Troy Robinson v Sydney Trains - [2017] FWC 5097

[2017] FWC 5097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Troy Robinson

Sydney Trains

(U2017/3055)

COMMISSIONER SAUNDERS

NEWCASTLE, 20 OCTOBER 2017

Application for an unfair dismissal remedy – valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed.

Mr Troy Robinson was employed as a Cleaning Attendant by Sydney Trains from 4 April 2008 until his dismissal on 1 March 2017 on the grounds of serious abuse of a supervisor and co-workers. Mr Robinson filed an application for an unfair dismissal remedy on 20 March 2017 pursuant to s.394 of the Fair Work Act 2009 (Act); he alleges his dismissal was harsh, unjust and unreasonable. Sydney Trains denies those allegations.

The Hearing

This matter was heard by me over two days on 10 and 11 August 2017. Mr Robinson gave evidence in support of his application. Sydney Trains adduced evidence in support of its case from:

·Mr Glen Sanders, Cleaner in Charge at Hornsby Maintenance Centre;
·Mr Gavin Cahill, Cleaner in Charge of Broadmeadow Maintenance Centre;
·Mr David Law, Cleaner in Charge at Hamilton Maintenance Centre; and
·Mr Lansana Dolley, Security Officer of Apex Protection Group.

Initial matters to be considered

Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mr Robinson’s application.

There is no dispute between the parties and I am satisfied on the evidence that:

(a)Mr Robinson’s application was made within the period required in s.394(2) of the Act; and
(b)Mr Robinson was a person protected from unfair dismissal; and
(c)Sydney Trains was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and

(d)Mr Robinson’s dismissal was not a case of genuine redundancy.

Was Mr Robinson’s dismissal unfair?

Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Robinson’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Mr Robinson’s dismissal (s.387(a))?

Legal principles

The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] The reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]

The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[5]

In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]

In cases such as the present, where allegations of misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained"[8] and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"[9] or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".[10] Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.[11]

Valid reasons contended for by Sydney Trains

Sydney Trains initially contended that it had a valid reason to dismiss Mr Robinson because he engaged in the following misconduct:

(a)on 6 February 2016 at the Broadmeadow Maintenance Centre, Mr Robinson failed to treat Mr Cahill with dignity and respect when he used abusive and threatening language towards him, particularly by calling Mr Cahill a “fucking cunt”, a “fucking grub”, a “fucking queer cunt” and threatening Mr Cahill by saying to him, “I am this fucking close” (Allegation 1);
(b)on 11 February 2016 in the carpark at the Broadmeadow Maintenance Centre, Mr Robinson failed to treat Mr Cahill with dignity and respect when he used abusive language towards him, particularly by repeatedly calling Mr Cahill a “fucking cunt” and by saying to him, “You fucking cunt, you’re lining up all the fucking overtime for yourself” (Allegation 2);

(c)on 12 February 2016 during a staff briefing held in the crib room at the Broadmeadow Maintenance Centre at approximately 8:00pm, Mr Robinson failed to treat Mr Cahill with dignity and respect when he used abusive language towards him. In particular, it is alleged that Mr Robinson said to Mr Cahill during the staff briefing “Shut the fuck up, we know what we are fucking doing” (Allegation 3);

(d)on 12 February 2016 at the Broadmeadow Maintenance Centre, Mr Robinson failed to adhere to Sydney Trains policies and procedures by removing Mr Cahill’s “Presentation Flag” from a train (Allegation 4);

(e)on 12 February 2016 at the Broadmeadow Maintenance Centre, Mr Robinson failed to treat Mr Cahill with dignity and respect, particularly by saying to Mr Law within the hearing of Mr Cahill, “Thank fuck you’re here, now we have someone here that has a fucking clue” (Allegation 5);

(f)on 25 February 2016 at the Broadmeadow Maintenance Centre, Mr Robinson failed to treat Mr Waseem Ashrif, a contract security guard, with dignity and respect when he used abusive language towards him, particularly by saying to Mr Ashrif, “Get the fuck out of my room, get your shit and get out of my room” and “turn your fucking radio off it’s annoying listening to that shit” (Allegation 6); and

(g)on 28 February 2016 near the exit gates at the Broadmeadow Maintenance Centre, Mr Robinson failed to treat Mr Touseef Ahmad, a contract security guard, with dignity and respect when he used abusive and threatening language towards him and spat in Mr Ahmad’s face (Allegation 7)

(collectively, the Allegations).

Sydney Trains engaged an external investigator to conduct an investigation into the Allegations. The external investigator found that Allegations 2, 5 and 7 had been substantiated. The investigator found that there was insufficient evidence to substantiate Allegations 1, 3, 4 and 6, but Sydney Trains contends the evidence adduced in these proceedings warrants a finding that Allegations 1, 3 and 6 (as well as Allegations 2, 5 and 7) have been substantiated.

Sydney Trains does not press Allegation 4 in these proceedings. As a result, I will not make any factual findings in relation to that allegation, nor will I consider it in deciding whether Mr Robinson’s dismissal was harsh, unjust and/or unreasonable. Sydney Trains relies on the remaining six allegations (Allegations 1, 2, 3, 5, 6 and 7), which it contends are “valid reasons” for Mr Robinson’s dismissal.

Sydney Trains contends that Mr Robinson’s misconduct relating to those six allegations constituted multiple breaches of the Transport for NSW Code of Conduct[12] (Code of Conduct), in particular:

(a)Section 3 (Staff responsibilities) which provides relevantly that Mr Robinson 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 reasonable lawful requests directions and instructions given in the course of your duties by any person with authority to do so; and
•not discriminate, harass, bully or engage in inappropriate workplace conduct.

(b)Section 9 (Workplace health and safety) which provides that Mr Robinson is required to:
•take reasonable care of your own health and safety;
•take reasonable care that your acts or omissions do not adversely affect the health and safety of other persons.

(c)Section 12 (Bullying, harassment, discrimination and inappropriate workplace) conduct which provides:
“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.”

Sydney Trains’ workplace procedure “Dignity and Respect in the Workplace” (Dignity Procedure) also provides that all employees are responsible for:
“Complying with the Code of Conduct and this Procedure by not engaging in harassment or bullying.
Treating colleagues and customers with dignity and respect at work and during work-related activities.
Thinking carefully about their own behaviour and how it may impact on others.
Bringing instances of harassment or bullying to the attention of their supervisor/manager.”

I am satisfied on the evidence that Mr Robinson was trained in the relevant policies and procedures set out above.[13]

Mr Gavin Cahill

Allegations 1 to 5 relate to matters raised by Mr Gavin Cahill, a Cleaner in Charge at the Broadmeadow Maintenance Centre. Mr Cahill gave evidence that as the Cleaner in Charge he was, at the relevant times, responsible for work allocation for all cleaning staff (including Mr Robinson when he was working on a shift with Mr Cahill), quality control, site and equipment management and oversaw train movements and compiled various reports.[14] Mr Robinson contends that he only reported to the Area Manager and not to Mr Cahill.[15] Mr Robinson denies that Mr Cahill was his “supervisor”, and instead says that Mr Cahill is a team leader who does all the paperwork, the end of shift report and is the person to whom he reports issues so that Mr Cahill can then pass those matters onto management.[16] Mr Robinson says that Mr Cahill’s job is not to give directions to him.[17] Mr Robinson also gave evidence that he needs to see a “staff and duty sheet” before he changes the way he works and he “just don't take it on someone's word that that's the way we're meant to work”.[18] Mr Robinson gave further evidence that he would not accept directions from Mr Cahill if Mr Cahill told him to do something differently and Mr Robinson thought it was the wrong way of working; rather Mr Robinson would “ask him [Mr Cahill] how he wants it done, and then I'll put my view across … Then I will just go and do it my way, and then if the – the job gets done. The job still gets done even if it's not the way he wanted it”.[19]

I accept Mr Cahill’s evidence that in his role as Cleaner in Charge he was responsible for allocating and supervising the work completed by the Cleaning Attendants on his shift (including Mr Robinson when he was on shift with Mr Cahill). The title of the role supports Mr Cahill’s contention that he had such responsibilities. Further, Mr Sanders gave evidence to a similar effect.[20] Accordingly, I find that Mr Robinson was required to comply with the lawful and reasonable directions of Mr Cahill when he was working on a shift with Mr Cahill.

Allegation 1

Mr Cahill gave evidence that on 6 February 2016 he was working at the Broadmeadow Maintenance Centre with Mr Robinson and Mr Phil Evans, Cleaning Attendant of Sydney Trains. Mr Cahill contends that he had the following verbal exchanges with Mr Robinson during the shift:

(a)at approximately 10:30pm, while Mr Cahill, Mr Robinson and Mr Evans were exiting the crib room and walking towards an eight car train that was approximately 10 metres from the crib room Mr Cahill said to Mr Robinson and Mr Evans, “Phil, can you look after cars 6, 7 & 8 and Troy can you look after cars 1, 2 & 3. Full vacuum and you are responsible for your own bathrooms”. Mr Cahill says that Mr Robinson responded by saying, “Why are you always fucking changing things. Phil and I should just do a walk-thru and you can do your own fucking bathrooms”. Mr Cahill responded to Mr Robinson by saying, “Troy, this set is our responsibility”;
(b)shortly after, while Mr Cahill was walking to the store room with Mr Evans to collect vacuum cleaners and equipment, Mr Robinson shouted words to the effect, “Why are you such a fucking cunt, why are you always changing things”. Mr Robinson then proceeded to car 1 with only tongs and a large garbage can but without any equipment from the store room including a mop or a vacuum cleaner which were required to complete his allocated tasks;[21]

(c)a short time later, while Mr Cahill was standing on ground level decanting car 2, Mr Robinson opened the carriage door of the train and leaned out and said to Mr Cahill, “Why are you fucking changing things? Phil and I just walk this set end-to-end. Why should it be vacuumed?” Mr Cahill walked away from Mr Robinson and continued decanting the train cars;

(d)a few minutes later, while Mr Cahill was standing on ground level decanting car 3, Mr Robinson opened the carriage door of the train approximately 3 meters away, leaned out and shouted, “You are a fucking cunt, you fucking mongrel, you are a grub, you are always trying to create work”. The verbal abuse continued for approximately three minutes during which time Mr Cahill asked Mr Robinson to stop and continue with his work or go home;

(e)while Mr Cahill was decanting car 6, Mr Robinson approached him on ground level and started shouting at him and calling him a “fucking queer cunt” on several occasions. Mr Cahill responded by saying to him, “Mate enough, stop, stop. Go and do your work”. At the time Mr Cahill says he feared for his safety and used the decant hose frame to keep distance between Mr Robinson and himself. The verbal abuse by Mr Robinson continued for about five minutes during which time Mr Robinson said, “I am this fucking close” while extending his right hand and using his thumb and right forefinger to indicate a small gap. Mr Cahill did not respond to this statement as he believed it would escalate the situation. Mr Robinson then walked a short distance away from Mr Cahill before turning around and shouting at him once again, “I am this fucking close”.

In cross-examination, Mr Cahill gave evidence that on the evening shift on 6 February 2016 there were three staff rostered on whereas ordinarily there would only be two staff rostered on. Because there was an eight-car train and three staff he decided to allocate Mr Robinson three cars, Mr Evans three cars and himself the two centre cars as well as decant duties so as to have an even work allocation.[22]

Mr Robinson gave evidence that he said to Mr Cahill, “Why are you changing our way of work we have worked this way for years” and asked Mr Cahill, “Is there a staff and duty sheet that outlines our way of working?” Mr Robinson says that he did lean out of the train car but did so to ask Mr Cahill, “Have you cleaned the bathroom or am I doing them?” Mr Robinson otherwise denies the exchanges as alleged by Mr Cahill and denies swearing at Mr Cahill or calling him a “fucking cunt”, a “queer cunt” or saying, “I’m this fucking close”.[23] In cross-examination, Mr Robinson conceded that he said to Mr Cahill, “Why do you always fucking change things, mate?”[24] However, Mr Robinson contends that his swearing was not directed at Mr Cahill but rather was said generally as part of his speech.[25]

Mr Evans was not called by either party to give evidence in these proceedings and did not provide a signed statement as part of the investigation into the Allegations. A file note taken during the investigation of a conversation with Mr Evans suggests that he had no recollection of the events the subject of Allegation 1, but he did “remark that Troy [Robinson] does get agitated when Mr Cahill changes things”.[26]

It is not in dispute between the parties and I am satisfied on the evidence that following Mr Cahill giving Mr Robinson and Mr Evans directions on how to work during the shift on 6 February 2016, Mr Robinson said to Mr Cahill, “Why do you always fucking change things, mate?” Mr Robinson’s conduct in this regard amounts to a failure to treat Mr Cahill fairly and with respect in breach of the Code of Conduct.

As to the balance of Allegation 1, I prefer Mr Cahill’s evidence over Mr Robinson’s evidence both in relation to the exchanges that occurred on 6 February 2016 and generally where there is conflict between their evidence, for the following reasons:

(a)I found Mr Cahill to be a witness of credit. Although Mr Cahill was a reluctant witness in these proceedings,[27] he gave clear and consistent evidence and answered questions in a direct and responsive manner. He has clearly been shaken by his experiences in working with and receiving verbal abuse from Mr Robinson. Mr Cahill had a significant period off work following the incidents with Mr Robinson in February 2016.[28] Mr Cahill accepts that he was aware of a complaint by Mr Robinson against him at the time he made his complaint about Mr Robinson in February 2016,[29] but I accept Mr Cahill’s evidence that his complaint was not made in retaliation or response to Mr Robinson’s complaint[30] and he was not even aware of the subject matter of Mr Robinson’s complaint about him at the time he made his complaint about Mr Robinson;[31] and
(b)on the other hand, I did not find Mr Robinson to be an impressive witness. His evidence was marked by inconsistencies and changes in position. For example, Mr Robinson changed his position in a significant way in response to Allegation 2. I set out in paragraphs [30] to [32] below my reasons for not accepting Mr Robinson’s explanation as to why he changed his position in relation to that allegation. Further, Mr Robinson’s evidence in relation to Allegation 5 was inconsistent and unpersuasive for the reasons set out in paragraphs [42] and [43] below. Mr Robinson was unwilling to provide direct answers to many of the questions put to him in cross examination and was instead intent on advocating what he perceives to be the injustice of his dismissal and the dishonesty and unfairness on the part of many employees and contractors at Sydney Trains.[32]

Accordingly, I find on the balance of probabilities that Mr Robinson engaged in the conduct the subject of Allegation 1 and by doing so he breached his obligations under the Code of Conduct and Dignity Procedure to:

·treat colleagues fairly, consistently and with dignity and respect;
·behave in a professional and reasonable manner;
·comply with reasonable lawful requests directions and instructions given in the course of his duties by any person with authority to do so;
·not harass, bully or engage in inappropriate workplace conduct; and
·take reasonable care that his acts do not adversely affect the health and safety of other persons.

Allegation 2

In late January 2016, Mr Glen Sanders took over the role of Area Manager – North from Mr Kevin Taylor for a period of two weeks. As the Acting Area Manager – North, Mr Sanders was responsible for approximately 20 Sydney Trains’ employees over three sites: Broadmeadow, Hamilton and Gosford. He was also responsible for allocating overtime shifts when required.

On about 11 February 2016, Mr Sanders was required to fill a position for a night shift at the Broadmeadow Maintenance Centre to cover the absence of Mr Evans. Mr Sanders called Mr Cahill to see if he could come in to work the overtime, and Mr Cahill agreed to do so. At the time there was a general practice at Sydney Trains that Cleaning Attendants would be allocated overtime in priority to Cleaners in Charge. Mr Sanders gave evidence, which I accept, that the reason he called Mr Cahill to work the overtime shift instead of a Cleaning Attendant such as Mr Robinson was because he had worked with Mr Cahill in the past and already had his mobile number in his phone. When Mr Sanders took over from Mr Taylor he had not been provided with Mr Taylor’s work phone which had the phone numbers of other Cleaning Attendants at the Broadmeadow Maintenance Centre.

Mr Cahill says that at approximately 10:00pm on 11 February 2016, he and Mr Sanders were having a conversation outside the crib room at the Broadmeadow Maintenance Centre when Mr Robinson exited the crib room and approached them. Mr Cahill and Mr Sanders each gave evidence that Mr Robinson said to Mr Cahill, “You fucking cunt, you're lining up all the fucking overtime for yourself”.[33] Mr Sanders gave evidence that he perceived Mr Robinson’s voice as aggressive due to his elevated tone and the volume of his voice when using the term “fucking cunt” towards Mr Cahill.[34] Mr Robinson denies calling Mr Cahill a “fucking cunt”, however admits that in connection with this issue he said to Mr Cahill on 9 February 2016[35] (not 11 February 2016, as alleged by Mr Cahill), “You're up to your old fucking cunt acts again. What you done you grub you are fucking around and pinching our overtime again”.[36] Mr Sanders responded to Mr Robinson by saying, “Look mate, it's my fault. I'll cop it on the chin, I will make it up to you. There is no reason to take it out on him”. Mr Robinson then responded by saying, “It's me that should have been fucking called in for overtime”.[37] Mr Robinson then walked away. In cross-examination, Mr Robinson gave evidence that he believes his actions were justified because Mr Cahill had done the wrong thing by taking the overtime shift and he does not feel the need to apologise for his conduct.[38]

At all times prior to filing his witness statement in these proceedings Mr Robinson denied Allegation 2.[39] In his witness statement filed in these proceedings Mr Robinson changed his position in relation to Allegation 2 and gave the following explanation for his change of position:[40]

“Allegation 2 I must apologise for my previous answers on this allegation. There were a lot of things going on in my life at about this time I had not been given the allegations for over 3 months 1/3/16 till 30/5/16 I was struggling mentally and I had a major motor bike accident on the 26^th June 2016 and was under very strong pain killers for a long period and I thought that the allegation was to do with the problems that Gavin Cahill caused with our overtime and rosters early the prior year 2015. I have now gone through my phone records and now I remember the facts of the allegations.”

Mr Robinson also gave evidence that he was struggling mentally and his head “wasn’t clear”[41] on the day he attended the interview with the investigator. However, Mr Robinson accepts that he was given the opportunity at the commencement of the interview to have the interview moved to another day and he declined that opportunity.[42]

I do not accept Mr Robinson’s contention that he initially misunderstood the year (2015 v 2016) of the events the subject of Allegation 2. The allegation was put to Mr Robinson in writing on 30 May 2016 and it clearly identified the date and particulars of the allegation as 11 February 2016, not 2015.[43] The date and particulars of the allegation were also given to Mr Robinson again in his interview with the investigator on 26 July 2016.[44] Further, in his written response to the Allegations on 27 July 2016 Mr Robinson referred to the alleged incident on 11 February 2016 and asserted that “this incident did not happen. There was an overtime discussion between Mr Robinson and Mr Cahill in 2015…”[45] Mr Robinson provided another written response to Allegations 2, 5 and 7 on 10 November 2016. In that response, Mr Robinson repeated Allegation 2 (including the date of 11 February 2016) and stated:[46]

“Mr Robinson stands by his previous statement that he did not say this to Mr Cahill. He continues to deny that he ever swore at Gavin Cahill but does acknowledge that most of the employees use the word ‘fuck’ on a regular occurrence in regards to things and situations in the workplace.” [emphasis added]

Mr Robinson’s denial on 10 November 2016 that he ever swore at Mr Cahill is inconsistent with his admission in his witness statement and during the hearing that he said to Mr Cahill, “You're up to your old fucking cunt acts again. What you done you grub you are fucking around and pinching our overtime again”.[47]

In each of his responses to the Allegations prior to his dismissal, Mr Robinson denied Allegation 2 and recalled the 2015 incident involving the allocation of overtime and Mr Cahill. Given that Mr Robinson could recall those events from 2015, it is unlikely, in my view, that he would not recall an event which took place on about 9-11 February 2016, which was only about three weeks before Mr Robinson was stood down (on pay) in early March 2016, in relation to the same subject matter (allocation of overtime), particularly having regard to the strong view Mr Robinson obviously held about the matter when he found out on 9-11 February 2016 that Mr Cahill had been allocated overtime in preference to himself. Mr Robinson’s alleged confusion of dates (2015 v 2016) and change of story in relation to Allegation 2 does not have a ring of truth about it. By the time Mr Robinson came to prepare his witness statement in these proceedings he had the benefit of Sydney Trains’ investigation report, which was produced in answer to an order for production and which disclosed to Mr Robinson that Mr Cahill’s version of events in relation to Allegation 2 was supported by Mr Sanders’ version of events. In light of the consistency between those accounts, in my view it would have been apparent to Mr Robinson that his prospect of successfully defending Allegation 2 in these proceedings was low. I am satisfied, on the balance of probabilities, that that is the likely reason why Mr Robinson changed his position in relation to Allegation 2.

In light of the consistent evidence given by Mr Cahill and Mr Sanders in relation to this incident and the concessions made by Mr Robinson in his witness statement and at the hearing in relation to Allegation 2, I am satisfied on the balance of probabilities that on a day in the period from about 9 to 11 February 2016 Mr Robinson was verbally abusive towards Mr Cahill by aggressively saying to him, “You fucking cunt, you're lining up all the fucking overtime for yourself”. It matters not whether the particular date of the incident was 9 February 2016 (as alleged by Mr Robinson) or 11 February 2016 (as alleged by Mr Cahill). Mr Robinson’s conduct in relation to this Allegation 2 amounts to a breach of his obligation under the Code of Conduct and Dignity Procedure to treat Mr Cahill fairly and with dignity and respect.

Allegation 3

On the evening of 12 February 2016, the Hamilton Station was shut down for cleaning. On this evening Mr Cahill, Mr Robinson, Mr Law, Mr Evans, Mr Rod Ellem, Mr Eddy Chojenta and Mr James Whitson worked at the Broadmeadow Maintenance Centre. A number of these staff usually worked at the Hamilton Maintenance Centre, but they were rostered for duty at the Broadmeadow Maintenance Centre on 12 February 2016 due to the Hamilton Station being shut down.

Mr Cahill gave evidence that at the commencement of his shift at approximately 8:00pm on 12 February 2016 he held a staff briefing in the crib room. The primary reason Mr Cahill decided to hold a briefing on that shift was because there were a number of staff working who were not familiar with the Broadmeadow Maintenance Centre and there was a significant number of trains that night. During the briefing, Mr Cahill alleges that Mr Robinson shouted to Mr Cahill in front of the other staff, “Shut the fuck up, we know what we are fucking doing”. Mr Cahill did not respond to Mr Robinson and completed the staff briefing and then proceeded outside of the crib room to await the arrival of a train.[48]

Mr Robinson denies the allegation and contends there was no staff briefing held on 12 February 2016.[49] In cross-examination, Mr Robinson gave evidence that he has attended staff briefings in the past held by a Cleaner in Charge, however says that Mr Cahill has never held a staff briefing.[50]

Apart from Mr Cahill and Mr Robinson, the only other person present on 12 February 2016 who was called to give evidence in these proceedings was Mr Law. It is clear from Mr Law’s statement to the investigator and his oral evidence at the hearing that he does not have much recollection of the events of 12 February 2016.[51] Mr Law gave evidence that he does not recall a staff briefing being held by Mr Cahill on 12 February 2016 or Mr Robinson making any derogatory remarks against Mr Cahill during the shift.[52]

For the reasons set out in paragraph [23] above, I prefer Mr Cahill’s evidence over Mr Robinson’s evidence where there is conflict between them. On that basis, I find, on the balance of probabilities, that Mr Robinson did say to Mr Cahill on 12 February 2016, “Shut the fuck up, we know what we are fucking doing”. By doing so, Mr Robinson breached his obligation under the Code of Conduct and Dignity Procedure to treat Mr Cahill fairly and with dignity and respect.

Allegation 5

Allegation 5 originally had three parts (a, b and c); part c was the only part pressed in these proceedings. It relates to an alleged conversation between Mr Robinson and Mr Law that occurred outside of the crib room during the shift on 12 February 2016.

Mr Cahill gave evidence that at about mid shift on 12 February 2016, a group of staff were gathered in the six-foot area between cars four and five. Mr Cahill was standing about two to three meters away from the group when he says he heard Mr Robinson say to Mr Law, “Thank fuck you're here, now we have someone here that has a fucking clue, and knows what the fuck is going on”.[53]

Mr Law was not able to recall such a discussion with Mr Robinson on 12 February 2016.[54]

Mr Robinson gave the following responses to this allegation:

(a)In his interview with the external investigator on 26 July 2016, Mr Robinson said:

“[Q]…Mr Cahill was standing about two to three metres away from the group when you said to Mr David Law, “Thank fuck you’re here. Now we have someone here that has a fucking clue and knows what the fuck is going on.’ What can you tell me about that?
[A] There was no swearing in it, but yes, I said to Dave, ‘At least we’ve got somewhere [sic] here that knows what they’re doing’, cause none of us had a clue what was happening that night…
And, it was not directed at Gavin Cahill at all…
So, at what point in that – in that there did I mention Gavin’s name? At no stage did I mention Mr Cahill’s name in that conversation to David Law.
[Q] Okay. When you say no-one had a clue what was happening that night, why would that be?
[A] Because, it was a shutdown night and we had trains coming in at all different times…
So, at no point was Gavin’s name ever mentioned and I’m not denying that I didn’t have the conversation with David Law…
But, at no time was it directed at Gavin Cahill…
[Q] Yeah. And, what the conversation about, if you – can you remember it?
[A] Just about the trains coming in at all different times and that. Yeah. And, I just said, ‘Fucking thank fuck we’ve got someone here who’s got half an odd clue what’s going on’…
None of us had an idea, not – in saying that, in – in not having a clue, none of us had a clue, ‘cause we were running on different time and we don’t get – we weren’t getting emails from Hamilton about it…
Yeah. But, I never swore in the – the one we just…”
(b)In his first written response (dated 27 July 2016), Mr Robinson stated:

“Mr Robinson recalls a private discussion between himself and Dave Law and Mr Cahill’s name was never mentioned.”

(c)In his second written response (sent on 10 November 2016), Mr Robinson stated:

“Mr Robinson has consistently stated that he was having a private conversation with Mr Law out of the hearing of others (at least two to three meters away from other employees in a relatively noisy environment). Everyone was in some shock due to the major safety incident of an unauthorised train movement (no-one was warned the train was going to move) which put at least six (6) lives at risk. Mr Robinson correctly attributed this incident to Mr Cahill as he was the cleaner in charge that night and therefore carried the responsibility.
In his statement to the investigator Mr Robinson admitted saying words to the effect of ‘fucking thank fuck we’ve got someone here who’s got half an odd clue what’s going on’ but he did not link this to Mr Cahill’s name. Given the circumstances it was not an unreasonable comment although perhaps expressed somewhat robustly. It is custom and practice in this work environment to use the expletive ‘fuck’ on a regular basis and although clearly inappropriate language Mr Robinson stands by his previous statement that this was never directed at Mr Cahill nor was it intended for him…”

(d)In his witness statement filed in these proceedings, Mr Robinson stated:

“Allegation 5(c) I will leave as I have always said there was no mention of Gavin Cahill name at any time in my discussion with David Law and the conversation was a discussion of facts that had happened and it was none of Gavin’s business what I say to other people in conversation unless the other person I am talking to feels that I have told lies about the person and tells them, I was talking in a generalised way as we had had a major safety issue illegal train movement and a lack of leadership see attach No (6).”
[Attachment 6 to Mr Robinson’s first witness statement is a memorandum from him to Mr Sanders in relation to Mr Robinson’s contention that during the shift on 12 February 2016 Mr Cahill “put everybody’s lives at risk” by his conduct in directing a train to reverse when employees (including Mr Robinson) were in the vicinity and at risk]

(e)In his reply submissions dated 3 August 2017, Mr Robinson stated:

“Allegation No 5(c) there were three incidents Mr Cahill accused me of doing (a) (b) were found to have not happened not substantiated No (5c) I have said yes I did have a conversation with Mr Law and I was not talking to Mr Cahill or about Mr Cahill. What has to be explained was we were talking about train movements and on this night we had the trains that normally are worked on at Hamilton Mr Laws area of work being done at decant and he had a fair idea of the arrival times. I had spoken to Mr Cahill earlier but not at this time and told him he was not above safety because of an illegal train movement he had done earlier in the night putting many lives at risk and if I was referring to anything about Mr Cahill and I do not believe I did I would be referring to the incident which was an actual happening. I cannot see where that is being abusive or not treating Mr Cahill with respect.”

(f)During his cross examination, Mr Robinson’s evidence included the following:

·As to what Mr Robinson said to Mr Law:
o   “…you said to David Law, something along the lines of, ‘Thank fuck you’re here. Now, we have someone who has a fucking clue’. You said that?---No, I said, ‘Thank fuck you’re here, because at least we’ve got someone that knows what’s going on.’”[55]
o   “During the course of that interview you said to the investigator, you said to David Law, ‘Fucking, thank fuck we’ve got someone here who’s got half an odd clue what’s going on’?---Yes, like I said, I wasn’t sure of the – I’m not real – it was that long ago, mate, with the wording, and like I said, I was on medication that day and that. I was on the – a lot of pain killers.”[56]
o   “Can we rely on the things you’ve told the investigator as being true or not?---Yes.

So, if you said to the investigator, you said to David Law, ‘Fucking, thank fuck we’ve got someone here who’s got half an odd clue what’s going on’, we can take that as being something that was true. You did say that to David Law?---I said, ‘Thank fuck we’ve got someone here that know what’s going on’. Like I said, in that interview with the investigator I was heavily medicated which I stated at the very start of it due to I smashed my shoulder, major surgery. I had two surgeries on it since.”[57]

·As to how far Mr Robinson was from Mr Cahill when he made the comment to Mr Law:

o   “…me and Dave were having a private conversation, there was no one else there; there was no group of blokes, and Gavin was well up the thing a bit…”[58]
o   “About, what, 20 metres away?---I’d say 15.”[59]
o   “…You said this within hearing of Mr Cahill. You accept that, don’t you?---Well, it must have been…”[60]

o “Can I suggest to you you did it right in front of him?---No, that’s not true.”[61]

·As to the reason why Mr Robinson made the comment to Mr Law:
o “You were talking to David Law about a lack of leadership?‑‑‑No, of the train movements. ‘Thank fuck we've got someone who knows what's going on’ with the train movements. That's what I said. It was about the train movements on the night, because Dave's the CIC out at Hamilton.”[62]
o “You were talking in a generalised way and as you'd had a major safety issue and the lack of leadership; correct?‑‑‑I was talking to David Law about the train movement with his trains that were coming in because we didn't know what time his train come in, and they were coming in at different hours, because there was a shutdown that night, and that means that Hamilton was closed down. They weren't – that's why we had Hamilton staff over at Broadmeadow and the trains were coming in at all different times, and Dave had a rough idea when his trains were coming in.”[63]

o “You were complaining to David Law about a lack of leadership?‑‑‑No.

True or false?‑‑‑False”[64]

There are a number of inconsistencies between the various accounts given by Mr Robinson in relation to this Allegation, including:

(a)First, Mr Robinson initially denied swearing in his response to the external investigator but then changed his account and admitted to the external investigator that he did swear when making his comment to Mr Law;[65]
(b)Secondly, in his interview with the external investigator Mr Robinson admitted saying words to the effect of those alleged by Mr Cahill.[66] Mr Robinson also made the same admission in his second written response (sent on 10 November 2016).[67] There is no suggestion that Mr Robinson was “heavily medicated” when that response was sent many months after the interview on 26 July 2016. At the hearing Mr Robinson changed his account and asserted that he said to Mr Law, “Thank fuck we’ve got someone here that knows what’s going on”. In light of his earlier admissions and the inconsistencies referred to in subparagraph [43(d)] below concerning the reason Mr Robinson made his comment to Mr Law, I find on the balance of probabilities that Mr Robinson changed his account of what he said to Mr Law to try to support his contention that his comment did not refer or relate to Mr Cahill;
(c)Thirdly, when the allegation was first put to Mr Robinson in the interview with the external investigator he did not take any issue with the contention that he was two to three metres away from Mr Cahill when he made the comment.[68] Nor did he take issue with that contention in his first written response to the Allegation.[69] In his second written response (sent on 10 November 2016) Mr Robinson stated that he was “at least two to three meters away from other employees”. In cross examination Mr Robinson asserted, for the first time, that he was about 15 metres away from Mr Cahill when he made the comment to Mr Law, but he later conceded that he made the comment within the hearing of Mr Cahill. It has been the consistent position of Mr Cahill that he was about two to three metres away from Mr Robinson when he made the comment;[70] and
(d)Fourthly, during the hearing Mr Robinson repeatedly stated that his comment to Mr Law related to train movements and had nothing to do with Mr Cahill or his leadership.[71] He gave a similar explanation in his interview with the external investigator and in his reply submissions. However, he gave a different explanation in his second written response (sent on 10 November 2016) where he stated the comment was in the context of a major safety incident earlier on the shift for which he held Mr Cahill responsible.[72] Similarly, in his witness statement Mr Robinson stated that he “was talking in a generalised way as we had had a major safety issue illegal train movement and a lack of leadership”.[73] Mr Robinson conceded in his oral evidence that it was Mr Cahill who he believed showed a lack of leadership on the night of 12 February 2016.[74]

In light of these inconsistencies and my assessment of Mr Cahill as a truthful and reliable witness, I find on the balance of probabilities that Mr Robinson said to Mr Law within about two to three metres of Mr Cahill, “Thank fuck you're here, now we have someone here that has a fucking clue, and knows what the fuck is going on”. I am satisfied that Mr Robinson’s comment was, at least in part, in relation to a lack of leadership he believed had been shown by Mr Cahill and such a comment would have the effect of undermining Mr Cahill, who was the Cleaner in Charge on the shift. I find that Mr Robinson’s conduct in this regard contravened his obligations under the Code of Conduct and Dignity Procedure to treat Mr Cahill fairly and with dignity and respect.

Security Guards

Allegations 6 and 7 relate to Mr Robinson’s alleged interactions with two security guards who worked at the Broadmeadow Maintenance Centre. Mr Robinson accepts that he has previously had a number of issues with the security guards at the Broadmeadow Maintenance Centre. One issue related to the security guards taking breaks. Mr Robinson accepts that he has pointed out to the security guards when they are taking breaks in excess of their allocated 20 minute meal break.[75]

Allegation 6

Mr Waseem Ashrif was employed as a Security Guard of SNP Security between April 2014 and April 2016 and during his employment worked at the Broadmeadow Maintenance Centre from time to time. Mr Ashrif alleges that at approximately 11:45pm on 25 February 2016 he was sitting on the sofa in the crib room at the Broadmeadow Maintenance Centre having his meal break when Mr Robinson entered the crib room and said to Mr Ashrif, “Get the fuck out of my room, get your shit and get out of my room, your job is outside, eat outside don’t come into my room” and “Turn your fucking radio off it's annoying listening to that shit”. Mr Ashrif did not finish his meal; instead he stood up, threw his half consumed meal in the rubbish and went outside and contacted Mr Beelal Abdelaal, Duty Manager of SNP Security, to report what occurred. Mr Abdelaal sent an email to Mr Stef Zarikos, Account Manager of SNP Security, on 25 February 2016 reporting the incident.[76] Mr Zarikos sent an email to a number of Sydney Trains employees on 28 February 2016 setting out the details of this allegation.

Mr Robinson denies ever speaking to Mr Ashrif and says that he does not know who he is or what he looks like.[77] Mr Robinson alleges that Mr Ashrif made false allegations against him and relies on the fact that Mr Ashrif did not sign his statement to the external investigator regarding this allegation.[78]

Mr Ashrif was interviewed as part of the external investigation on 7 May 2016, however he declined to sign the statement provided to him by the external investigator[79] and was not called by Sydney Trains as a witness to give evidence at the hearing of this matter. Mr Zarikos provided a signed witness statement as part of the external investigation into Mr Robinson’s conduct, however was not called as a witness to give evidence at the hearing of this matter. It is not suggested that Mr Zarikos was an eye witness to any event the subject of any of the Allegations.

Sydney Trains submitted that the unsigned statement of Mr Ashrif and the signed statement of Mr Zarikos, both of which formed part of the external investigation report prepared for Sydney Trains, were admissible. I admitted those statements into evidence as part of the investigation report on the basis that the report and the attachments to it are business records within the meaning of s.69 of the Evidence Act 1995 (Cth).

There is a question as to the weight, if any, that should be given to the statements attached to the investigation report in circumstances where the contents of the statements are hearsay, the makers of those statements have not been called to give evidence in these proceedings and, in Mr Ashrif’s case, he was not willing to provide a signed statement to the external investigator. Sydney Trains relied on a number of authorities to support its contention that the Commission should give weight to the investigation report and its attachments, including the statements of Mr Ashrif and Mr Zarikos. Those authorities were Pochi v Minister for Immigration and Ethnic Affairs,[80] the Enterprise Flexibility Agreements Test Case[81] and Secretary, Department of Human Services v Sanding[82].

Relevant to this issue is the fact that the Commission is not bound by the rules of evidence and procedure in relation to a matter before it.[83] The Commission does, however, tend to follow the rules of evidence as a general guide to good procedure.[84]

In Pochi v Minister for Immigration and Ethnic Affairs, Justice Brennan, then President of the Administrative Appeals Tribunal of Australia, made the following observations (at 491-2):

“How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that: ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.’ Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence. The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’, as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: ‘Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'’. That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore said: ‘These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.’”

Secretary, Department of Human Services v Sanding concerned an application for judicial review of a decision of the Children’s Court, a tribunal that is not bound by the rules of evidence. In that case Bell J made the following observations (at [133]):

“The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more.”

In the Enterprise Flexibility Agreements Test Case, a Full Bench[85] of the Australian Industrial Relations Commission made the following observations in relation to the principles of natural justice in the context of non-disclosure of the names of union members:

“It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513; 29 IR 148).
The term natural justice in the context of administrative decision-making has been essentially equated to an obligation to act fairly or to accord procedural fairness (Kioa v West (1985) 159 CLR 550 at 585 per Mason J).
The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ said:
‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’

Further in Mobil Oil Australia Pty Ltd v Commission of Taxation (Cth) (1963) 113 CLR 475 at 504 Kitto J said:
‘What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.’

The task of determining whether there has been adequate compliance in a particular case may often present difficulty.
In these proceedings Mr I Douglas QC has argued that it is a denial of natural justice to have evidence adduced against a person without that person knowing what the evidence is and being given an opportunity to test the evidence. Two authorities are relied on in this regard: City of Brighton v Selpam [1987] VR 54 at 59; Hurt v Rossall (1982) 64 FLR 102 at 110. It is argued that the application of this proposition to the issue before the Commission requires that the names of those employees said to be union members must be disclosed when eligible union status is contested. Generally, parties must be provided with an adequate opportunity to challenge or contradict material advanced against them (Board of Education v Rice [1911] AC 179 at 182 per Lord Loreburn LC). However, it does not necessarily follow that the only method of challenge or contradiction which would be regarded as acceptable is the capacity to cross-examine the author of such material (T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228).”

The allegations made by Mr Ashrif against Mr Robinson are serious. They are denied by Mr Robinson, who says he does not even know who Mr Ashrif is or what he looks like. Further, there is no realistic method by which Mr Robinson could test the allegations made by Mr Ashrif against him without asking him questions. Mr Robinson has been denied that opportunity by reason of the fact that Mr Ashrif has not been called to give evidence in the proceedings, nor has Mr Zarikos. In those circumstances, I am satisfied that judicial fairness requires that I not give any weight to the statements of Mr Ashrif or Mr Zarikos.

Having regard to my decision not to give any weight to the statements of Mr Ashrif or Mr Zarikos and Mr Robinson’s denial of Allegation 6, on the evidence before me I find on the balance of probabilities that Mr Robinson did not engage in the conduct the subject of Allegation 6.

Allegation 7

Mr Touseef Ahmad was employed as a Security Guard of SNP Security between June 2015 and February 2016 and worked at the Broadmeadow Maintenance Centre from time to time during his employment.

Mr Ahmad alleges that shortly after he finished his shift at 6:00am on 28 February 2016 he was walking towards his vehicle that was parked outside the Broadmeadow Maintenance Centre on Coorumbung Road. Mr Ahmad was standing next to his vehicle when Mr Robinson drove his vehicle up to Mr Ahmad and stopped parallel with his vehicle, leaving little to almost no room for Mr Ahmad to open his door and enter his vehicle. Mr Robinson then allegedly said to Mr Ahmad, “Hey, do you have a problem with me? If you do, now is the time, come around the comer and let's punch on”. Mr Ahmad allegedly responded by saying, “I don’t have a problem with you, but if you have problems, I can call the police and you can discuss it with them”. It is contended by Mr Ahmad that Mr Robinson then said to him, “You Muslim cunt, go back to your own country” and then spat in Mr Ahmad's face and drove away.

Mr Robinson gave evidence that as he was driving his vehicle out of the carpark Mr Ahmad walked straight in front of his vehicle, making him brake and wait for Mr Ahmad to cross the road. Mr Robinson admits to then pulling up alongside Mr Ahmad’s vehicle, however says that Mr Ahmad had already opened his car door at this point. Mr Robinson denies the exchange as alleged by Mr Ahmad and contends that he asked Mr Ahmad, “What’s your problem mate?” in relation to him walking in front of Mr Robinson’s vehicle. Mr Robinson contends that Mr Ahmad said to him, “I’ll ring the cops on you”. Mr Robinson claims he responded by saying, “Good on you mate”, and then drove off. Mr Robinson says that the conversation lasted less than 30 seconds.[86]

Mr Lansana Dolley was employed as a Security Guard of Apex Protection Group between November 2015 and May 2016. Apex Protection Group contracted out Mr Dolley’s services to SNP Security and he worked at the Broadmeadow Maintenance Centre from time to time during his employment. Mr Dolley gave evidence that shortly before 6:00am on 28 February 2016 he arrived at the Broadmeadow Maintenance Centre to relieve Mr Ahmad from duty. After Mr Dolley and Mr Ahmad completed the changeover procedures, he walked Mr Ahmad to the exit gates. While Mr Ahmad was walking to his vehicle parked on Coorumbung Road, Mr Robinson was walking towards his vehicle that was parked inside the Broadmeadow Maintenance Centre and said to Mr Dolley, “Can you please leave the gate open, I’m leaving now”. Mr Robinson then drove through the exit gates and drove up next to Mr Ahmad’s vehicle facing the opposite direction. Mr Dolley says that Mr Robinson’s vehicle was so close to Mr Ahmad’s vehicle that it would have been very difficult for Mr Ahmad to open his vehicle’s door and enter his vehicle. Mr Dolley observed Mr Ahmad leaning back onto his vehicle during the conversation. About two to three minutes later, Mr Dolley says that Mr Robinson drove off away from Mr Ahmad’s vehicle. Mr Dolley then walked over to Mr Ahmad and observed that he was visibly upset and his eyes were red, as though he had been crying. Mr Dolley says that Mr Ahmad took a water bottle from his vehicle and washed his face. Mr Dolley asked Mr Ahmad, “What happened?” and Mr Ahmad responded by saying, “Troy was threatening me, asking me to go to the back and fight and spit on my face”. Mr Dolley says he observed Mr Ahmad then make a phone call and he appeared to be very upset. Mr Dolley then returned inside the Broadmeadow Maintenance Centre.[87]

Sydney Trains sought, and I made, an order that Mr Ahmad attend the hearing to give evidence. However, Mr Ahmad informed Sydney Trains that he was unable to attend the hearing because he was overseas at the time of the hearing and was not due to return until about November 2017. I gave Sydney Trains an opportunity to seek an adjournment so that Mr Ahmad could give evidence at a later time, after his return to Australia. Mr Fagir, counsel for Sydney Trains, after taking instructions from his client in relation to the issue, elected not to make such an application or any other application, and instead sought to rely on a signed witness statement (dated 5 May 2016) Mr Ahmad provided to the external investigator. Mr Ahmad’s signed statement was admitted into evidence as part of the investigation report as a business record within the meaning of s.69 of the Evidence Act.

I am prepared to give some weight to Mr Ahmad’s statement for the following reasons:

·Mr Ahmad signed the statement prepared for him by the external investigator; and
·Although Mr Dolley could not hear what was said by Mr Robinson to Mr Ahmad, nor could he see whether Mr Robinson spat on him, Mr Dolley did observe Mr Ahmad leaning back onto his vehicle during the conversation and Mr Dolley spoke to and observed Mr Ahmad immediately after his interaction with Mr Robinson. It was therefore possible for Mr Robinson to test part of what Mr Ahmad said in his statement by questioning Mr Dolley, who I found to be a credible and straightforward witness. He had a good recollection of the events and was not shaken in cross examination.

However, the weight I give to Mr Ahmad’s statement is limited to a significant extent because he was not made available by Sydney Trains as a witness to be questioned by Mr Robinson at the hearing. The allegations made by Mr Ahmad are of the most serious kind: verbal abuse, racial abuse, a threat of violence, and assault (spitting). There were no witnesses who heard the conversation between Mr Robinson and Mr Ahmad or who were in a position to see whether Mr Robinson spat on Mr Ahmad. An allegation of spitting is one which could mean a range of things. At one end of the spectrum Mr Ahmad may, if questioned, have accepted that spittle came out of Mr Robinson’s mouth during their discussion and some of it landed on him. Alternatively, Mr Ahmad may, if questioned, have been adamant that Mr Robinson deliberately spat a significant volume of liquid onto his face. Absent oral evidence from Mr Ahmad, it is not possible to make a finding in relation to such matters.

In view of the very serious allegations made by Mr Ahmad against Mr Robinson, in relation to which the Briginshaw standard applies, I would not lightly make a finding that Mr Robinson engaged in the misconduct alleged against him in Allegation 7. Having regard to the absence of oral evidence from Mr Ahmad, together with the limited nature of the evidence which Mr Dolley was able to give and Mr Robinson’s consistent denial of the allegations, on the evidence before me I find on the balance of probabilities that Mr Robinson did not engage in the conduct the subject of Allegation 7.

Conclusion on valid reason

I have found that Allegations 1, 2, 3, and 5 have been substantiated on the balance of probabilities. Mr Robinson’s substantial breaches of the Code of Conduct and Dignity Procedure, as set out in these allegations, gave Sydney Trains a sound, defensible and well-founded reason to dismiss Mr Robinson. I am therefore satisfied that Sydney Trains had a valid reason to dismiss Mr Robinson related to his conduct.

Was Mr Robinson notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[88], and in explicit[89] and plain and clear terms.[90] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[91]

On 1 March 2016, Mr Robinson was handed a letter by Mr Taylor and told that he was being stood down with pay. Mr Robinson says that Mr Taylor did not give him any explanation as to why he was being stood down other than “I think it is to do with security guards”.[92]

On 24 March 2016, Sydney Trains sent a letter to Mr Robinson informing him that he was being investigated by the Workplace Conduct and Investigations Unit for possible breaches of the Code of Conduct and that he would be provided with details of the allegations and given the opportunity to respond in due course.[93]

On 27 May 2016, the Rail, Tram and Bus Union (RTBU) sent a letter to Sydney Trains on behalf of Mr Robinson raising a dispute concerning Mr Robinson’s suspension pending a disciplinary investigation pursuant to clause 8 of the Sydney Trains Enterprise Agreement 2014.[94]

On 30 May 2016, Sydney Trains sent a letter to Mr Robinson that set out the particulars of the Allegations and informing him that an external company, Nemesis Consultancy Group, had been engaged to undertake the disciplinary investigation. Mr Robinson was requested to provide a written response to the allegations within 14 calendar days.[95]

On 26 July 2016, Mr Robinson attended an interview with Mr Michael Criston, Senior Investigator of Nemesis Consultancy Group, to provide his response to the Allegations. The interview was electronically recorded.[96]

On 27 July 2016, the RTBU sent a letter to Sydney Trains on behalf of Mr Robinson which set out Mr Robinson’s responses to the Allegations.[97]

On 24 August 2016, the investigation into Mr Robinson’s alleged misconduct relating to the Allegations was finalised by Mr Peter Moroney, of Nemesis Consultancy Group.

On 7 October 2016, Sydney Trains sent a letter to Mr Robinson informing him that the investigation had been finalised and on the basis that Allegations 2, 5 and 7 had been substantiated and the preliminary view of the appropriate disciplinary outcome was dismissal. The letter further advised that Mr Robinson had the opportunity to make a submission within 14 days in relation to the proposed disciplinary outcome.[98]

On 10 November 2016, the RTBU sent a letter to Sydney Trains on behalf of Mr Robinson setting out Mr Robinson’s response to the proposed disciplinary outcome of dismissal, including a further response to some of the Allegations.[99]

On 7 December 2016, Sydney Trains sent a letter to Mr Robinson advising that following review of his responses the final view of the appropriate disciplinary outcome was dismissal.[100]

On 1 February 2017, Mr Robinson made a disciplinary penalty review request for the Transport for NSW Disciplinary Panel (Disciplinary Panel) to review the Sydney Trains disciplinary decision to terminate his employment pursuant to the Sydney Trains Interim Discipline Penalty Review Process Guidelines.

On 24 February 2017, the Disciplinary Panel finalised a review into Mr Robinson’s dismissal and decided to affirm the original Sydney Trains’ disciplinary outcome of dismissal. On 28 February 2017, Sydney Trains sent a letter to Mr Robinson which enclosed a copy of the Disciplinary Panel’s decision. The termination of Mr Robinson’s employment took effect on his receipt of the letter from Sydney Trains, which was 1 March 2017.

Mr Robinson alleges that Sydney Trains’ failure to provide him details in writing of the allegations made against him until 13 weeks after he was stood down was a breach of clause 23(1) of the Transport Administration (Staff) Regulation 2012 (NSW) (Regulations) and put him under immense mental pressure.[101] Clause 23(1) of the Regulations provides that “A transport corporation officer who is subject to disciplinary proceedings is entitled to be notified in writing by the transport corporation of the particulars of the alleged behaviour giving rise to the proceedings”. I am satisfied that Sydney Trains complied with this requirement on basis of the facts set out in paragraph [71] above. The time taken to provide the particulars of the Allegations to Mr Robinson was on account of the need to interview a number of employees and contractors to obtain details of the particular Allegations.

On the basis of the facts set out in paragraphs [68] to [79] above, I am satisfied that Mr Robinson was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal.

Was there an unreasonable refusal to allow Mr Robinson to have a support person present (s.387(d))?

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[102]

Mr Robinson was given the opportunity to have a support person present during the external investigation including at the meeting held on 26 July 2016, at which time he had Mr Gregory Cameron with him at the meeting as his support person. Mr Robinson was, at that time, a member of the RTBU. The RTBU represented Mr Robinson throughout the investigation into his conduct and initially in these proceedings. The RTBU ceased representing Mr Robinson in these proceedings on 11 May 2017.

I am satisfied that there was no unreasonable refusal by Sydney Trains to allow Mr Robinson to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

In this case, the reasons for dismissal related to Mr Robinson’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of Sydney Trains on procedures followed in effecting the dismissal (s.387(f))

Sydney Trains operates a large business enterprise and employs approximately 10,000 people at the time of Mr Robinson’s dismissal.

I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Robinson’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

Sydney Trains employed a number of dedicated human resource managers at the time of Mr Robinson’s dismissal, so this consideration is not relevant.

Other relevant matters (s.387(h))

Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

In this case there are a number of “other matters” which are relevant to my assessment of whether Mr Robinson’s dismissal was harsh, unjust or unreasonable. I will deal with each of those matters in turn below.

Length and quality of Mr Robinson’s employment record with Sydney Trains.

The first relevant matter is the length and quality of Mr Robinson’s employment record with Sydney Trains. Mr Robinson commenced working for Sydney Trains on 15 February 2008.[103]

In 2012, Mr Robinson received anger management counselling through Sydney Trains in relation to his work performance.[104]

In 2013, Mr Robinson was requested by Sydney Trains to undertake a drug test while he was at work. The test returned a positive reading for methamphetamine. Mr Robinson denied having taken the drugs voluntarily and told Sydney Trains that he had his drink spiked at an 18th birthday party he attended at a Rebels clubhouse. Although Sydney Trains has a policy of zero tolerance to drugs and alcohol, no disciplinary action was taken against Mr Robinson subject to him undertaking drug counselling, which he did.[105] While Mr Robinson was undertaking the drug counselling he was required to work from Central Station.

On 22 May 2014, Mr Robinson was dismissed by Sydney Trains following a lengthy investigation into an allegation that Mr Robinson had stolen a mobile phone from the lost property office at Central Station on 18 April 2013. Mr Robinson filed an unfair dismissal application in the Commission in relation to his 2014 dismissal. Following Sydney Trains receiving a statutory declaration from the individual who handed in the phone at the lost property office which identified that Mr Robinson was not the person who had collected the phone, Sydney Trains reinstated Mr Robinson. Mr Robinson recommenced employment with Sydney Trains in early December 2014. Mr Robinson gave evidence that he has been under a lot of mental anguish since the investigation into the alleged theft that occurred on 18 April 2013.[106]

On 4 and 11 November 2015, there were two incidents in which Mr Robinson was decanting a train and had taken down his red flag prior to detaching the hose from the train and the train took off with the hose still attached. Mr Robinson accepted that it was his fault, however said that his actions were due to fatigue as he had been working 11.5 hour days and he was the only Cleaning Attendant working on those days. Mr Robinson’s actions were a breach of Sydney Trains’ safety procedure and he was stood down pending a medical assessment. Mr Robinson gave evidence that he considered Sydney Trains’ treatment of him as a “little bit harsh” because he was stood down for approximately three months pending his medical assessment and he was not the only one who was guilty of not following the red flag procedure.[107]

Overall, Mr Robinson was employed by Sydney Trains for a reasonably long period of time (about 9 years) and his employment record was moderate. These matters weigh, to some extent, in favour of Mr Robinson’s argument that his dismissal was harsh.

Remorse

Mr Robinson has not shown any contrition for his actions. Mr Robinson’s evidence demonstrates an unwillingness on his part to accept that he has done anything wrong and that he believes he was justified in his actions. By way of example, Mr Robinson considered his response to Mr Cahill working an overtime shift at the request of Mr Sanders, which involved Mr Robinson, on his own case, saying to Mr Cahill in front of Mr Sanders, “You're up to your old fucking cunt acts again. What you done you grub you are fucking around and pinching our overtime again”, was a justified response on the basis that Mr Cahill had allegedly manipulated overtime rosters in the past and the overtime shift should have been offered to Mr Robinson.

Mr Robinson’s failure to recognise that he contravened the Code of Conduct is of concern, and demonstrates that he does not appreciate the standard of behaviour and conduct that was required of him by Sydney Trains in relation to his treatment of his work colleagues.

Mr Robinson’s lack of remorse and failure to recognise his wrongdoing weigh against a finding of harshness.

Personal and economic consequences of the dismissal for Mr Robinson

I accept that the consequences of Mr Robinson’s dismissal have been very difficult for his personal and economic situation, including Mr Robinson’s family. Mr Robinson has applied for a number of jobs, however he has only obtained a small amount of casual work since his dismissal with Sydney Trains. As a result he has earned considerably less than he would have earned had he remained employed by Sydney Trains, and that position is likely to continue into the future. However, the harsh consequences of Mr Robinson’s dismissal must be weighed against the severity of his conduct. On the basis of the findings I have made in relation to the Allegations, I am satisfied that Mr Robinson’s conduct is both serious and had serious consequences for Mr Cahill. A person in Mr Cahill’s position should not have to put up with conduct at work of the type engaged in by Mr Robinson.

Complaints raised by Mr Robinson

Mr Robinson gave evidence that he has made a number of reports to Sydney Trains regarding the conduct of the security guards and Mr Cahill and that nothing was done to fix the issues raised by Mr Robinson.[108] In particular, Mr Robinson contends that he has made reports to Sydney Trains in relation to:

(a)Mr Cahill telling Mr Robinson he is a “whinging cunt”, a “fucking whinger” including in response to Mr Robinson raising work health and safety issues such as Mr Cahill smoking in the doorway of the crib room and spilling coffee;[109]

(b)Mr Cahill’s body odour;[110] and

(c)Mr Cahill authorising the train to reverse while employees, including Mr Robinson, were exiting the train.[111]

Mr Robinson contends that Sydney Trains has sought to punish him for raising those complaints.

I am not satisfied that any part of Sydney Trains’ decision to dismiss Mr Robinson was because he had made various complaints. I am satisfied that the decision by Sydney Trains to dismiss Mr Robinson arose because Mr Cahill made a complaint in late February 2016 about Mr Robinson’s conduct, those allegations were investigated by an external investigator, findings were made by the investigator, some of which were adverse to Mr Robinson and were serious in nature.

Further, although I accept Mr Robinson’s evidence that swearing is commonplace amongst cleaning staff working on the trains, there is a significant difference between swearing generally and swearing in a serious way at a person. On the basis of the findings I have made, Mr Robinson swore in a serious and repeated way at Mr Cahill, Cleaner in Charge on the shift. That conduct was not acceptable. On the evidence before me I am not satisfied that other employees engaged in similar conduct. The allegations referred to in paragraph [103(a)] were not put to Mr Cahill during the hearing. It is also noteworthy that Mr Cahill did not swear at Mr Robinson in response to the abuse he received from Mr Robinson.[112]

I also reject Mr Robinson’s contention that he has been treated differently to other employees and contractors who he alleges were given the opportunity to apologise when they made abusive and threatening statements.[113] On the evidence before me there are no other employees or contractors of Sydney Trains who have engaged in conduct equivalent to that of Mr Robinson (according to my findings) and been treated differently to Mr Robinson.

Conclusion

After considering each of the matters specified in s.387 of the Act, I am satisfied that Sydney Trains’ dismissal of Mr Robinson was not harsh, unjust or unreasonable. Mr Robinson’s unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

Mr T Robinson on his own behalf.
Mr O Fagir of counsel on behalf of Sydney Trains.

Hearing details:

2017.
Newcastle:
August 10-11.

[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

[2] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

[3] Ibid

[4] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

[5] Ibid

[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[7] Ibid

[8] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363

[9] Ibid per Dixon J at p 362

[10] Ibid per Rich J at p 350

[11] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[12] Sydney Trains letter 7 December 2016

[13] Exhibit R6 at p.215

[14] Exhibit R2 at Annexure GLC-1 at [7]

[15] Exhibit R6 at p.157

[16] Transcript at PN457-463

[17] Transcript at PN481

[18] Transcript at PN440

[19] Transcript at PN449-450

[20] Exhibit R6 at p128 [3]

[21] Exhibit R2 at Annexure GLC-1 at [8]-[11]

[22] Transcript at PN1597-8

[23] Exhibit A1 at Attachment 4b; Exhibit R6 at p.149-150, 159-160; Transcript at PN407-410

[24] Transcript at PN400-1

[25] Transcript at PN400

[26] Exhibit R6 at p223

[27] Mr Cahill gave evidence in the proceedings pursuant to an order made by the Commission on 27 July 2017

[28] Transcript at PN1715-1720

[29] Transcript at PN1713

[30] Transcript at PN1714

[31] Transcript at PN1698 & PN1714

[32] See, for example, transcript at PN807-839

[33] Exhibit R2 at annexure GLC-1 [22]; Exhibit R1 at [5] and annexure GSS-1 [12]

[34] Exhibit R1 at [5]

[35] Transcript PN1106

[36] Exhibit A1 at [32]; Transcript at PN841-851 & PN1127

[37] Exhibit A1 at [33]

[38] Transcript at PN839-861

[39] Exhibit R6 at pp160-1

[40] Exhibit A1 at [25]

[41] Exhibit A1 at [25]; Transcript at PN501

[42] Transcript at PN497-498

[43] Exhibit R6 at p139

[44] Exhibit R6 at p160

[45] Exhibit A1 at attachment 4B

[46] Exhibit A1 at attachment 4C

[47] Exhibit A1 at [32]; Transcript at PN841-851 & PN1127

[48] Exhibit R2 at [24]-[26]

[49] Exhibit R6 at p.161-3

[50] Transcript at PN422-438

[51] Exhibit R5; Transcript at PN2084-2110

[52] Exhibit R5 at [5]-[8]

[53] Exhibit R2 at Annexure GLC-1 at [42]

[54] Transcript at PN2107-9

[55] Transcript at PN476

[56] Transcript at PN500

[57] Transcript at PN504-5

[58] Transcript at PN469

[59] Transcript at PN471

[60] Transcript at PN478

[61] Transcript at PN479

[62] Transcript at PN513

[63] Transcript at PN514

[64] Transcript PN515-6

[65] Paragraph [41(a)] above

[66] Ibid

[67] Paragraph [42(c)] above

[68] Paragraph [42(a)] above

[69] Paragraph [42(b)] above

[70] Exhibit R2 at annexure GLC-1 [42]

[71] See paragraph [42(f)] above

[72] See paragraph [42(c)] above

[73] See paragraph [42(d)] above

[74] Transcript at PN583

[75] Transcript at PN656

[76] Exhibit R6 at p.82

[77] Exhibit R6 at p.152, 170-171; Transcript at PN682

[78] Transcript at PN686-689

[79] Exhibit R6 at p7 [14]

[80] (1979) 36 CLR 482

[81] (1995) 59 IR 430

[82] [2011] VSC 42

[83] Section 591 of the Act

[84] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]

[85] Ross VP, Maher DP and Cox C

[86] Exhibit R6 at p.152-3 and 171-5; Transcript at PN699

[87] Exhibit R4; Transcript at PN1888 and following

[88] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[89] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

[90] Previsic v Australian Quarantine Inspection Services Print Q3730

[91] RMIT v Asher (2010) 194 IR 1 at 14-15

[92] Exhibit A1 at [14]-[15]

[93] Exhibit A1 at [20] and attachment 3b

[94] Exhibit A1 at [20] and attachment 3c

[95] Exhibit A1 at [21] and attachment 4a

[96] Exhibit R6 at p.155-175

[97] Exhibit A1 at [23] and attachment 4b; Exhibit R6 at p.149-153

[98] Exhibit R6 at p.230-231

[99] Exhibit R6 at p.233-238

[100] Exhibit R6 at p.239-240

[101] Exhibit A1 at [17]-[22]

[102] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]

[103] Exhibit A1 at [3]

[104] Transcript at PN277-278

[105] Transcript at PN251-276

[106] Exhibit A1 at [4]-[13]

[107] Transcript at PN315-385

[108] Exhibit A1 at [16], [26]

[109] Exhibit A1 at [26]

[110] Exhibit A1 at attachment 4D

[111] Exhibit A1 at attachment 6

[112] See, for example, Exhibit R1 at [6]-[7]

[113] See, for example, Exhibit A2 at [72]

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