[2015] FWC 8254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zouheir Yehia
v
Sydney Trains
(U2015/10025)

COMMISSIONER MCKENNA

SYDNEY, 9 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Zouheir Yehia (“the applicant”) has lodged an application, made pursuant to s.394 of the Fair Work Act 2009, seeking an unfair dismissal remedy concerning his dismissal by Sydney Trains (“the respondent”).

[2] As to preliminary matters, the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer; and the dismissal did not involve termination of employment for reasons of redundancy.

[3] The applicant commenced employment with the respondent/its predecessor in 2000, when he was 19 years old. The applicant was most recently employed by the respondent as a Station Duty Manager at a train station at Redfern, New South Wales. There was no evidence of any issues concerning the applicant’s conduct or performance during his period of approximately 15 years’ employment with the respondent prior to certain events on and from 16 November 2014.

[4] The circumstances which commenced the sequence of events preceding the dismissal related, directly and indirectly, to an assault by an unidentified trespasser at Redfern Station on a cleaner employed by the respondent. Shortly stated, after the commencement of inquiries concerning the incident (which was followed by more detailed investigations by a consultant engaged by the respondent), the respondent determined to suspend and subsequently to dismiss the applicant against the background of matters of concern including the applicant’s response to the incident, his veracity about what had occurred and his record-keeping or descriptions of his knowledge about the incident.

[5] A summary of some relevant matters is as follows:

The applicant was on duty as the Station Duty Manager at Redfern station on an overnight shift of 15/16 November 2014.

A Presentation Services Attendant (“PSA”) (a cleaner), whom I will refer to as Mr R, was assaulted on a platform at the station by a trespasser who entered the locked-down station – and who was apparently attempting to rob him.

A number of employees, including the Redfern Intelligence Liaison Officer (“RILO”), came to Mr R’s assistance and one of them unsuccessfully gave chase to the assailant.

There was at least some discussion by way of two-way radios and telephone conversations between the RILO and the applicant, although there was evidence of poor quality reception and the like on the two-way radios. There is some conflict on the evidence as to what was said – and, relevantly, whether the applicant was informed in those communications of an assault on Mr R (or whether he was informed of something lesser, not involving an assault on Mr R – such that Mr R had been abused).

The platform where the incident occurred and the station office are in very close proximity. The applicant did not leave the station office after the communication between the applicant and the RILO concerning Mr R. The applicant’s evidence was that he was in the office counting station cash, having toilet breaks and attending to other duties. A search of the respondent’s computer records did not reveal the applicant as having accessed any computer-based systems during his shift (although one of his colleagues did).

The applicant told the RILO to ask Mr R to come to the station office. Mr R did not attend the station office around the time of his assault. Mr R advised the RILO that he did not want any assistance or action at the time immediately surrounding the assault.

The applicant and the RILO had a discussion at about 5.36am. The evidence of what was then discussed was unclear.

At about 5.45am, one of Mr R’s colleagues arrived at work and she observed that Mr R’s lip was swollen and had a cut on it. When asked about matters, Mr R indicated to her “I got knocked over”. Upon further inquiring what Mr R meant by “knocked over”, Mr R replied “Oh, someone hit me”. Mr R’s colleague - understandably concerned about him - effectively insisted that Mr R go to the office to report the matter and to take any other necessary steps.

Mr R’s colleague, on the respondent’s case (this was disputed in the applicant’s case), asked the applicant whether he was aware of the assault and he responded affirmatively. In what was a short conversation after attending the office, Mr R, somewhat equivocally, stated to the applicant words to the effect that he may have been hit or punched. Mr R informed the applicant he did not want any assistance or action, albeit the applicant made some suggestions in that regard. The applicant requested a statement from Mr R about what had occurred, but Mr R refused to provide a statement. For his part, the applicant (unlike the colleague who had pressed Mr R to go to the office) did not observe any signs of an assault on Mr R. The applicant found it “strange” that someone would be assaulted but not report it to their manager.

This same colleague later sent messages to Mr R, because she was concerned about his well-being. Among other matters, the colleague was concerned that Mr R may have been completely knocked unconscious during the assault and needed to be medically-checked.

The applicant’s shift finished at 6.00am, that is, about 10 to 15 minutes after the brief discussion in the office.

The applicant completed certain entries in the respondent’s records, including in a computerised system named the Network Incident Notice (NIN) system – although not in as timely a way as might otherwise have been expected by the respondent under its policies and procedures, or otherwise; and only following a request from the Station Customer Manager (“SCM”). There was much evidence about a type of draft NIN having been prepared by the applicant, but the respondent’s computer records indicate the applicant did not access any computer systems prior to the completion of his shift at 6.00am.

The applicant did not attend to the completion of the NIN until just before the commencement of his next shift, that is, a delay of about 17 hours. In circumstances where Mr R had refused to provide a statement to the applicant about the incident, and where the applicant had indicated he would nonetheless have to investigate matters, it does not seem unduly untoward that the NIN was not completed by the applicant until around the time of the commencement of his next shift. Nonetheless, it must also be acknowledged that this failure left the afternoon Station Duty Manager in, among other difficulties, the difficult position of having to make inquiries to try to find-out what had occurred the prior night in the absence of a NIN and/or an entry in a diary or diaries used as a type of communication tool between station managers. Some measures were later then put in place concerning Mr R.

Prior to the commencement of his next shift, the applicant had a discussion with the SCM concerning what was by then the subject of various workplace discussions about the assault on Mr R (including reports Mr R was knocked unconscious during the assault – albeit Mr R having been rendered unconscious does not appear to have been captured on the CCTV footage of the assault).

It was following these types of discussions that the applicant sent the NIN to the SCM which referred, in part, to an unknown male having entered the station and having abused and threatened staff before running away – as opposed to having assaulted Mr R.

At some point, Mr R apparently subsequently sought medical attention and made a report to the police (and subsequently also made a workers’ compensation claim).

The investigation of the matter (a “Level 5” investigation was taken-over by the SCM, being what was described in the respondent’s evidence as a safety investigation to determine the root cause of an incident). The investigation proceeded against the background of the apparently erroneous understanding that Mr R had been rendered unconscious as a result of the assault. The investigation also proceeded on the basis that the applicant was not contactable, whereas the applicant and the RILO were intermittently briefly in contact with each other by two-way radio, telephone and in person; and the CCTV footage stills record the applicant entering and exiting the office.

The respondent concluded that the NIN entries and diary entries were, on one characterisation of matters, in effect, false or misleading and designed as some form of cover-up concerning a perceived lack of appropriate and timely response by the applicant concerning the assault on Mr R.

[6] In only some ways does this case turns on what was conveyed to the applicant concerning the incident involving Mr R. The applicant’s evidence is that he was initially informed by the RILO that there was an incident involving abuse rather than an assault, whereas the RILO’s evidence is that he informed the applicant about an assault.

[7] To the extent of any relevant inconsistency, on balance, I tended to prefer the evidence of the applicant that he was not initially informed of an assault. I do not say this by way of criticism of the RILO or his evidence. In this regard, I note that the evidence of both the applicant and the RILO each had internal contradictions and was otherwise characterised by a lack of good recollection. With this noted, I still, on balance, preferred the evidence of the applicant in this regard. I might add it is not surprising that the evidence was characterised by a lack of good recollection given the events in question occurred in November 2014, that is, approximately one year before the hearing of this application (in circumstances where the processes related to the respondent’s investigation of matters, coupled with a Disciplinary Penalty Review Request to the Transport for NSW Disciplinary Panel, spanned from the day after the incident in November 2014 to the date the applicant received advice of the dismissal on 4 August 2015).

[8] The applicant submitted there were other witnesses to some of the conversations between the applicant and the RILO, but those persons had not been called to give evidence in support of the respondent’s case – with the result that the usual inferences should be drawn. The submissions for the applicant continued that the applicant was firm in his evidence that he was not informed that Mr R had been assaulted; that the applicant spoke with the RILO, who was attending upon Mr R (and asked that Mr R come to see him); and Mr R did not attend the office until approximately 5.45am. The applicant then made appropriate inquiries as to whether Mr R wished to have further assistance and the like, but Mr R advised the applicant he did not want any further steps taken. The applicant advised Mr R that, although Mr R would not provide a statement about the incident, nonetheless he would have to carry out his own investigations into the matter. The applicant was, thereby, intending to undertake some further follow-up - but, as things transpired, the SCM determined instead to separately establish a Level 5 investigation. The respondent’s case presented a less-benign description of matters in its submissions than I have outlined here.

[9] The applicant’s evidence was that if anything happened to an employee at the station, the employee invariably comes to the office to report matters to him. This seems an unremarkable proposition. Here, the RILO and the cleaners did not come to the station office to report anything (which they might have done even if Mr R was rejecting their offers of assistance and the like, and knowing he had been assaulted by a trespasser). For his part, Mr R did not come to the office until about 5.45am when his colleague who had just arrived at work insisted he do so; and Mr R’s description to the applicant as to what may or may not have occurred was less than clear. Mr R also declined to accede to the applicant’s request that he provide a statement. I consider the applicant’s response to the two-way radio communications may be considered to be sub-optimal, regardless of whether there was a report to him concerning either abuse of Mr R or an assault on Mr R. A Station Duty Manager might be expected to have been somewhat more pro-active regardless of whether it is accepted the communications referred to abuse or an assault. An incident occurred on the applicant’s watch and, more particularly given the applicant’s prior good employment history, it seems inexplicable that the applicant would not have taken steps reasonably and responsibly expected of him in his employment as the Station Duty Manager.

[10] Matters seemed to have taken on a much a higher level of significance given what transpired as having being a serious assault on Mr R. Moreover, stories were circulating about what happened to Mr R, some of which seemed to be misinformed (although that is not to understate the significance of the assault to which Mr R was subjected by an unknown assailant, while doing no more than going about his job). Furthermore, despite having been asked to do so, through the RILO, Mr R did not attend the office until 5.45am.

I turn now to the criteria for considering harshness etc. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account matters.

Whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees)

[11] I am satisfied the respondent had a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees). Even preferring the applicant’s evidence as to what was relayed to him by the RILO, it may be accepted that the applicant’s response to matters was less than optimal and a cause of legitimate concern to the respondent in relation to a Station Duty Manager. I accept the thrust of the respondent’s submissions to the effect that the applicant should reasonably have been more proactive, but also note that there was a particular set of circumstances here where it was common ground that Mr R initially did not want to do anything or have anything done about the assault (albeit he subsequently sought medical attention and made a police report).

[12] It is not clear why the applicant did not attend to, or more carefully attend to, a NIN, and/or entries in a diary in a more timely way, and/or in the provision of his emailed information to the SCM. These matters would only have taken a comparatively short period of time to attend to; and, had they been attended to, and/or been attended to with greater attention to accuracy, matters may not have taken the course that then unfolded. However, I do not accept the proposition that matters such as certain inaccuracies by the applicant were intended as some form of cover-up. In circumstances where the applicant’s shift was just about to complete and Mr R was emphatic that he did not want anything done, I draw no inferences adverse to the applicant for not completing the NIN until his next shift; but it should have been completed more accurately based on matters then within the applicant’s knowledge. While the language in the NIN could have been cast better, I observe in passing that the emailed correspondence that followed upon the instigation of the Level 5 investigation provided by not only the applicant but the other employees suffered from a similar lack of imprecision and/or detail.

[13] In concluding that the applicant’s NIN, emails and the like were not designed as some type of cover-up I note there was nothing the applicant plausibly would be seeking to cover-up at that point in time when he sent documentation to the SCM – everyone relevantly knew by then that Mr R had been assaulted. A statement Mr R addressed to the SCM, and which was before the external investigator, also indicated that after the assault two employees asked him if he needed an ambulance or wished to make a report to the police; those employees then sat Mr R down in the lunch-room. Mr R’s statement continued that, at 5.45am, when Mr R reported it to the applicant, the applicant was concerned that Mr R did not have a radio and indicated the incident would have to be reported through the “proper channels”. For his part, Mr R subsequently declined to participate in the investigative process instigated by the respondent (and nor did he give evidence in these proceedings).

[14] In correspondence of 12 February 2015 giving notification of misconduct allegations, the Workplace Conduct and Performance Unit advised that disciplinary actions concerning the allegations made against the applicant may include any one or more of the following: caution or reprimand; a fine not exceeding $100; reduction in position, rank or grade of pay; suspension from duty without pay; dismissal (with or without notice).

[15] The applicant was first employed as a 19 year old by the respondent/its predecessor as a Customer Service Attendant. He had worked his way through the ranks without any issues concerning his employment (apart from some matter concerning security issues around the time of the Lindt Café siege, which was not relied upon by the respondent). The applicant had an unblemished employment record. Indeed, not long before the set of circumstances commencing from 16 November 2014 and culminating in the applicant’s eventual dismissal, the respondent presented the applicant with a Certificate of Appreciation in recognition of his on-going commitment to customer service, and his willing attitude and outstanding performance. There was also older letters of appreciation and commendation from various sources – all of which lead to the view the applicant was ordinarily proactive and satisfactory, or highly satisfactory, in the performance of his responsibilities.

[16] It is not clear why the applicant did not deal with matters as optimally as he should have in relation to the matters concerning Mr R on 16 November 2014. I incline to the view, as the applicant’s solicitor put it, that it involved a “mistake”. With an employee who has worked for the respondent for all his adult life, and without any prior incident whatsoever, the decision to dismiss the applicant, while based on a valid reason, can be seen to be harsh – and more particularly in circumstances where the respondent had open to it more proportionate disciplinary actions. To the extent the applicant made mistakes in the wake of the events on 16 November 2014, it would appear to have been an aberration in an otherwise exemplary career in his employment with the respondent.

Whether the person was notified of that reason

[17] The applicant was notified of the reasons for dismissal in a letter which he received on 4 August 2015 and which relevantly read:

“The Transport for NSW Disciplinary Review into the allegation that you committed a breach of the Sydney Trains Code of Conduct has been finalised. Please find attached letter from Transport for NSW for your information.

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

ALLEGATION 1
You breached section 2 of the Sydney Trains Code of Conduct, ‘Acceptable behaviour and responsibilities’ by failing to respond to, manage or document the physical assault of one of your direct reports, [Mr R] on 16 November 2014 at 0259 hours at Redfern Station.

ALLEGATION 2
You breached Network Rule NGE 214 by not completing a timely and accurate NIN relating to the assault of a staff member that occurred during your overnight shift on 15/16 November 2014.

ALLEGATION 3
You breached section 2 of the Sydney Trains Code of Conduct, ‘Acceptable behaviour and responsibilities’ on 16 November 2014 by completing NIN 1427023 using details you knew to be factually incorrect.

ALLEGATION 4
You breached section 2 of the Sydney Trains Code of Conduct, ‘Acceptable behaviour and responsibilities’ by not providing a fulsome [sic] and accurate account of the incident to your direct manager, [the SCM].

ALLEGATION 6
You breached section 2 of the Sydney Trains Code of Conduct, ‘Acceptable behaviour and responsibilities’ by being absent from duty and not contactable by station staff for approximately five (5) hours of your shift on 15/16 November 2014.

The final view of the appropriate disciplinary outcome for you is as follows:

Dismissal

As previously provided in the letter dated 20 May 2015, the termination date of your employment is the date you are advised of the outcome of the Transport for NSW review. Accordingly your employment will be terminated on receipt of this letter. You have had the requisite period of notice as required by the Sydney Trains Enterprise Agreements 2014.

Your file will be marked as not suitable for re-hire in any capacity, including (but not limited to) as labour hire, contractor or consultant.

You must return property, passes, etc that belong to RailCorp/Sydney Trains.”

[18] Allegation 6 is without substance, but the other matters have been made out – except to the extent that I have earlier observed that there were certain extenuating circumstances in relation to the applicant not completing the NIN until around the time of his next shift and I do not accept the applicant sought to intentionally deceive the respondent by providing factually incorrect details.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[19] The applicant, apparently acting on union advice, determined not to participate in an interview, but the union did send a letter addressing a number of the allegations concerning the applicant.

Any unreasonable refusal by the employer to allow the applicant to have a support person present to assist at any discussions relating to dismissal

[20] There was no evidence of any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to the dismissal.

If the dismissal related to unsatisfactory performance by the applicant—whether the applicant had been warned about that unsatisfactory performance before the dismissal

[21] The applicant had received no prior warnings before the dismissal (rather, he had received only commendations and the like).

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[22] The respondent is a large employer with specialist human resources personnel and a legal section. The respondent also arranged for an independent consultant to conduct an investigation.

Any other matters the Commission considers relevant

[23] In reaching my conclusions, I have entirely disregarded the gratuitous - and quite unnecessarily gratuitous – observations and scuttlebutt arising from some of the interviews.

Remedy

[24] While reinstatement is the primary remedy under the Act and this is the remedy sought by the applicant (together with orders for continuity and lost pay), reinstatement would be inappropriate given the matters going fundamentally to loss of trust and confidence – even though the reasons for the dismissal were all effectively entwined with a limited set of circumstances of 16 November 2014. I have considered the applicant’s submission that he has no formal qualifications or experience, and his experience with the respondent is not easily transferred to another employer. Indeed, the letter advising of the dismissal noted that “Your file will be marked as not suitable for re-hire in any capacity, including (but not limited to) as labour hire, contractor or consultant”. At the time of the hearing, the applicant remained unemployed, but was making serious endeavours to find alternative employment.

[25] In circumstances where I have concluded the dismissal was harsh and that the applicant should have an unfair dismissal remedy, I turn now to consider compensation in lieu of reinstatement.

The effect of the order on the viability of the respondent’s enterprise

[26] The order that will issue with this decision will have no effect on the viability of an organisation such as the respondent.

The length of the applicant’s service with the employer

[27] The applicant had approximately 15 years’ service.

The remuneration that the applicant would have received, or would have been likely to receive, if the applicant had not been dismissed

[28] The applicant’s employment would likely have continued indefinitely if he had not been dismissed.

The efforts of the applicant (if any) to mitigate the loss suffered by the person because of the dismissal

[29] The applicant has been seeking alternative employment and ways to upgrade his skills.

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 compensation/The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation.

[30] At least to the time of the hearing, the applicant had not, despite his endeavours, obtained alternative employment and, for the reasons earlier outlined, he may encounter difficulties finding alternative employment.

Any other matter that the Commission considers relevant

[31] I consider the applicant’s previously unblemished record of service with the respondent over a period of 15 years should be taken into account. Also relevant to the order for compensation is the loss of non-transferable credits for an employee with 15 years’ service.

Misconduct reduces amount

[32] The circumstances of this matter do not constitute the applicant having engaged in misconduct. The circumstances turned on a type of inaction rather than misconduct, and I have otherwise concluded that the applicant did not engage in covering-up matters. Absent a finding as to misconduct contributing to the respondent’s decision to dismiss the applicant, there is no cause to reduce the amount of the order on account of misconduct.

Shock, distress etc. disregarded

[33] The amount in the order does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

Compensation cap

[34] The applicant’s outline of submissions set out certain calculations concerning compensation, effectively seeking the maximum available compensation. I am satisfied the applicant should have an order for the maximum compensation available to him. While the respondent did not agree that there should be any order for an unfair dismissal remedy, it is unclear to me whether there is any disagreement as to what would be the maximum compensation. I direct the parties to confer and to prepare a draft order which is to be filed and served within seven days. In the event agreement cannot be reached on the terms of a draft order to give effect to my conclusion, leave is granted to seek a relisting of the application. Any such application should specify a range of time and dates that are mutually convenient to the parties.

COMMISSIONER

Appearances:

D. McEvoy, solicitor, for the applicant.

A. Woods, solicitor, for the respondent.

Hearing details:

2015.

Sydney;

November, 4-5.

Printed by authority of the Commonwealth Government Printer

Zouheir Yehia v Sydney Trains

[2015] FWC 8254

9 DECEMBER 2015

DECISION