| [2022] FWC 2757 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Merhej Elali
v
Sydney Trains
(U2022/2067)
DEPUTY PRESIDENT EASTON |
SYDNEY, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy
[1] Mr Elali was employed with Sydney Trains for nine years. Not only was Mr Elali’s disciplinary record unblemished, on the material filed in these proceedings he was an excellent employee. Mr Elali tendered social media postings of customers singing his praises, including one elderly passenger who took to talk-back radio to thank Mr Elali for driving 25km out of his way, in his own time, when she left her wallet on a train. Mr Elali’s co-workers gave evidence that he is honest, trustworthy, had a great work ethic, always helped customers and school students with any enquiries, always went above and beyond for elderly people to make sure that they were very well looked after, dedicated, enthusiastic, extremely goal driven, a polite family man, proud father of two infant children, dependable, a good leader, a considerate colleague, and a conscientious public servant who put customer need as the centre of his service.
[2] On 25 March 2021 Mr Elali was charged with two crimes: common assault and sexually touching a child between 10 and 16 years of age (per sections 61 and 66DB of the Crimes Act 1900 (NSW)).
[3] The first charge arose because two days earlier Mr Elali hugged a child in the station concourse. The child was in junior high school, on her way to school and in her school sports uniform. The second charge arose because Mr Elali allegedly kissed the child on the neck at the same time as he hugged her.
[4] The name of the young girl and any details that could lead to her identification are subject to a non-publication order. She is referred to in this decision only as “the student”.
[5] Mr Elali’s employment was suspended at the same time that he was charged.
[6] Sydney Trains investigated the incident and ultimately found that Mr Elali had hugged and kissed the student in contravention of its Code of Conduct.
[7] The criminal offences were found proven in the NSW Local Court and in December 2021 Mr Elali was sentenced to a Community Correction Order for the s.66DB offence and a Conditional Release order for the s.61 assault offence. Mr Elali immediately appealed the conviction and sentence to the District Court of NSW.
[8] Sydney Trains moved to dismiss Mr Elali after the conviction in the Local Court and chose not to allow Mr Elali to stay employed on unpaid leave pending the outcome of the appeal. Mr Elali’s dismissal from his employment was effective 28 January 2022.
[9] On 17 February 2022 an application was made to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Sydney Trains.
[10] Mr Elali’s appeal to the District Court was successful. On 31 May 2022 the findings of guilt and orders of the Local Court were set aside.
[11] Mr Elali’s unfair dismissal claim was heard after the District Court appeal proceedings were resolved.
[12] Mr Elali seeks reinstatement to his former position.
[13] It is clear from reviewing documents from the Local Court and District Court proceedings that a kiss on the neck constitutes sexual touching. In the employment context, if Mr Elali in fact kissed the student on her neck then his career at Sydney Trains is finished and his case must lose.
[14] The incident occurred shortly before 8:00am during the commuter peak on Tuesday 23 March 2021 at a suburban railway station. It happened in a public area and was recorded in its entirety on high-definition colour CCTV.
[15] It was raining outside and the CCTV footage shows Mr Elali was mopping the undercover concourse area when the student entered the same area of the station. The student was wearing her school uniform and was on her way to school.
[16] The CCTV footage shows Mr Elali and the student walk towards each other and then hug. The hug lasted two seconds.
[17] The student says that when Mr Elali hugged her he also kissed her on the neck. Mr Elali denies that he kissed the student at all.
[18] The kiss, if there was one, could only have been for a fraction of one second.
[19] After the hug Mr Elali and the student stood near each other and spoke for approximately 90 seconds before the student continued on her way. Many other commuters walked past as the two were speaking.
[20] When the student arrived at school she was upset and told a member of staff about the incident. That school staff member, quite properly, reported the matter to the NSW Police.
[21] Two days later the student was interviewed by police, after which Mr Elali was arrested at his workplace and charged with two offences. Mr Elali’s employment was suspended when he was charged by the police.
[22] The incident on 23 March 2021 must be considered by reference to Mr Elali’s interactions with the student over the four previous months. There was a connection between Mr Elali and the student that adds context to the event on 23 March 2021.
[23] Four months earlier, in November 2020, Mr Elali helped the student when she attended his station one Sunday afternoon in a distressed state. The student said she was being harassed or stalked by another passenger. The student told police that she felt that a male passenger in his 20s had been following her from another station and had said to her that she “looks fucking gorgeous.”
[24] Mr Elali searched the platforms, he said, “to see if the perpetrator could be identified or apprehended.” No perpetrator was found but Mr Elali contacted the student’s father, arranged for the father to meet the student at another station a short distance away, escorted the student to a train, spoke to the train guard to ensure that the student would be looked after until she reached the other station, followed up with the student’s mother to ensure that the student made it to the other station, and encouraged the student’s parents to make a police report about the incident. Mr Elali estimated that the student attended his station for approximately 30 minutes that day.
[25] Sydney Trains agrees that Mr Elali acted appropriately on this occasion.
[26] The November 2020 incident occurred towards the end of the school year. When the student returned to school in 2021 she regularly passed through the station on her way to and from school. Mr Elali says that when the student returned to school “we would occasionally see each other on the station and exchanged greetings and pleasantries.”
[27] On one occasion the student did not have her Opal card and Mr Elali helped her again. That day, 8 March 2021, Mr Elali gave the student a generic Sydney Trains business card and hand wrote “MJ” on the card, which is his nickname, and his work-issued mobile phone number. Mr Elali estimates that he gave out cards with his mobile number to more than 500 customers.
[28] In cross-examination Mr Elali explained why he gave the student the card:
“… the reason why I gave the card initially was that I was worried for her safety, and, you know, if anything happens, because whether it's [Mr Elali’s] station or anywhere else, you know, she could be vulnerable, so, you know, she could (indistinct) straight away, report it to the operations team. That's why I gave her my card and the number. So if she's ever in danger she can call the station duty manager which is myself and who has the duty of care. Like even to the point that if I'm off duty that's where I go above and beyond. I take my job very seriously, and I just wanted to protect this customer who had this incident on my station.”
[29] In its disciplinary process Sydney Trains alleged that Mr Elali acted “inappropriately” by giving the student his work-issued mobile phone number. The external investigator thought this allegation was not sustained and Sydney Trains abandoned the allegation prior to dismissal. I have more to say below about this matter.
[30] Importantly, at the hearing Sydney Trains did not allege that Mr Elali behaved inappropriately in any of his dealings with the student prior to 23 March 2021.
[31] It is important to state that the student’s honesty is absolutely not in question. Quite properly, nobody in the criminal proceedings or in these proceedings has said that the student gave a false or dishonest account of the incident to the Police or in the Local Court proceedings.
[32] The student was interviewed by police on 25 March 2021 and again on 3 April 2021. The student also gave evidence in the Local Court proceedings nine months after the event.
[33] In his evidentiary case Mr Elali relied on documents pertaining to the criminal proceedings in the Local Court and the appeal to the District Court. Mr Elali’s counsel explained that these materials were tendered in the Commission proceedings “as an accurate record of what transpired in those matters by way of honesty and transparency.”
[34] Sydney Trains relied heavily on material obtained under an Order for Production issued to NSW Police, particularly transcripts and recordings of interviews with the student, her older sister and a staff member of the student’s school.
[35] Although both parties tendered and relied on transcripts of statements made by the student in the course of the criminal proceedings, the parties did not agree on the evidentiary weight that could be given to these materials.
[36] The student was not called to give evidence, nor was her older sister. Sydney Trains’ decision not to compel the student to give evidence was entirely appropriate, and similarly the decision not to compel the student’s older sister was appropriate. Counsel for Mr Elali quite properly did not take issue with these matters.
[37] Sydney Trains sought to rely on transcripts of the student’s earlier statements as proof of the truth of the matters contained therein, and not just as proof of the making of the statements. Sydney Trains submitted that because the student attested to the truthfulness of her earlier statements when under oath in the Local Court proceedings, and because she had “already gone through the trauma of having given evidence once”, there was therefore “a basis, at least under conventional evidence law, to say that she's unavailable [to give evidence].” Sydney Trains also argued that “we can't forget the voice of the victim here” and that the student “shouldn't be shut out [of] at least having her voice heard.”
[38] Mr Elali argued that the statements should only be admitted as proof of the making of the prior statements, rather than as proof of the truth of the contents of the statements. Mr Elali submitted “this is not a question of … what [the student] genuinely believes, it's all about whether that genuine belief was reliable and whether that [belief] stacks up as against, having regard to the video footage, whether Sydney Trains have proven their case.”
[39] In this matter I have carefully read the transcripts of police interviews and the transcript from the student’s evidence in the local court and considered that evidence in light of the CCTV footage and also in recognition of the fact that Mr Elali did not have the opportunity to query or further explore the student’s accounts of the incident.
[40] Two days after the incident the student was interviewed at her school by a police officer. In that interview the student gave the following account of the incident: 1
“[After the November 2020 incident] So then I just, he was looking out for me. And then it was all fine until I, when I would see him at [the Station], he'd be like, Hi. And he'd notice me from a while away and be like, Oh, hi. That was nice, and then he kept approaching me. And when I was, when I wouldn't be with my siblings, he'd come up to me. And then, he gave me this card ... of his number. He's like, Here's my number. If you ever need anything, you can call me. And when I'm with my siblings, he doesn't come up to me. He'll just be like, Hi, from a distance. And then yesterday, I think it was yesterday or the, I don't remember, yeah. And then yesterday, he was like, Oh, and then he came up to me 'cause my siblings were at [another place], so then I was by myself. And he came up and hugged me and he's really tall. Then his face went on my neck. And then he hugged me and then I felt him kiss me a bit. And I know it wasn't the right thing to hug him back, but at the moment, I didn't have the guts to be, like, no, you know. And then he was talking to me about school and stuff. And then he was like, what year are you in, I was like, I'm in year 8. And then he's like, Oh, you look like you're in year 10. Then I was like, OK. And then he kept talking to me. He's like, If you ever want to talk, you, like, come in my office and talk to me about anything. And I was like, Yeah. And then I was like, I have to go to school, so I left.
…
[after describing the concourse area] He was just in the middle of, he was in front of everyone, he just came up and hugged me.
… he just came up and hugged me and I kind of froze, I didn't know what to do.
[he hugged me] From the front, he put his arms around me.
… I didn't know what to do so I just, I hugged back. I didn't know what to do.
…
He just always says, hi, but that was, like, the main bad stuff he did when he approached me.”
[41] In this interview the student was asked to indicate where Mr Elali had kissed her and the student pointed to the left side of her neck. There is no dispute that the student pointed to the wrong side of her neck. That is, it is clear from the CCTV footage that if Mr Elali did kiss the student on the neck at all, he could only have kissed the right side of her neck.
[42] The student gave evidence in the Local Court proceedings and was very briefly cross-examined. The recordings of the two prior interviews were played in Court and when asked by the Prosecutor “you said, in the first video you watched, that the person who hugged to you kissed you. How do you know that he kissed you?” the student answered:
“Because his face went into my neck and I could feel his lips against me.”
[43] When asked in cross-examination whether she could be mistaken about feeling Mr Elali kiss her neck, the student answered:
“No, I felt his lips against me.”
[44] Mr Elali is now 31 years old. He is married and has two children. He commenced employment with Sydney Trains in 2012, initially as a Cleaner, then Cleaner in Charge. Customer Service Attendant, Trainee Train Guard, Customer Service Attendant & Team Leader, and then was appointed a Station Duty Manager in 2019. As described above, Mr Elali has received numerous compliments and commendations for his work and was an exemplary employee.
[45] In his written statement Mr Elali provided details of the incident in November 2020 when he assisted the student at his station. He also described meeting the student again on 8 March 2021 when she was having difficulty with her student Opal card.
[46] His initial account of the incident on 23 March 2021 is short and to the point:
“The video and photo evidence which is available demonstrates that on 23 March 2021 we exchanged a hug and spoke and no more.”
[47] Mr Elali does describe in some detail the conversation that he had with the student that morning. On his version they spoke about the rain, the student’s school, the subjects Mr Elali studied in school, and the high school that Mr Elali attended.
[48] There are two points to note about Mr Elali’s account of this conversation. Firstly, the conversation is in general terms only and quite harmless: for example Mr Elali said he hated maths and the student volunteered that she also hates maths.
[49] Secondly, and more importantly, Mr Elali did ask Mr Elali what year she was in and did comment that she looked older - which is consistent with the student’s much shorter account of the same conversation. The full text of Mr Elali’s version of this part of the conversation is as follows:
“Me: My colleagues say to me that [the student’s] School is a top notch school. Is it a selective school?
Student: Yes
Me: Out of curiosity, how much do you pay each year for enrolment?
Student: I wouldn’t have a clue. My parents would know as they are paying for me and my sister. Depends on the year you’re in.
Me: So, what year are you in.
Student: I’m in Year 8
Me: Oh, I thought you were in Year 10.
Me: That brings me way back when I was in Year 8. I studied Maths, …..”
[50] Mr Elali’s witness statement chronicles the disciplinary procedure undertaken by Sydney Trains in relation to his employment. There is no real contest about whether Mr Elali was afforded procedural fairness and it is not necessary to describe the process in any further detail, except to note:
(a) when Mr Elali was charged he was immediately suspended with pay;
(b) Sydney Trains engaged an external provider to conduct an investigation;
(c) Mr Elali’s solicitor was initially denied a copy of the investigator’s report, but was later permitted to view the report online;
(d) in October 2021 Sydney Trains advised Mr Elali that the disciplinary process would be placed on hold pending the outcome of the related criminal charges;
(e) after the offences were found proven in the Local Court, Sydney Trains wrote to Mr Elali advising of its intention to suspend him without pay;
(f) in January 2022, shortly before his dismissal, Mr Elali asked that a final determination about his employment be delayed until his appeal in the District Court was determined; and
(g) on 28 January 2022 Sydney Trains confirmed that Mr Elali’s employment was terminated.
[51] In his written statement Mr Elali also included evidence about his health after he was suspended. He developed a depressive condition for which he received medical treatment, gained approximately 20kg and consulted a dietician, suffered a deterioration in relations with his wife caused by a combination of the criminal charges he was facing and his “mood etc”, he developed hair loss and says that “relations with my father, brothers and many prior friends deteriorated and [were] destroyed.”
[52] In his filed written statement in reply, and perhaps in response to some particular opinion evidence and submissions filed by Sydney Trains referred to later in this decision, Mr Elali elaborated on why he gave the student a business card with his mobile phone number on it on 8 March 2021. Mr Elali said:
“I provided my business card to assist the customer, it included my work number. I deny using the words the deposed to therein. What I said was words to the effect:
“If you need any guidance or you’re ever in danger on the station, this is my number to call me and we are here to support you if you need anything.”
The student accepted the card at the time with the words to the effect, “Thank you, will
do.”
….
It was not my intention to become close to [the student]. I merely provided a business card with my work number on it as I have with many of our customers over the years of my employment with the Respondent.”
[53] Mr Elali gave evidence in the Commission and was cross-examined extensively about the incident on 23 March 2021 and its aftermath. Mr Elali’s evidence under cross-examination was largely unremarkable and overall his evidence was given truthfully and cooperatively.
[54] Mr Elali was asked about Sydney Trains’ Code of Conduct, and Sydney Trains’ general expectations about treating customers “fairly, consistently and with respect.” He accepted that he was required to treat customers fairly, consistently and with respect, and that in his 11 years of employment he received training on the Code of Conduct, and agreed that the Code includes a specific section on children.
[55] Mr Elali accepted the generalised propositions put to him that he knew that Sydney Trains expected staff to take special care of children because of the inherent vulnerability of children under 18. Mr Elali also accepted the general propositions that harassment could include a single episode, and that touching another person without permission could be assault.
[56] Mr Elali did not recall receiving any training specific to dealing with children, and Sydney Trains led no evidence of any specific training in this regard.
[57] In cross-examination Mr Elali expressed concern that Sydney Trains had not provided any training in relation to dealing with children and the particular circumstances in which staff might be required to differentiate or take special care to ensure the safety of children.
[58] When cross-examined about the appropriateness of hugging children generally and the student specifically, Mr Elali said he thought from the student’s body language that she looked like she was going to hug him - and then referred to the fact that he had not received training on how to deflect hugs:
“Q: Now, you've had training in the code of conduct and the bullying harassment policy, correct?
A: Yes.
Q: You're the station leader, you're the leader of the station at this point in time, correct?
A: Yes.
Q: You know that if you want to make contact with someone else you need to make sure that they welcome that conduct or consent to it, correct?
A: And it was consented. She put both her arms around me - - -
Q: Hold on - - -?
A: And no one taught me how to deflect hugs. So if you're referring to the code of conduct there's nothing specifically saying how should I deflect hugs or how to react in such situations, especially when I'm mopping the floors and I'm putting my (indistinct) helping my team.
Q: Are you seriously saying that you need to be told, that you had to be told how to deflect a hug. Is that what your serious evidence is to this Commission?
A: No. So I don't know why you've put your – this is not the words I said, so I don't know what you make out of it, but what I'm saying is there's nothing to be – that was given training in terms of hug or how you should react in such approaches. I just wish there was training given in that regards like we have for other situations for training.
…
Q: It was obvious to you from your training, it was obvious to you from the code of conduct that you were to make sure that person welcomed the contact and consented to it, and that was not enough that someone smiled at you and made eye contact with you to indicate that she was welcoming and consenting to a hug?
A: I was never taught how to do that differently, and this situation it was like a bullet, it wasn't something I was able to think before. It just happened straight because I was focused on the floors, so it just popped up, and I just – like I said I could have pushed her, she would have slipped, she would have fallen, so the best thing for me to do at that stage was to actually tap her on the back, and while I had my mop stick on my left.”
[59] Later in cross-examination Mr Elali gave the following evidence:
“Q: [Do you believe] it makes no difference whether or not you're hugging a child or hugging an adult?
A: So maybe I didn't clarify myself at the time but it's like a father hugging his daughter or – you know – hugging a niece or anything. I don't know why my – the way this hug was taken as a form of incrimination and malicious activity and stuff. So I was just only being friendly and caring and that's just me. Like this is my personality.
Q: Does it remain your view that it makes no difference whether or not you're hugging a child or you're hugging an adult?
A: Makes no difference. I just wish there was some training too – Your Honour – to show us, you know, what's right and what's wrong when it comes to hugs. Like I mean I really can't answer your question because I have never in my life did I ever think a hug is against the law. Whether it's on compassionate grounds, whether it's on friendly grounds. Look, I really wish someone told me how to react in these situations.”
[60] Four of Mr Elali’s work colleagues provided statements testifying to Mr Elali’s character and work ethic, none of whom were required for cross-examination. Mr Elali also relied on evidence from his treating psychologist who attested to Mr Elali’s Major Depressive Disorder that developed after he was charged by the Police and stood down from his employment.
[61] Mr Elali also relied on documents pertaining to the criminal proceedings in the Local Court and the appeal to the District Court.
[62] Sydney Trains led no direct evidence in relation to the incident itself, save for CCTV footage captured from two angles.
[63] Sydney Trains relied upon evidence from Ms Maureen Clark, who is employed as the Head of Service Experience, Customer Operations, Sydney Trains. Ms Clark did not have authority to make a final decision about Mr Elali’s employment but spoke to the decision maker about her decision and, for what it is worth, says that the decision maker “carefully reviewed and considered” certain materials curated or overseen by Ms Clark. The decision-maker no longer works at Sydney Trains and did not give evidence.
[64] Ms Clark gave evidence of an investigation undertaken by an external investigator and the written report of the investigator was relied upon by Sydney Trains at hearing. The external investigator expressed certain opinions on what the CCTV footage showed, and of Mr Elali’s conduct.
[65] In her written statement and under cross-examine Ms Clark also expressed certain opinions about the character or nature of Mr Elali’s alleged conduct.
[66] Neither Ms Clark’s nor the investigator’s opinions are particularly relevant to the matters I must adjudicate. I am not critical of the investigator or Ms Clark in this regard, or of the opinions they expressed. I simply note that neither person could give direct evidence about the incident itself, or even direct evidence about Mr Elali’s work performance or history. Their subjective opinions about the very matters I must decide carry no substantive weight in my deliberations.
[67] Sydney Trains relied heavily on material obtained via an Order for Production issued to NSW Police, particularly transcripts and recordings of interviews with the student, her older sister and a staff member of the student’s school. None of these people were called to give evidence.
[68] Sydney Trains also relied on a statement by Dr Armand Casolin. Dr Casolin is employed as the Chief Health Officer for Transport for NSW. Dr Casolin has responsibility for providing expert health advice to both Sydney Trains and NSW Trains. Dr Casolin reviewed Mr Elali’s witness statement filed in these proceedings, as well as correspondence and a witness statement from Mr Elali’s treating psychologist. Dr Casolin concludes from this information “[Mr Elali] may not be fit, or fully fit, to currently work as a Station Duty Manager, or in any role at Sydney Trains.”
[69] The full transcript of the proceedings in the NSW Local Court was in evidence in the proceedings. Magistrate Huber delivered an ex-tempore decision on the day of hearing. The central aspects of her Honour’s reasoning are in the following extract from the transcript:
“There are a number of inconsistencies, which I have already indicated, between what Mr Elali told the police on the day - or day after - two days later, contained within his record of interview and what he told the Court today with respect to - in cross-examination, initially and what is contained within the CCTV footage.
I have no doubt that the accused initiated the hug, in circumstances that he was reckless with respect to whether or not the complainant consented to being hugged in any way, or touched and that the contact was indeed immediate and unlawful and I find that offence proved. The conduct was without any lawful excuse, the force was unlawful and he was reckless. In coming to that view, I do indeed reject his evidence with respect to the assault.
With respect to the kissing, again, when I have regard to the evidence which he gave in relation to the manner in which the contact of the hug and the position of his face - certainly, the evidence from the CCTV footage is not inconsistent with his lips touching the neck and indeed, it is consistent with nuzzling and his lips touching her neck.
When I have regard to his inconsistent evidence in relation to how that contact - that is, the initial hug - took place, I reject his evidence in relation to his statement that he never kissed her neck.
I have regard to s 66DB, whereby any person who intentionally sexually touches a child who is of or above the age of ten years and under the age of 16 is guilty of an offence. I then have regard to 61HB, being the meaning of "sexual touching". I note that "'sexual touching' means a person touching another person with any part of the body or with anything else, in circumstances where a reasonable person would consider the touching to be sexual". The fact that there is no evidence - indeed, Mr Elali denies obtaining sexual arousal or sexual gratification. That is not necessary for there to be a sexual touching. [the student] was quite clear in her evidence, that she felt lips upon her neck, in circumstances where, quite frankly, it could not be viewed by a reasonable person as being anything other than sexual.”
[70] The central inconsistency between Mr Elali’s account given to police on 25 March 2021 and the CCTV footage seems to be that Mr Elali told the police that the student extended her arm out to him first, which the CCTV footage shows is clearly not correct.
[71] It is significant to note that Mr Elali saw the CCTV footage for the first time at the Local Court hearing. His recollection of the event itself, which happened over approximately 8 seconds, was faulty in this regard. The student’s recollection was also faulty. She told police that he hugged her with two hands, and it is clear in the video that Mr Elali hugged her with only his right hand. Nonetheless, as can be seen from the above excerpt, Magistrate Huber appears to have found the inconsistency in Mr Elali’s account important.
[72] On appeal in the District Court Justice Hunt considered the CCTV footage more carefully and reached a very different conclusion. The following excerpt from his Honour’s decision reveals the central reasoning:
“Much was made both in the record of interview and in the appellant’s evidence in the Local Court to his perceptions of what occurred during the time that he hugged the complainant. There is no question that it was inappropriate for him to hug the complainant in all the circumstances. I am sure the applicant now wishes he had not done so. I had the benefit of watching both pieces of CCTV footage both before and after I had read all the other evidentiary material.
Accordingly, I consider I was able to bring a fairly neutral mind to the interaction as filmed when I first viewed it without having read what the complainant or the appellant contended for. Whoever was the first to actually make a hugging motion, a fair, balanced assessment of what could be seen on the footage is seemingly two people who are pleased to see each other and engaging in a very brief platonic hug. I note that when one breaks it down frame by frame, it is clear that the appellant was the first to reach one hand out.
To the extent that the complainant said as convincingly as she said that he kissed her on the neck, that he put both his arms around her, that was clearly not right. That is because the appellant still have one hand and arm occupied by the mop that was in one hand. To the extent that the appellant did hug the complainant in such a way that one hand was around the back of the complainant’s back, I note that he patted her in what I would describe as an avuncular fashion rather than say, caressing or rubbing her back, as an example. It is clear from both my initial and final viewing of that footage that at the time the appellant actually makes a motion to commence the hug, that the complainant gets onto her tippy toes and hugs him back by putting her arm high around his neck.
I have no doubt that the complainant believes that the appellant kissed her on the neck. Even though it looked from the footage that the complainant was welcoming and consenting to the embrace and reciprocating it, it is quite clear that a thirteen-year-old girl would have been taken aback by that level of friendliness. One can also infer, as a result of an earlier unfortunate incident where a male person apparently did stalk and follow the complainant on a train that led to the appellant’s first pastoral deals with her that the complainant is likely to have become hyper vigilant.
Against that, the most telling matter that gives me some significant doubt as to whether there was a kiss to the neck notwithstanding the complainant’s belief about that is a still photograph [that] I believe represents the very high water mark of the Crown case. That image to be found at p 36 of the Crown bundle.
In the spirit of making sure that I had not misled myself after a relatively robust exchange with Mr Brookman for the prosecution as to what might be drawn from that image, I took the advantage in a digital version of blowing that image up to view it closely.
My analysis of this issue rests on available conclusion that the actual clinching and the position of the appellant’s head alongside the complainant’s head last a matter of a second or two. In that still image, the right-hand cheek of the appellant (given the position of the parties generally) is alongside the hair and about the level of the complainant’s ear. I was careful to watch on my second viewing that there was not what one might describe as a “double movement” whereby as the appellant pulled away, his mouth could have become positioned lower on the complainant’s neck.
I am left in a significant amount of doubt as to what actually happened. Given that that still image represents the high-water mark of the Crown case in the term of the CCTV footage, I have some doubt about the appellant’s lips having been in any contact with the complainant’s neck.
I do accept other than perhaps a mere and accidental brushing, that any full lip contact with the bare neck of a 13 year-old schoolgirl complainant by an adult made (and one arguable in authority in a general sense because of his position at the railway station) would almost always have a sexual character for the purpose of sub (c) of the relevant provision that defines “sexual touching”.
Not only did the appellant raise his good character but he relied on a range of testimonials that spoke of what I would describe his gregarious efficiency in the discharge of his duties.”
[73] Mr Elali’s employment was immediately suspended when he was charged. Sydney Trains investigated the incident and Mr Elali took the opportunity to provide a response to the allegations put against him by Sydney Trains. Mr Elali provided his response without having seen the CCTV footage, and some aspects of his recollection of the event are not consistent with the video. Sydney Trains moved quickly to conclude its investigation and then waited for several months until the criminal charges were resolved in the Local Court.
[74] The CCTV footage shows Mr Elali moving up and down a wide pedestrian ramp near the exit to the station with a mop. There are many commuters moving through the concourse and Mr Elali is seen mopping the ramp area. As Mr Elali mops down the exit ramp at 7:56am, the student can be seen passing through the ticket gates from the platforms and moving towards the concourse area and towards Mr Elali.
[75] According to the timestamp on the video, there is approximately six seconds between the time Mr Elali and the student could reasonably have noticed each other and when the hug commences. During these six seconds both Mr Elali and the student walk towards each other and neither of them appears to stop walking before the hug commences.
[76] I agree with Justice Hunt that “what could be seen on the footage is seemingly two people who are pleased to see each other and engaging in a very brief platonic hug.” The student is clearly smiling as she approaches Mr Elali, and he is smiling also.
[77] Initially Mr Elali was holding the mop in his right hand, but he moves the mop into his left hand and then angles the left side of his body away from the student, simultaneously extending his right arm out towards the student. Mr Elali is the first of the two to reach an arm out towards the other.
[78] The student is seen placing something in her pocket with her right hand as she walks towards Mr Elali and her right arm and elbow are raised as she does so. By the time the student and Mr Elali are together, she moves up onto tippy-toes and extends her right arm over Mr Elali’s left shoulder to hug him.
[79] Both use only their right arms to hug the other – the student is holding something in her left hand at hip-height and Mr Elali is holding his mop slightly behind him in his left hand.
[80] The hug itself lasts less than two seconds and Mr Elali’s torso remains angled away from the student.
[81] Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Elali’s dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[82] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
[83] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reason (s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
[84] In Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] (“Hilder”) the Full Bench summarised the well-established principles for determining such matters:
“The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”
[85] In Hilder the Full Bench also found at [29]:
“However, the Deputy President’s consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains’ dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.”
[86] Sydney Trains relied on two reasons for dismissal:
(a) the fact that Mr Elali kissed the student on the neck; and
(b) even if Mr Elali didn’t kiss the student on the neck, the fact that Mr Elali hugged the student.
[87] Sydney Trains submits that both actions by Mr Elali were misconduct.
[88] As per Hilder above, I must determine whether the conduct occurred and what it involved. The question of whether the alleged conduct took place and what it involved is to be determined based on the evidence in the proceedings. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination (per King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [23]-[24], Print S4213).
[89] In opening his case, counsel for Mr Elali properly accepted that Mr Elali’s case stands or falls on the finding of fact regarding the kiss. That is, if I am satisfied that Mr Elali did kiss the student then Mr Elali accepts that there is a valid reason for dismissal and his case could not succeed.
[90] Because of the nature of the alleged conduct, the stakes are very high:
(a) the student and her family firmly and honestly believe that the student was the victim of terrible conduct by Mr Elali;
(b) if Mr Elali did in fact kiss the student on the neck, his conduct was sexual in nature and despicable;
(c) after he was charged Mr Elali’s world was turned upside down. He suffered physically and psychologically, his marriage and relationships with others deteriorated, and he was suspended and then dismissed from a job he loved;
(d) if Mr Elali did not kiss the student then it is important to do what can be done to address such a drastic turn of events; and
(e) Sydney Trains moved quickly to suspend Mr Elali and remove him from the workplace once he was charged. At the time Sydney Trains dismissed Mr Elali he was a person convicted of a serious crime. The Commission should not lightly interfere with Sydney Trains’ decision.
[91] The primary evidence in this matter is the CCTV video footage. The other evidence must necessarily be assessed by reference to the video evidence. In this regard I have adopted the following approach:
(a) if the video was unambiguously clear, one way or the other, then it should be preferred over the recollection of Mr Elali or the student;
(b) if the video was inconclusive or capable of supporting both witness accounts, then the personal accounts will carry significantly more weight than they otherwise might; and
(c) it is possible that one of the personal accounts is so overwhelmingly persuasive that it could only be displaced by clearest of video evidence.
[92] As referred to above, both Mr Elali and the student’s recollections were wrong about a less significant detail – Mr Elali thought that the student extended her arm out to him first and the student thought that Mr Elali hugged her with both hands. Neither mistake damages nor calls into question the reliability of that person’s recollection.
[93] I have viewed the video again and again and I am comfortably satisfied that it does not show that Mr Elali kissed the student.
[94] The quality of the CCTV footage is very good. The video does not support the student’s account as far as it does not show Mr Elali kissing the student on the neck or show even a moment where it could have been possible for Mr Elali to kiss the student on the neck.
[95] The video does not wholly exculpate Mr Elali because his lips are not visible during all of the footage. From one camera angle Mr Elali’s face is rarely visible. From the other camera angle Mr Elali’s face is visible for almost all of the sequence. There is, however, a small portion of the sequence where Mr Elali’s face is obscured by the student’s head.
[96] As the two come together their heads and faces are close for less than two seconds. On the video Mr Elali can be seen tilting his head downwards slightly during part of the two seconds of the hug.
[97] Crucially, the footage does not, in my view, show Mr Elali tilting his head or his face towards the student’s neck. If any part of Mr Elali’s face touched the student’s face or neck during the hug, it could not have been Mr Elali’s lips because his head was not ever sufficiently turned towards the student. As Hunt J describes it:
“… the right-hand cheek of [Mr Elali] (given the position of the parties generally) is alongside the hair and about the level of [the student’s] ear.”
[98] The Police Fact Sheet prepared for the local court proceedings refers to the CCTV footage and states that “the accused head and face can be seen nuzzling into the right side of the victims neck.” I do not agree. In my view the video is clear and does not show any kind of “nuzzling” by Mr Elali.
[99] I also note that Mr Elali has a beard. None of the student’s statements refer to her feeling Mr Elali’s beard or whiskers on her neck or face.
[100] I cannot therefore find as a matter of fact on the evidence that Mr Elali kissed the student, and therefore cannot find that there was a valid reason to dismiss Mr Elali from his employment in relation to the alleged kiss.
[101] The second reason for dismissal relied on by Sydney Trains in these proceedings is the fact that Mr Elali hugged the student. Quite obviously there is no factual dispute about whether Mr Elali hugged the student.
[102] Mr Elali accepted in his evidence and submissions that hugging the student was inappropriate. Applying the methodology in Hilder’s Case, and in particular principle (4) that it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee to demonstrate that there was a valid reason for the employee’s dismissal, it is quite clear that the hugging of the student constitutes a valid reason for dismissal for the purposes of s.387(a) of the FW Act.
Was the Applicant notified of the valid reason (s.387(b))?
[103] Section 387(b) requires me to take into account whether Mr Elali “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
[104] I have found that there was a valid reason to dismiss Mr Elali - being the hugging of a customer who is a child. The hugging of the student was one of the stated elements of Allegation 2 put to Mr Elali throughout the disciplinary process. I am satisfied that Mr Elali was notified of this valid reason for dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
[105] Mr Elali was given a proper opportunity to respond to the allegations against him.
[106] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?
[107] This factor is not a relevant consideration in this matter. In the disciplinary process Mr Elali corresponded with Sydney Trains through a legal representative.
Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?
[108] As the dismissal did not relate to alleged unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?
[109] Neither party submitted that the size of Sydney Trains’ enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Sydney Trains’ enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(g))?
[110] Sydney Trains’ enterprise does not lack dedicated human resource management specialists.
What other matters are relevant (s.387(h))?
[111] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[112] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).
[113] The parties both agreed that Mr Elali acted inappropriately when he hugged the student. I have found this conduct to be a valid reason for dismissal.
[114] Under cross-examination Mr Elali explained that the moment occurred very quickly. He said “this situation it was like a bullet, it wasn't something I was able to think before. It just happened straight because I was focused on the floors, so it just popped up.” I do not completely accept this explanation because there was approximately six seconds between when the two appear to recognise each other and the hug itself.
[115] The was a connection between Mr Elali and the student insofar as she was not a random schoolgirl passing through his station – he had helped her before when she was distressed and sought protection, and there had been friendly passing exchanges after that event.
[116] This connection did not give Mr Elali permission or licence to invade the student’s personal space, or to touch or hug her against her wishes. However Mr Elali genuinely believed that the student was about to hug him, and that the hug was consensual.
[117] With the benefit of hindsight Mr Elali acknowledges that what he should have done, even if he thought she was about to hug him, was take some kind of measure to deflect or stop the hug. The added complication for Mr Elali was that in a matter of seconds he needed to find a way to deflect the hug that didn’t cause offence to the student.
[118] In cross-examination (referred to above) Mr Elali raised a concern that he had not received any training on such matters. In closing submissions Sydney Trains lambasted Mr Elali for these statements, submitting that he was blame-shifting and that his answers proved that he lacked insight into his behaviour. I do not accept these submissions.
[119] Lest there be any confusion, an employee does not have to be explicitly told that criminal sexual conduct towards a child is misconduct that will result in summary dismissal. No employee could legitimately claim unfair treatment in their employment if they engage in such criminal conduct. Mr Elali did not make such a complaint.
[120] Rather, Mr Elali expressed uncertainties about the boundaries of appropriateness when dealing with children, particularly in the split-second moment when the child was moving towards him looking like she was about to hug him. His uncertainty is understandable. In his position he was not required to have a Working With Children Check clearance and there is no evidence of any specific training provided by Sydney Trains in relation to dealing with children. Further, it seems to be acknowledged in these proceedings that in some instances it may be necessary and appropriate for an employee of Sydney Trains to touch or hug a child – such as when a child is lost and/or distressed.
[121] One further matter requires comment. Sydney Trains does not allege that Mr Elali engaged in any kind of grooming behaviour and in my view there is no evidence at all upon which such an allegation could be made.
[122] However, in its filed material Sydney Trains tried to cast a more sinister light upon Mr Elali’s actions prior to the incident on 23 March 2021.
[123] In her evidence Ms Clark suggests that Mr Elali gave “targeted attention” to the student and that prior to the incident on 23 March 2021 “he appears to have engaged in a potentially predatory course of conduct.” In cross examination Ms Clark indicated that after she received the external investigator’s report she formed the view that Mr Elali had given the student “targeted attention”, was “attempting to become close to [the student]” when overseeing the disciplinary process that led to Mr Elali’s dismissal.
[124] Ms Clark’s opinion was endorsed in Sydney Trains’ written submissions. Sydney Trains submitted that Mr Elali “engaged in a course of targeted conduct towards the student, which includes the conduct the subject of Allegation 1.”
[125] The reference to “Allegation 1” in this regard is a reference to an allegation that Mr Elali acted “inappropriately” when he gave the student a Sydney Trains business card with his work mobile number on it. Allegation 1 was investigated and abandoned by Sydney Trains prior to dismissing Mr Elali.
[126] At the hearing counsel for Sydney Trains then disavowed Ms Clark’s opinion evidence:
“MR SECK: Can I make clear, Deputy President, if it's not clear that whilst Ms Clark has expressed those views, those are obviously not the allegations which were ultimately made against Mr Elali, or proven against him. For the purposes of ascertaining whether or not there was a valid reason, related conduct for the capacity for the purposes of section 387(a) it will not be my submission that there was any predatory conduct of a sexual nature engaged in by Mr Elali, or anything which is of a sexual nature.”
[127] The notion or allegation that Mr Elali had engaged in “a potentially predatory course of conduct” was never put to Mr Elali prior to his dismissal. Nor was the concern that Mr Elali had given the student targeted attention, nor was the concern that Mr Elali was attempting to become close to the student.
[128] I am very concerned that such serious allegations were so flimsily put, endorsed in submissions and then lightly abandoned at hearing - particularly in light of the evidence of Mr Elali’s Major Depressive Disorder that developed after he was charged by the Police and stood down from his employment.
[129] Although a single hug of a child could be a valid reason for dismissal, in all the circumstances of this matter, including particularly Mr Elali’s length of service and his exemplary record, his history of satisfactory if not commendable dealings with the student, it is harsh and/or unreasonable to dismiss Mr Elali without some kind of warning first.
[130] Sydney Trains must be uncompromisingly vigilant about matters of child protection. Sydney Trains must apply and enforce proper boundaries of behaviour to keep staff and customers safe, particularly children.
[131] Staff should not hug customers who are children except in extreme and unusual circumstances, such as providing necessary comfort or protection to a child that is distressed or in danger.
[132] Mr Elali’s action in hugging the child fell on the wrong side of the boundaries that workers must keep within. Workers cannot be physically familiar with customers, particularly when those customers might be children that are inherently vulnerable simply because of their age and inexperience.
[133] However Sydney Trains can be uncompromisingly vigilant and can enforce proper boundaries without dismissing Mr Elali because of one isolated incident in which he hugged a child. In the circumstances the dismissal of Mr Elali was harsh.
[134] It is also important to recognise the dilemma faced by Sydney Trains at the time it decided to terminate Mr Elali’s employment. By December 2021 Mr Elali had been convicted of a serious child-related offence. Mr Elali had lodged an appeal in relation to the conviction but Sydney Trains’ external investigator, and Ms Clark, and the decision maker and a Local Court Magistrate had all formed the view that Mr Elali did in fact kiss the student on the neck. The child protection element in this situation, and the conviction at first instance in the Local Court, combine to make Sydney Trains’ decision eminently understandable.
[135] To be clear, in determining whether Mr Elali kissed the student on the neck (that is, in determining whether there was a valid reason for dismissal) I have not taken into account the fact that Mr Elali was convicted in the Local Court, or the fact that the conviction was quashed. The Commission’s task is to decide for itself whether the alleged misconduct occurred.
[136] The timing of the Local Court and District Court proceedings is relevant to consideration of the position Sydney Trains was in at the time it made its decision, and relevant to matters the harshness of the dismissal - particularly in consideration of whether Sydney Trains should have granted Mr Elali’s application for ongoing unpaid leave pending the outcome of the District Court proceedings.
[137] In my view Sydney Trains’ decision not to allow Mr Elali to take unpaid leave is not a decisive factor.
[138] Mr Elali was suspended on pay for more than eight months from March 2021 until December 2021. Sydney Trains led no evidence of any operational difficulties or imperatives that meant that it could not have allowed Mr Elali to remain on unpaid leave. It was open to Sydney Trains to allow Mr Elali the extra time, particularly after he asked for unpaid leave.
[139] However Sydney Trains had already investigated the matter for its own purposes. Mr Elali had cooperated with the investigation and provided a response. The looming criminal charges did not compromise Mr Elali’s responses to Sydney Trains: for example he did not withhold any responses to Sydney Trains to maintain his privilege against incrimination. Sydney Trains was satisfied that the misconduct had occurred and specifically that Mr Elali had kissed the student on the neck. It is by no means certain that if the appeal to the District Court was successful that Mr Elali would have kept his job, or that Sydney Trains would have changed its view about the facts.
[140] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[141] Overall I find that the dismissal of Mr Elali was harsh and unreasonable and therefore unfair Mr Elali was unfairly dismissed for the purposes of s.385 of the FW Act.
[142] Mr Elali’s conduct in hugging the student was unacceptable and Sydney Trains was entitled, if not required, to take action to prevent such behaviour occurring again.
[143] However it was, for the reasons described above, unreasonable for Sydney Trains to dismiss Mr Elali in the circumstances. Sydney Trains had other reasonable actions available to it to address Mr Elali’s inappropriate action in hugging the child that did not involve dismissing him.
Remedy - reinstatement
[144] Being satisfied that Mr Elali made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Mr Elali’s reinstatement, or the payment of compensation to Mr Elali, subject to the FW Act.
[145] The Commission must perform its functions and exercise its power in a manner that is fair and just and promotes harmonious and co-operative workplace relations (per s.577 of the FW Act) and must take into account the objects of the Act, equity, good conscience and the merits of the matter. The power to order reinstatement is “a very drastic one”. As the High Court observed in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 548 [28], such an order is an intrusion into the personal relationship of employer and employee, and an intrusion that is “deliberate and envisioned by the Act.”
[146] As the Full Court in Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190, [1997] IRCA 15 observed, the employment relationship is capable of withstanding some friction and doubts.
“Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.”
[147] Sydney Trains led evidence from the Chief Health Officer at Transport for NSW, Dr Casolin. Dr Casolin expressed concern that Mr Elali might not be fit to return to work. I do not see that this is a matter that is relevant to the question of whether Sydney Trains should be ordered to reinstate Mr Elali. Different considerations arise if it was said or alleged that Mr Elali was permanently unfit, but the mere possibility that Mr Elali might not be fit to immediately return to work is not a basis to find that reinstatement is not appropriate.
[148] Taking all these matters into account I find that it would be appropriate to order that Mr Elali be reinstated to his former position pursuant to s.391 of the FW Act. On the evidence Mr Elali was an exemplary employee. If one accepts, as I do, that Mr Elali hugged but did not kiss the student, then there is no reason why he cannot return to the workplace.
[149] In his closing submission Mr Elali’s counsel made the following submission:
“We say that whilst reinstatement would potentially involve him being reinstated to his position at [name of station withheld], we'd accept that's a position that may create some awkwardness, shall we say, to put it mildly, for both Mr Elali and the student, that there was clearly interaction at that station between them on a regular basis regardless of the nature of that interaction, such that we would accept it would be open to Sydney Trains to reinstate him to a position other than at [that] station.”
[150] There is some force in this submission. I agree that it would be preferable for Mr Elali to return to a different railway station.
[151] Section 391(1)(b) allows for an order that Mr Elali be reinstated “to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.”
[152] I am inclined to make an order under s.391(1)(a) that Mr Elali return to his position at the same railway station but am also prepared to make an order under s.391(1)(b) that Mr Elali be reinstated to the same level but at a different station.
[153] It does not seem possible to finalise the specific terms of the reinstatement order without further input from the parties. To this end I will make directions requiring the parties to confer and to provide draft orders (either agreed or contested) within 14 days.
[154] Further, it is appropriate to make an order that maintains the continuity of Mr Elali’s employment (per s.391(2)(a)) and to make an order that Sydney Trains pay to Mr Elali an amount for the remuneration lost by Mr Elali because of the dismissal (per s.391(3)).
[155] In making an order under s.391(3) I am required by s.391(4) to consider:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
[156] Mr Elali was on unpaid leave from early December 2021 until his dismissal on 28 January 2022. Section 391(3) allows for an order that Sydney Trains pay an amount “for the remuneration lost, or likely to have been lost, by the person because of the dismissal.” In my view there is no power to order that Sydney Trains pay Mr Elali for his period of unpaid leave prior to the dismissal, even if I was inclined to do so.
[157] In December 2021, after Mr Elali had been convicted and sentenced by the Local Court, Mr Elali asked that his employment continue on unpaid leave pending the outcome of the appeal to the District Court. For the reasons provided earlier, it was reasonable for Sydney Trains to refuse Mr Elali’s request.
[158] Sadly, none of the parties in this long-running story has won.
[159] The CCTV footage did not ultimately support the account of the student who honestly but mistakenly believed that Mr Elali kissed her on the neck - neither in the District Court nor in the Commission. Mr Elali’s career and family life has been in turmoil since he was first charged by the police and he cannot have that time over with his wife, young children and his wider family. Sydney Trains’ decision to dismiss a worker convicted in the criminal courts of a serious child-related offence has been overturned.
[160] In these circumstances it is appropriate that I make an order under s.391(3) of the FW Act that Sydney Trains pay to Mr Elali an amount for part but not all of the remuneration lost because of the dismissal. I propose to make an order that Sydney Trains pay to Mr Elali an amount representing his lost remuneration since 31 May 2022, being the date of the decision by the District Court to quash the conviction from the Local Court. The amount payable is to be reduced by any remuneration earned by Mr Elali since 31 May 2022.
[161] In order to prepare final orders in this matter I will separately make Directions to the follow effect:
(a) the parties must confer on an appropriate form of order under s.391(1) that Mr Elali be reinstated to either his former position or another position on terms and conditions no less favourable than those on which Mr Elali was employed immediately before his dismissal, considering the concerns raised about Mr Elali returning to his original railway station;
(b) the parties must also confer on the calculation of the amount to be ordered under s.391(3) of lost remuneration since 31 May 2022 less any remuneration earned by Mr Elali since 31 May 2022;
(c) if the form of the above orders is agreed, the parties must file a copy of those orders by no later than 4:00pm on 28 October 2022; and
(d) if any part of the above orders is not agreed by Friday 28 October 2022, each party is to file their proposed form of orders by no later than 4:00pm on Monday 31 October 2022.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR746826>
Appearances:
Mr B Miles of Counsel instructed by Mr G Spedding of The Law Man Solicitors
Mr M Seck of Counsel instructed by Mr A Yahl of Bartier Perry Pty Ltd
Hearing details:
2022.
Sydney.
July 28, August 3.
1 The transcript provided was a literal translation of the interview and contained many “ums” and “likes” that have been removed for readability.