are saying I’m drunk.”

[64] While I find Allegation (b) is made out, I find also that Mr Jacobson in fact misapprehended or misinterpreted the situation in his decision not to sell the applicant alcohol until first asking the applicant if he had been drinking and then restricting the purchase to one beer rather, than the two Young Henry’s mid-strength beers that the applicant had requested. The applicant was a customer at the XPT’s buffet counter and Mr Jacobson misapprehended matters. Regardless, it is not a valid reason to dismiss an employee because he was “annoyed” or even “argumentative” about a customer purchase.

Allegation (c) – Interaction with Ms Webster at sleeper cabin

[65] Allegation (c) was that: “While occupying cabin A29, you yelled at Passenger Attendant, Ms Lauren Webster, regarding the restriction of your alcohol purchase and slammed the cabin door in her face, causing her to feel uncomfortable and intimidated.”

[66] In some ways, Allegation (c) is the allegation of most significance – at least given all the descriptions of Ms Webster’s reaction to the matter of her interaction with the applicant at the sleeper cabin and when she subsequently was within the kitchen area of the buffet car. Given the significance or emphasis in the evidence of the interaction between the applicant and Ms Webster, it is appropriate to say at the outset that I do not accept the applicant “yelled” at Ms Webster when they interacted at the respondent’s sleeper cabin.

[67] While perhaps Ms Webster may have perceived what was said by the applicant as involving “yelling”, the following points may be made. In the interaction between the applicant and Ms Webster, she had pressed the button on her two-way radio before the applicant closed the door to his sleeper cabin. The evidence of the three XPT witnesses, other than the applicant and Ms Webster themselves, was as follows:

Mr Jacobson’s account

• In his initial email to David Huxtable (Shift Manager South and West Region) dated 12 August 2019, Mr Jacobson did not report hearing any “yelling” by the applicant. During the meal run by Ms Webster, Mr Jacobson heard only a two-way radio call to Car A for the “PSS” – namely, the Passenger Service Supervisor, Mr Fraser. Mr Jacobson stayed at the buffet counter (suggesting he did not hear anything untoward coming across the radio such as yelling occurring). Mr Jacobson reiterated this account in his investigation statement and he relevantly adopted his investigation statement account in his affidavit without further addition on the matter of what he heard on the two-way radio, for example, as to hearing “yelling” (by the applicant).

Mr Fraser’s accounts

• In his initial email to NSW TrainLink Regional Delays, Mr Fraser did not report hearing any “yelling” over the radio, albeit he did report that when Ms Webster was doing her meal run she then experienced, by his description, the “full anger at the situation so held her finger to engage her radio so we could over hear the situation. I came down but [the applicant] had slammed the cabin door shut by the time I got there. …”.

• In his investigation statement, Mr Fraser said that:

“10. Whilst checking tickets in Car B I became aware of a loud voice coming from my two-way radio. This lasted for approximately 5 seconds and then Ms Webster said over the two way radio “PSS of ST22, this is PA4, please come to Car A.”

• In his affidavit, Mr Fraser relevantly said as follows (bold not reproduced as to documentation identification):

“5. On 11 September 2019 I made a statement (Previous Statement) in the investigation into Mr Cahill’s conduct on that service. Annexed to this statement and marked MF-1 is a copy of that statement. My Previous Statement is true and correct and I wish to adopt it in these proceedings.

6. I was surprised to learn that Mr Cahill was a Customer Service Assistant. Usually when other railway employees travel on the service, they chat about where they work and people we may know in common. In contrast, Mr Cahill did not greet me, did not make any effort to interact with me nor make any eye contact with me when I checked him in.

7. I remember thinking that I was glad Mr Cahill was in a sleeper cabin on his own as it would have been very uncomfortable for anyone else to be in there with him. As I was moving through the train another passenger asked whether there was space in first class to upgrade their ticket and I told them there were no spaces as I did not want to put another passenger in with Mr Cahill.

8. The next time I saw Mr Cahill [after the check-in] was when Lauren Webster called for me on the radio. We have a policy that staff should discreetly hold down the call button on their radio to provide other staff with an indication that there is a problem, if any employee feels unable to directly call for assistance. Ms Webster held down the call button for approximately five seconds before she spoke. During that time I heard Mr Cahill explode at her. Although his words were muffled, I could hear him yelling very loudly.”

[68] Before turning to what Mr Fraser said relevant to Allegation (c), I will first explain why what Mr Fraser said in paragraph 7 of his affidavit cannot be accepted as to declining to upgrade a passenger on account of Mr Fraser allegedly not wanting “to put another passenger in with Mr Cahill” - as a result of matters including the applicant not greeting him, not making any effort to interact with him and not making any eye contact with him when Mr Fraser checked-in the applicant. That is, a diagram showing the layout of Car A (Ms Webster’s Annexure LMW-2) and the passenger manifest for Car A (Mr Fraser’s MF-2) were in evidence. The layout shows nine cabins, each with three seats apiece, numbered (irregularly with missing seat numbers 4, 8, 12, 16, 20, 24, 28 and 32 in the diagram) as follows as to the total of 27 seats with the following seating arrangements drawn from the passenger manifest:

Seat numbers	Passenger manifest
1, 2, 3	- seats A01 and A02 for “crew”, no passenger for A03;
5, 6, 7	- no passenger/s recorded for seats A05, A06 and A07;
9, 10, 11	- seats A09 and A10 for two named passengers, none for A11;
13, 14, 15	- seats A13 and A14 for two named passengers, none for A15;
17, 18, 19	- seats A17/A18 for the sole use of one passenger, none for A19;
21, 22, 23	- no passenger/s recorded for seats A21, A22 and A23;
25, 26, 27	- no passenger/s recorded for seats A25, A26 and A27;
29, 30, 31	- seat A29 for the applicant, none for seats A30 and A31;
33, 34, 35	- seat A33 for Ms Elliot, none for seat A34; no record for A35.

[69] Apart from the applicant, in Car A two other passengers in A9 and A10 were recorded in the passenger manifest as “TE” (connoting “transport employee”, apparently with the same family names for one male and one female passenger); Ms Elliot was recorded as “TV” (on the evidence, it unknown what TV connotes); and the rest of the passengers and crew were recorded as “FT” (again, it is unknown on the evidence what FT connotes).

[70] It may be seen from the table above that three cabins in Car A (those containing seats 5, 6 and 7; seats 21, 22 and 23; and seats 25, 26 and 27) were totally unoccupied in terms of the passenger manifest, and there were other vacant seats within various other sleeper cabins apart from the cabin occupied by the applicant – and therefore available for the passenger’s requested upgrade as identified in Mr Fraser affidavit. It may be noted also that the applicant, in his statement of reply evidence, said as to Mr Fraser’s evidence at paragraph 7 of his affidavit there were other cabins which were not fully booked; the applicant was not challenged on this evidence. I infer that Mr Fraser regrettably may have embroidered matters or assertions so as to cast the applicant in a poor light as to this matter.

[71] Mr Fraser also indicated in his affidavit at paragraph 8 that: “The next time I saw Mr Cahill was when Lauren Webster called for me on the radio.” This evidence cannot be accepted; there is nothing at all in the evidence of any of the witnesses to suggest Mr Fraser “saw” the applicant after Ms Webster had activated her two-way radio. In any event, even Mr Fraser’s own investigation statement, which he otherwise adopted in his affidavit, indicated that, after a short discussion with Ms Webster, he proceeded to the applicant’s sleeper cabin and observed the door was closed and the curtains were drawn, relevantly before checking the passenger manifest and discerning (plainly incorrectly) that the applicant was an employee of “Transport for New South Wales”. The applicant was employed, I reiterate, by the respondent, Sydney Trains.

[72] I do not accept Mr Fraser’s description that he heard the applicant “explode” at Ms Webster. It also may be noted that in his affidavit Mr Fraser said “Although his words were muffled, I could hear [the applicant] yelling very loudly” - with the descriptor “yelling very loudly” representing, I note, somewhat of a marked expansion on what was initially described in Mr Fraser’s investigation statement of hearing “a loud voice”.

[73] Last, on this topic of the applicant “yelling” at Ms Webster, there was the evidence of Ms Elliot, a passenger in the adjoining cabin who overheard, but did not see, the interaction between the applicant and Ms Webster (whose names/identities she did not then know). Ms Elliot’s affidavit adopted what was said in her investigation statement, as follows. Ms Elliot described hearing the male occupant (the applicant) in the adjoining cabin speaking to a female using what was a “loud” (and “obnoxious and overbearing”) voice about the consumption of alcohol, which became “increasingly louder” (and “very heated and overbearing”). In Ms Elliot’s opinion, the applicant showed Ms Webster “a distinct lack of respect and appeared to not to want to listen to what [Ms Webster] said in response.” Ms Elliot continued in her investigation statement as follows: “Having experienced similar scenarios myself, I imagined [the applicant] to be standing over [Ms Webster] and talking down to her.” Ms Elliot also said Ms Webster maintained a reasonable tone of voice and a calm composure, and spoke to the applicant in a respectful manner. Ms Elliot asserted that she heard the applicant slam the door, albeit, I note, Ms Elliot could not have known who it was who “slammed” the door of the applicant’s cabin.

[74] I find the applicant spoke to Ms Webster in a “loud” voice. At what might be regarded as its peak (when the applicant activated her two-way radio), bearing in mind that Ms Elliot said the male voice became louder, Mr Jacobson heard nothing other than Ms Webster radioing for Mr Fraser and Mr Fraser’s initial description was that he heard a “loud” voice. Speaking in a loud voice and “yelling” are qualitatively different, albeit it may be accepted the applicant should not have raised his voice at all in his discussion with Ms Webster.

[75] I do not accept the evidence from Ms Webster and Ms Elliot that Ms Webster acquitted herself in an entirely professional manner in the circumstances regarding the applicant, and I infer that may have been the product of comparative inexperience. Ms Webster had commenced employment with NSW Trains in January 2019 as a passenger attendant and, it appears, had about two weeks of initial training. At the time of the interaction with the applicant on the XPT on 10 August 2019, Ms Webster therefore had about eight months of employment in her role. Ms Webster determined to engage with the applicant (perhaps to try to deflect a complaint being made by the applicant about her colleague, Mr Jacobson), rather than de-escalating matters or just removing herself from the situation. Depending on whose view of what was said, perhaps a more appropriate response in relation to the applicant seeking from Ms Webster the name of “that bloke” (Mr Jacobson), so as to make his foreshadowed customer complaint, may have been something along the following lines: “Mr Cahill, you’ll appreciate that I’m not at liberty to provide the names of staff on this service, but I’ll ask my supervisor to come to see you and you can discuss obtaining that information from him. My supervisor would be able to provide you with relevant details if you wish to make a complaint. If you lodge a complaint, our [however described] Customer Complaints Unit will take it from there. Now, Mr Cahill, unless there is anything else I can assist you with concerning a dinner order, I’ll move onto the next cabin to take any dinner orders from other passengers.”

[76] Instead, Ms Webster determined to debate or argue with a customer who was disgruntled about having been considered to have been/had been called “drunk” in connection with Mr Jacobson’s approach to serving him. I do not accept Ms Webster’s assertions that she effectively was trapped outside the applicant’s sleeper cabin; she could readily have moved along the corridor to the left or the right, away from the applicant’s sleeper cabin; there were passengers in one direction (as shown by the passenger manifest), and both crew and passengers in the other direction. I also do not accept Ms Webster’s evidence at paragraph 15 of her affidavit that “Neither Mr Cahill nor Mr Jacobson referred to Mr Cahill being “drunk”.” The whole premise of what the applicant was articulating in his first interaction at the buffet counter was to the effect of the applicant stating to Mr Jacobson that he had been saying he (the applicant) was “drunk”. It would seem odd, as was later outlined in Ms Webster’s investigation statement, given her two weeks of training including conflict training, Ms Webster would have prefaced certain comments to the applicant with “Your behaviour now, can you understand that it’s not normal?”, before then stating words to the effect to the applicant that he was aggressive and rude, and making her feel uncomfortable and intimidated; and/or that she also stated to the applicant “Please stop”. Commenting to a customer words to the effect that he or she was “not normal”, or his or her behaviour was “not normal”, would seem an odd approach indeed for a person properly trained or experienced in conflict resolution or de-escalation techniques with customers.

[77] The second limb of Allegation (c) was that the applicant slammed the door of the sleeper cabin in Ms Webster’s face. It is common ground that it was the applicant who closed the door of the sleeper cabin – thereby it was at his initiative, however described, that the applicant in fact ended the interaction rather than prolonging it. As to the pejoratively-described “slamming” of the door in Ms Webster’s “face”, this was physically impossible given where the applicant and Ms Webster were standing during their interaction (just as it would have been physically impossible for the applicant to have “stood over” Ms Webster, being a matter which loomed large in aspects of the material concerning the applicant’s interaction with Ms Webster, but which did not, in the end, feature specifically in Allegations (a) to (e)).

[78] Even if it were accepted that the applicant “slammed” the door, I find it was not slammed in Ms Webster’s face or into her face. The applicant and Ms Webster were never sufficiently physically proximate for the applicant to slam the door in her face or, for example, into her face – such as in a way that might suggest she was, for example, standing a matter of centimetres into an oncoming, slamming door that may have hit her in the face or involved a near-miss. This much is known, on Ms Webster’s account, the applicant was standing in the doorway of the sleeper cabin (on her account, half-in, half-out), whereas the applicant’s account was, in effect, that he did not leave the perimeter boundary of his cabin such as to move into the corridor of Cabin A (which effectively or relevantly runs the length of the carriage alongside the nine sleeper cabins, so as to allow access to the individual cabins). For her own part, Ms Webster had determined to press her back against the window side of the corridor, albeit there was no evidence that it was a result of any physical action on the part of the applicant that caused her to do so (such as, for example, moving out into the corridor to approach her). Ms Webster, for her own reasons, determined to situate herself there. Ms Webster’s diagram of where the applicant was standing and where she was standing shows the two were a corridor-width apart when the applicant supposedly slammed the door in her face. Because of the swing of the door, the applicant had to step back within the sleeper cabin to then close it. The frame/entranceway to the cabin, on the evidence, houses a door that is very narrow – described by Ms Webster as being “incredibly thin” (i.e., in width from door hinge to locking mechanism, not depth).

[79] Even accepting the XPT corridor itself also was narrow (the actual width of the XPT’s corridor in Cabin A was not in evidence, but I am unable to accept Ms Webster’s evidence of a corridor width of about 40-50 centimetres (or about 15-19 inches) as the passageway corridor width on a train operated in Australia for carriage of public passengers), the applicant could not have slammed the door such that the slamming occurred in Ms Webster’s face – unless, for example, she had commenced moving away from the corridor window towards the doorway of the closing door. There is no suggestion that Ms Webster was in the process of, for example, moving away from the corridor window and towards the doorway to the applicant’s sleeper cabin when the door was closed.

[80] I incline to the view the applicant may have effectively slammed the very narrow door to his sleeper cabin (Ms Elliot’s evidence is supportive of hearing a slamming door) as opposed to, for example, gently closing it, but I do not accept the contention the door was otherwise slammed by the applicant in, or into, Ms Webster’s face. I find the applicant decided to close the door as a means to end the conversation with Ms Webster, rather than to allow it to be prolonged.

[81] The third limb of Allegation (c) was in effect that as a result of the applicant yelling and the applicant slamming the sleeper cabin door in Ms Webster’s face, the applicant caused Ms Webster to feel uncomfortable and intimidated.

[82] I will not speak in this decision about essentially private medical or psychological reactions by Ms Webster as to what occurred, other than to say aspects of what Ms Webster described were potentially seemingly somewhat out of proportion even if Ms Webster’s accounts of her interaction with the applicant were taken at their highest. As it happens, I do not accept those accounts at their highest, for aspects of what were described seemed somewhat overblown. I consider that Ms Webster’s evidence about her reactions would have been far more persuasive and generally more credible in the descriptions had there been more elements of moderation or even understatement - rather than overstatement concerning an exchange about the applicant essentially expressing a complaint about Ms Webster’s colleague, Mr Jacobson. To contextualise this:

• I have found that the applicant spoke to Ms Webster in a loud voice, not involving yelling;

• I have found that the applicant most likely slammed the very narrow door (so as to end the interaction rather than prolonging it), rather than closing it gently, but not “in the face” of Ms Webster;

• there was no evidence of swearing or other obscenities by the applicant;

• there was no evidence of language involving personally-directed invective;

• there was no evidence of sexist put-downs, sexual vilification, comments about her body, appearance or similar;

• there was no evidence of threats of harm or injury being made to Ms Webster or anyone else with whom she was associated;

• there was no evidence that the applicant moved from his sleeper cabin out into the corridor where Ms Webster was standing, albeit Ms Webster suggested the applicant was half-in half-out – which might perhaps be the literal case if, for example, the applicant was standing directly under the door frame;

[160] As to s.387(b) of the Act, there was a denial of procedural fairness concerning an opportunity to respond to the reasons regarding the 26 November 2019 meeting.

(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

[161] The singular discussion related to the dismissal was the meeting on 26 November 2019 involving Mr Churchman and Ms Beggs. The applicant did not know there was to be a discussion relating to the dismissal that day, and so could not actually have made any arrangements to have a support person present. The meeting was “sprung” on the applicant. The respondent effectively suggested that it would have been open to the applicant to say: “Stop the meeting; I want a support person to assist in these discussions relating to the dismissal”; and if there was then any relevant refusal, it would be captured by the s.387(c) considerations. Artificial though it seems, the respondent appears, on certain authorities, to be correct – albeit it cannot go unremarked that the practical effect of what occurred constituted an effective denial of allowing the applicant to have assistance at the relevant and critical point in time when he was told about the preliminary decision. Regardless, strictly approached, I do not consider that there was an unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to the dismissal. Moreover, Ms Beggs did permit the applicant to telephone the Union for advice during the meeting and that the officer did assist the applicant with advice, albeit it obviously would have been preferable for him to have been present in person.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[162] This dismissal did not turn on unsatisfactory performance and so it is irrelevant to further consider matters in such respects.

(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

[163] The respondent is a major employer with about 10,000 employees. The procedures adopted by the respondent were broadly what would be expected of an employer of this size and with its access to internal and external dedicated human resource management specialists or expertise.

[164] Nonetheless, given that level of expertise, it is surprising that the respondent should have added-in as a reason for dismissal the 26 November 2019 meeting, without a modicum of procedural fairness concerning that matter.

[165] It is also surprising that Ms Beggs and Mr Churchman (potentially under advice from Ms Beggs that Mr Churchman was adopting an appropriate procedure) were of the understanding that employees should be given no notice about meetings relating to advice concerning preliminary letters about dismissal and/or that this would not occur because it was not “required”. For his own part, Mr Mercieca took a different approach to matters of procedural fairness and the opportunity to arrange a support person for meetings; it may be prudent to promulgate that approach.

(h) Any other matters that the FWC considers relevant

[166] First, counsel for the respondent rhetorically posed a question to the effect of why would the three NSW Trains employees make things up or exaggerate matters about the applicant’s conduct on the XPT? I think that there may well be some basis to the applicant’s own belief or contentions (albeit contentions made well-before the Union started representing him) that it was because he had foreshadowed complaints of his own and, in fact, made and continued to agitate about those complaints. Certainly, I accept the applicant’s submissions that the matters have become “distorted and exaggerated” with “hyperbolic” accounts.

[167] Second, I note the Union raised certain matters in its review request dated 28 January 2020 to the Secretariat of the Transport for NSW Disciplinary Panel (as opposed to the respondent). For ease of reference, I again reproduce that part of the Union’s submission:

“Investigation Report

It is noted Mr Cahill was only given access to view the analysis/summary of the report. The attachments, statements and names were retracted from the report.

The RTBU submits Sydney Trains has denied Mr Cahill procedural fairness by not providing full access to the report. This has hindered Mr Cahill’s capacity to fully respond to the report.

Mr Cahill submits the following:

We have serious concerns as to why the ROC was contacted by the witnesses as verifying to see if a passenger is a rail employee does not seem to be normal practice or proper procedure.

We believe this should not have happened to Mr Cahill because:

1. Not proper procedure to seek whether or not a passenger is an employee

2. Contacting the ROC to contact Mr Cahill directly about a complaint and threatening there will be consequences.”

[168] It appears to me irregular, at the least, that a passenger service attendant and a passenger service supervisor decided between themselves that contact should be made with the ROC about a passenger in the circumstances described in this case – let alone what then unfolded in relation to the communications as between Mr Fraser and Mr Klemesrud, and Mr King and the applicant. Mr Campey’s investigation report appeared to proceed on some assumption that the ROC’s interactions in this matter concerning the applicant were not of any note; in any event, they were not questioned in circumstances where those communications were, in my view, questionable indeed and seemingly inappropriate contact and involving potential privacy breaches.

[169] Third, I am bound also to comment on some of the self-serving and otherwise plainly gratuitous comments in the affidavits and investigation statements. These types of matters were not “evidence” as to anything of direct relevance to this application. For example, a theme in the evidence of the three employees of NSW Trains was the contention that those who work in railways (regardless of having different employers) are not only colleagues, but also “family”; and the applicant’s conduct as a customer on the XPT was treated by them as involving something other than customer conduct. As to that, I accept the applicant’s evidence that it is “unusual for someone I have never met to characterise me as part of their ‘family’” and that he does not “consider any of them to be my ‘family’”. In no particular order, some examples included:

Mr Fraser

• “I was surprised to learn that Mr Cahill was a Customer Service Assistant. Usually when other railway employees travel on the service, they chat about where they work and people we may know in common. In contrast, Mr Cahill did not greet me, did not make any effort to interact with me nor make eye contact with me when I checked him in.”

• “I remember thinking that I was glad Mr Cahill was in a sleeper cabin on his own as it would have been very uncomfortable for anyone else to be in there with him. As I was moving through the train another passenger asked whether there was space in first class to upgrade their ticket and I told them there were no spaces as I did not want to put another passenger in with Mr Cahill.”

• “I do not draw any distinction between employees of NSW Trains or Sydney Trains. I view the railway as one big family, so on discovering that Mr Cahill was an employee, I discussed with Ms Webster what we should do. I said to [Ms Webster] words to the effect of ‘As he’s an employee we could call the ROC first for advice, but if you’re not comfortable with that I will just call the police. What do you want me to do?’ [Ms Webster] replied with words to the effect of, ‘You can call the ROC.’”

• “I would not want to work with Mr Cahill and would not want someone like him who does not get on with other people working in my [depot].”

• Webster

• “I was upset by Mr Cahill’s hostile behaviour towards me. Finding out that Mr Cahill was a colleague was even more upsetting. I would expect him to have a greater appreciation for the nature of my role and respect me and my colleagues while we were doing our jobs.”

• “If Mr Cahill was not an employee of Transport, I believe that he would have been removed from the train on 10 August 2019. … In hindsight, I wish I had asked for his removal by the police because his anti social behaviour continued later at the buffet and overhearing that from the kitchen upset me again and made me feel unsafe. I also felt angry that Mr Cahill had accused me of lying. He showed no remorse for yelling at me and did not care how his behaviour may have affected me.”

• “I do not ever want to see Mr Cahill again as I would not feel comfortable near him. If he was reinstated and worked at Central station, I would be worried about seeing him. Mr Cahill demonstrated that he did not care about other people’s experiences.”

• “I do not draw a distinction between NSW Trains or Sydney Trains. We are part of the same family, have one Code of Conduct, work at the same stations and wear the same uniform.”

• “I have never felt so intimidated and to find out it was a fellow staff member was shocking. That behaviour and the way I was spoken to was unacceptable. From someone who is part of our team, someone who should understand our values, I am really disheartened that he would think it was acceptable.”

Mr Jacobson

• “The railway is a family and Mr Cahill’s behaviour had substantially more impact as a result of knowing that he was a colleague. I would expect a colleague, especially one who works in a customer-facing role, to be aware of the impact of their actions, but Mr Cahill’s behaviour was inappropriate.”

• “I was annoyed by Mr Cahill’s behaviour towards my colleagues and do not believe he acted appropriately.”

[170] Last, both parties’ submissions referred to cases and principles concerning out-of-hours conduct. Here, for the reasons outlined earlier, I have not been satisfied that the salient matters relied upon by the respondent in relation to the XPT-related interactions would objectively ground valid reasons for the dismissal of the applicant. This is even more so if matters were considered in the context of the well-established high-bar approach in Rose v Telstra Corporation Limited 17.

Remedy

[171] I am satisfied the applicant has been unfairly dismissed as the dismissal was, as the union submitted, harsh; I am also satisfied that the dismissal was unjust and unreasonable. The decision has elements both of substantive and procedural unfairness. I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act. I am satisfied that reinstatement is the appropriate remedy in this case together with an order to maintain continuity and an order concerning lost pay.

[172] As noted earlier, the respondent employs approximately 10,000 employees. There is nothing arising from the evidence or submissions to indicate that reinstatement to the applicant’s former position at the railway station where he formerly worked would be, for example, impracticable.

[173] Obviously, there is no impediment to the applicant’s reinstatement in relation to interactions with the three NSW Trains employees who reside around the Albury area. I would not decline to reinstate the applicant on the off-chance that an XPT on which any one or more of them was working might have an unscheduled stop at the suburban station where the applicant will be returned to work. Similarly, I would not decline to reinstate the applicant on the off-chance that the applicant and any one or more of the three NSW Trains employees might run into each other at Sydney’s Central Station or on the Grand Concourse, or similar.

[174] I would not decline to reinstate the applicant on the basis of any encounter with Ms Beggs. Ms Beggs does not work at the relevant railway station, did not have any cause to visit the station prior to the meeting on 26 November 2019; and, absent any other exigencies where she was requested to attend that station, Ms Beggs apparently would not have any cause to visit the station into the future – she is not an employee of the respondent.

[175] I would not decline to reinstate the applicant on the basis of any encounter with Mr Mercieca. While I have considered the reasons advanced by Mr Mercieca in effect contending against the practicability or suitability of the remedy of reinstatement, my careful consideration thereto would not lead me to conclude that reinstatement should not be ordered. To his credit, the evidence of Mr Mercieca was that he would deal appropriately and professionally with the reinstatement of the applicant following any order of the Commission in such respects and the applicant will be expected by the Commission to do likewise in any or all future dealings with Mr Mercieca. It may be noted, in such respects, that Mr Mercieca had, for example, one previous direct dealing with the applicant about what seems (according to the Union) to be a long-running industrial dispute, involving multi-signatory employee petitioners, about the suitability of respondent-issued uniforms (described as “hot and itchy”) or uniform policy (train crew being allowed to wear shorts, but not the station staff who work outside in the hot weather). The applicant personally sent correspondence about the uniform policy matters to the respondent’s CEO around 2018. For reasons which were unclear and not explained, Mr Mercieca directed the applicant not to raise such matters directly with the CEO in the future. In any event, the applicant did not raise the matter directly with management again and, separately, the applicant essentially spoke favourably about Mr Mercieca’s decision to offer him the opportunity of having a support person for that meeting.

[176] In terms of an order for reinstatement, I have a slight hesitation about interactions between the applicant and Mr Churchman. The two would interact periodically given Mr Churchman’s responsibilities at the relevant station. The applicant and Mr Churchman have somewhat of a history between them, as indicated by the comments the applicant directed at or about Mr Churchman personally in the meeting on 26 November 2019 and also as indicated by the written and oral evidence of Mr Churchman; and he expressed reasons why there may be concern about a reinstatement order. As with Mr Mercieca, and also to his credit Mr Churchman, similarly indicated he would deal appropriately and professionally with the reinstatement of the applicant following any order of the Commission. In such respects and the applicant will be expected by the Commission to do likewise in any or all future dealings with Mr Churchman.

[177] The applicant very much wants his job back and he must work to make sure that the reinstatement is a successful one – and that is so, regardless of what may have happened in the past (and bearing in mind, for example, that Mr Churchman was only the messenger). This will necessarily involve entirely professional conduct by the applicant towards Mr Churchman.

[178] I do not consider there is any basis not to reinstate the applicant on the basis of the respondent’s submission that it is the applicant who has lost trust and confidence in the respondent. Moreover, for the reasons I have outlined earlier, I do not consider the Code of Conduct or the Passes Booklet were engaged and I do not otherwise consider there was any relevant connection established between the applicant’s conduct on 10 August 2019 and his employment (other than the somewhat rather irregular involvement by NSW Trains employees with the ROC).

[179] I have also considered the applicant’s employment record, as it concerns nine matters in the period August 2000 to December 2013 as set out in the correspondence to the applicant related to the dismissal. It may be noted that the first date as to such matters is now about 20 years ago, and the most recent was December 2013 – and none involved, it appeared, actual disciplinary action. Most recently (separately from the dismissal the subject of this application), the applicant received a commendation following a customer compliment dated 30 October 2019, i.e. less than a month before the applicant was given the preliminary outcome letter on 26 November 2019 concerning dismissal.

[180] The matters referred to in the applicant’s submissions favoured the remedy of reinstatement. These included the applicant’s age and length of service; and that notwithstanding his endeavours to find alternative employment he remains unemployed, and the COVID-19 difficulties in finding alternative work. My own consideration of all matters involved in the circumstances of this case, more generally, leads me to the view that reinstatement should be ordered and that there are no matters which would sufficiently militate against that outcome in favour of a different unfair dismissal remedy.

Conclusion

[181] In view of the foregoing, the disposition of the application as to remedy is as follows.

Reinstatement

[182] The respondent shall reappoint the applicant to the position in which he was employed immediately before the dismissal (that is, at the grade and at the same railway station where the applicant formerly was employed) by no later than 21 days after the date of this decision.

[183] Given it appears the applicant has not physically attended the workplace in his employment since 26 November 2019, albeit the culmination of the review processes resulting in the confirmation of the decision to dismiss meant that the formal last date of employment was 6 March 2020, I anticipate that the applicant may require some training or refresher training in the event there have been any, for example, changes to workplace processes at the railway station or workplace health and safety-related changes.

[184] As such, while I consider that the reinstatement order should be operative as to the reappointment no later than 21 days after today’s date, I also consider there should be some appropriate provision for the physical return to work to first attend to any of the types of training or refresher training to which I have referred - particularly noting that the reappointment would otherwise be expected to occur over the Christmas/New Year period.

[185] As such, if there are any such exigences which require training or refresher training I consider that there should be provision such that, by signed written agreement concerning training-specific matters, the applicant’s physical return for the resumption of his ordinary duties may be deferred to a date following such training even if that is a date after the reappointment otherwise takes effect – provided that the deferred resumption of normal duties is not more than an additional 14 days after the reappointment itself takes effect.

Order to maintain continuity

[186] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of the applicant’s employment.

Order to restore lost pay

[187] In connection with the reappointment, I consider it is appropriate to make an order causing the respondent to pay to the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

[188] As at the time of the hearing, the applicant had not been able to find alternative employment notwithstanding his endeavours to find alternative employment. As such, there was no evidence before the Commission concerning:

(a) the amount of any remuneration earned by the applicant 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 applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[189] It is at least possible, however, that circumstances have changed since the last date of the hearing on 9 November 2019 and the date of the reappointment – and that is something that could usefully be the subject of discussion between the parties.

[190] I am cognisant of the fact that, for a complex of reasons (none attributable to the applicant personally, who had pressed for a hearing with a view to reinstatement from the outset - even bypassing the usual staff conciliation in such respects), the hearing of the application that was lodged in mid-March 2020 proceeded to hearing over a number of days in late-October and early-November 2020 – which is a longer delay than usual for applications for an unfair dismissal remedy. Given my own review of the file record and certain audio files, and my consideration of certain materials that were received by me around mid-November 2020, I consider the parties should confer on the topic of an amount for lost wages and superannuation adjustments with a view to attempting to strike a balance that results in a fair go all round. Those discussions will also need to take account of the method of dealing with any pay-outs that were made in connection with the termination of employment, such as accrued but untaken annual leave and long service leave.

[191] If the parties are unable to reach agreement on the amount in question concerning lost pay according to the tenets of a fair go all round, the matter will be relisted in 2021 to give the parties the opportunity to be heard. I will then determine the discrete matter of the amount to restore lost pay.

[192] The parties are to confer on the settlement of draft minutes of an order to give effect to these conclusions, and lodge the draft order by no later than 5.00pm on Tuesday 15 December 2020.

COMMISSIONER

Appearances:

G Morgan-Cocks of the Rail, Tram and Bus Union for the applicant.
J Darams of counsel for the respondent.

Hearing details:

2020.
Sydney:
October 27 to 29 (in person);
November 9 (by telephone).

Final written submissions:

17 November 2020.

Printed by authority of the Commonwealth Government Printer

1 The cover page of the Investigation Report bears a date of 1 November 2019 and describes the document as being a “Draft” version, but the later signature page bears a date and signing of 5 November 2019.

2 The extract of the text was contiguous in the Investigation Report; however, the paragraph numbering is as reproduced in the extract, namely, paragraphs 157, 158 and then, immediately following, paragraphs 124, 125, 126 and 127.

3 It may be noted that this final line reading “Section 3 – Accountability” of the Investigation Report was not otherwise included in its “Executive Summary” at page 3.

4 See paragraph 22 of the Investigation Report concerning methodology, which identifies that (only) “The following were considered and relied upon during the investigation” - “Transport for NSW Managing Conduct and Discipline Policy”, “Sydney Trains Discipline Procedure”, the “Sydney Trains Enterprise Agreement 2018” (Section 1 – Employee Travel Pass), and “Sydney Trains and NSW TrainLink Employee Passes Booklet October 2018”. See also paragraph 23 of the Investigation Report concerning “Transport for NSW Our Code of Conduct”, identifying that it too was considered and relied upon during the investigation. It may be noted that section 12 of that Code of Conduct contains specific reference to the Transport Prevention and Management of Bullying and Harassment Policy.

5 See earlier references concerning the Investigation Report’s methodology at footnote 4.

6 Note: Clause 19.2 of the Sydney Trains Enterprise Agreement 2018 provides, in the case of the applicant, that “The required period of notice” was 4 weeks’ pay plus an additional week of pay given the applicant was aged over 45 years. Clause 19.3. provides for payment in lieu of notice.

Note also that the letter advised that “If a request for review is submitted and received by the end of the ten day period, the above termination will not take effect until the review has been completed. If the outcome of the review confirms that the decision of dismissal is upheld, your employment will be terminated effective from the date of the appeal decision response letter.”

It appears that the letter suggests that, if a request for a review was unsuccessfully made, the employment would be terminated by the respondent effective from the date of the appeal decision. In this case, the review panel letter affirming the original respondent’s original dismissal decision was dated 24 February 2020 and the review panel letter was not provided to the applicant until 6 March 2020. There was no evidence as to the applicant directly having been given relevant advice as to the respondent’s decision to dismiss him on 24 February 2020 or, indeed, on 6 March 2020; or, indeed a period of notice or a payment in lieu of notice (it is unclear, but it seems that the period pending the review outcome serves or is treated by the respondent as a de facto provision of notice). Nonetheless, as to this, see s. 117 of the Fair Work Act which relevantly describes the statute-specified requirements for notice of termination or payment in lieu. That is, an employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given) (s.117(2)). Moreover, s.117(2) provides, as to the amount of notice or payment in lieu of notice, that an employer must not terminate an employee’s employment unless the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or (b) the employer has paid to the employee payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

7 I note the unchallenged evidence of Mr Mercieca (at paragraph 14) that the Code of Conduct applies to staff within “Transport for NSW, Department of Transport, Roads and Maritime Services, Sydney Trains, NSW Trains, Statement [sic; State] Transit and WestConnex Delivery Authority” (my emphasis). It is unclear if there is a more recent iteration of the Code of Conduct to which reference was being made by Mr Mercieca in his evidence or if he was referring to a different earlier iteration, such as the earlier 2015 version attached to the applicant’s evidence. It appears Mr Mercieca’s evidence may be referring to an earlier version of the Code of Conduct, given the changes that have occurred in relation to the WestConnex Delivery Authority.

8 See earlier footnote 7 concerning Mr Mercieca’s evidence as to which employees are covered by the Code of Conduct.

9 The Liquor Act (2007) (NSW) contains responsible service of alcohol definitions (e.g. see s.5 for the meaning of “intoxicated” - the person’s speech, balance, co-ordination or behaviour is noticeably affected, and it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor) and obligations (e.g. see s.73(2), which provides that a licensee or an employee or agent of a licensee must not, on the licensed premises, sell or supply liquor to an intoxicated person). However, s.6(a) of that Act provides that the statute does not apply to or in respect of the sale of liquor to an adult on such trains under the control of Sydney Trains or NSW Trains as are determined by those corporations.

Moreover, the XPT service was within Victoria when the applicant sought to purchase two beers. It is unclear what RSA obligations applied at the time Mr Jacobson determined to allow the applicant to purchase one beer, rather than the two he requested. In such respects, Mr Jacobson’s evidence (at paragraph 11) was, however, that “On the train, we are allowed to sell each passenger two standard drinks per hour, however when I completed my Responsible Service of Alcohol training I was advised to offer any customer who appears particularly eager to buy alcohol a single drink and then monitor their behaviour, as a way of assessing their level of intoxication over a period of time.”

10 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

11 1. “Dave” – David Huxtable, Shift Manager, South and West Region; 2. “Ian” – Ian Mondon, Area Manager, Southern Highlands and Regional South; 3. “Pete” – Peter Bush, Passenger Service Supervisor, South and West Region.

12 Although Mr King referred to the police in his telephone call to the applicant, it is unclear from the evidence whether Mr Fraser directly referred to the police; rather, it appears that the references in the discussion during the applicant’s second attendance at the buffet car relevantly concerned the ROC rather than the police.

13 It may be noted that in an email from Ian Mondon, dated 11 August 2019, in response to Ms Webster’s email of the same date which made no reference to Mr Fraser indicating to Mr Jacobson that he should sell the applicant two beers when he attended the buffet counter for the second time. The email was copied to Mr Huxtable, Mr Bush, Mr Fraser and Kate Trezona, (who is apparently, it seems, either a HR Business Partner or Manager People and Change with NSW Trains). Mr Mondon otherwise commented in part: “In regards to the service of alcohol, we have to abide by the Responsible Service of Alcohol rules and Jesse [Jacobson] was acting within the provisions by restricting the quantity he sold.”

14 Jupiter General Insurance Company Limited v Ardeshir Bomanji Shroff (1937) 3 All ER 67 at 73-74.

15 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.

16 Mark Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services[2020] FWCFB 6429.

17 Rose v Telstra Corporation Limited (1998) AIRC 1592.

Trevor Cahill v Sydney Trains

[2020] FWC 6064

7 DECEMBER 2020

DECISION