[2019] FWC 182 [Note: An appeal pursuant to s.604 (C2019/4210) was lodged against this decision - refer to Full Bench decision dated 19 February 2020 [[2020] FWCFB 884] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Subeg Singh
v
Sydney Trains
(U2016/12864)

DEPUTY PRESIDENT SAMS

SYDNEY, 21 JUNE 2019

Application for an unfair dismissal remedy – termination of employment – allegations of serious safety breaches by long serving Team Leader of Sydney Trains – two related incidents in 2015 on rail tracks at Allawah and Kogarah – five Team members involved – all disciplined – two dismissed – three investigations and disciplinary investigation – Union involvement and representation – whether incident involved a ‘near miss’ – applicant denied any responsibility or culpability – investigations reveal systemic failures and individual breaches of Network Rules on Safety and Code of Conduct – CCTV footage - Commission inspection of incident locations – conflicting evidence – applicant’s evidence inconsistent with CCTV footage – applicant’s evidence ‘cherry picks’ investigation reports – investigation reports and findings preferred – applicant in breach of Network Rules, Code of Conduct and role of Team Leader and Protection Officer – applicant only seeks reinstatement to former role – no contrition or acceptance of his safety failings incompatible to reinstatement – applicant’s long and unblemished service taken into account, but does not outweigh the seriousness of conduct – valid reason – criticism of length of investigation and suspension period – dismissal not harsh, unjust or unreasonable – application dismissed.

TABLE OF CONTENTS

Section

Subsection

Para No

INTRODUCTION

 

[1]

 

Reasons for dismissal – the allegations

[7]

THE EVIDENCE

 

[9]

For Sydney Trains

Mr Andrew Lynn

Cross examination

[9]

[18]

 

Mr Benjamin Bonatesta

Cross examination

Reexamination

[36]

[42]

[46]

 

Mr Christopher Polias

Mr Polias’ reply to Mr Singh’s evidence

Cross examination

[47]

[55]

[68]

 

Mr Paul Bugeja

The CCTV footage of the Kogarah incident

Reply statement

Cross examination

Reexamination

[91]

[93]

[112]

[119]

[155]

 

Mr Scott Webster

[156]

 

Ms Amber Sharp

[158]

Mr Singh’s evidence

 

[159]

 

The work on Saturday, 1 August 2015

[161]

 

The Allawah Incident

[165]

 

The Kogarah Incident

[170]

 

Cross examination

[181]

SUBMISSIONS

For the applicant

Mr Bonatesta

Mr Lynn

Mr Polias

Mr Bugeja

Allegation 1

Allegation 2

Allegations 3 and 4

Allegation 5

[226]

[229]

[230]

[232]

[235]

[243]

[247]

[248]

[249]

 

For Sydney Trains

[260]

 

In reply

[289]

CONSIDERATION

Statutory provisions and relevant authorities

[301]

 

The allegations

[306]

 

The evidence

[316]

 

Was Mr Singh’s dismissal ‘harsh, unjust or unreasonable’?

[322]

 

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 others) (s 387(a))

[324]

 

Whether the person was notified of the reason (s 387(b))

[333]

 

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s 387)(c))

[334]

 

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[335]

 

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[336]

 

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 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 (ss 387(f) and (g))

[337]

 

Any other matters (s 387(h))

[342]

GLOSSARY OF TERMS

ASB – Absolute Signal Blocking

ATWS – Automatic Track Warning System

Bridge – Lily Street Bridge

CCTV – Closed Circuit Television

Cess – area between the boundary fence and track

Down Cess – areas adjacent to down lines

Down Illawarra Local – track from Sydney to Hurstville

Down Illawarra Main – track from Sydney to Wollongong

DRP – Disciplinary Review Panel

Four foot – area between two rails of tracks

HRCLR – Hazardous Rail Corridor Locations Register (the Register)

Level 3 Report – Highest level of systemic causation investigation where there was a potential to cause serious injury/damage

Level 5 Report – usually the first formal investigation into an incident by the Line Manager

LOW – Lookout Working

LPA – Local Possession Authority

LTA – less than adequate behaviours

MSD – minimum sight distance

MWT – minimum warning time

NCO – Network Controller

NGE200 – Walking in the Danger Zone

NPR711 – Role and duties of Lookouts

NWT300 – Planning work in rail corridors

NWT310 – Lookout working

ONRSR – Office of National Rail Safety Regulator

PD – Position Description

PO – Protection Officer

RSW – Rail Safety Worker authorisations

SEQR – Safety Environment Quality and Risk (Sydney Trains)

Six foot – area between two tracks

SMS – Safety Management Systems

SWMS – Safe Work Method Statement

TOA – Track Occupancy Authority

TWA – Track Working Authority

Up Cess – area adjacent to Up lines

Up Illawarra Local – track from Hurstville to Sydney

Up Illawarra Main – track from Wollongong to Sydney

VMC – Visual Media Centre

WCIU – Workplace Conduct Investigation Unit

WGL – Work Group Leader

WHS – Work Health and Safety

WPP – Worksite Protection Planning Diagrams

DRAMATIS PERSONAE

Keith AITCHISON – Network Rules Specialist

Benjamin BONATESTA – Train Driver

Paul BUGEJA – General Manager, Network Maintenance

Mohammad CHAWDHURY – PO4

Jocelyn GUY – Inspector, ONRSR

Boris IVANOVSKI – PO1

Brad KERR – Disciplinary Investigator

Daniel KINDER – Civil Team Leader, Sydenham

Ron KIRK – Team Leader, Sutherland

Cane KOLEVSKI –PO4

Andrew LYNN - Supervisor

Marion O’CONNELL – Service Manager

Jonathon PARKER – Union official – attended ONRSR interview on 19 or 20 August 2015

Christopher POLIAS – Rail Safety Coach

Ron QUIRK – Line Manager

Amber SHARP – Solicitor, Bartier Perry

Subeg SINGH – Team Leader PO4

Kerry WALKER – Level 5 Investigator

Scott WEBSTER – SEQR Investigator

Tom WILLMOT – Team Manager – Level 5 Investigator

INTRODUCTION

[1] Mr Subeg Singh had been employed by Sydney Trains, or its predecessor entities for 34 years from 9 June 1982, until he was dismissed on 30 November 2016. At the time of his dismissal, Mr Singh was 76 years old and was employed as a Team Leader, Track and Structures, based at Sutherland, New South Wales, under the Sydney Trains Enterprise Agreement 2014 (the ‘Agreement’).

[2] Shortly stated, Mr Singh was dismissed for various breaches of the Transport for NSW Code of Conduct arising from his alleged involvement in two separate serious safety incidents on 1 August 2015 on the rail tracks at Kogarah and Allawah. It will be immediately apparent that the period of time from the incidents for which Mr Singh was dismissed until his actual dismissal was 16 months. During this period, he remained suspended on pay. I shall say more about this unsatisfactory delay in dealing with this matter later in this decision. Nevertheless, it is accepted there were a number of internal investigations by Sydney Trains (notably, the Level 5 and Level 3 Investigations), a National Rail Safety Regulator Investigation, internal disciplinary processes according to the Agreement and a final review of the dismissal decision by Transport for New South Wales (30 November 2016). All of these processes involve strict timelines in order to ensure that a dismissed employee is afforded procedural fairness. I note that up until the point of the final review of Transport for New South Wales in October/November 2016, it appears Mr Singh was advised and represented by the Rail, Tram and Bus Union (the ‘Union’).

[3] On 24 October 2016, Mr Singh filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks orders of the Fair Work Commission (the ‘Commission’), for an unfair dismissal remedy, pursuant to s 392 of the Act; namely reinstatement and lost remuneration. It will be seen that the unfair dismissal application was actually filed before the dismissal decision was confirmed by Transport for New South Wales and his dismissal had taken effect. However, by the time the application came before a Fair Work Commission Conciliator on 14 December 2016, Mr Singh had been dismissed. Sydney Trains took no issue with the application being accepted, notwithstanding the obvious filing defect. The application was referred to me for hearing following the unsuccessful conciliation.

[4] On 23 December 2016, in accordance with my usual practice, I issued directions for a hearing of the merits of the application on 20 and 21 February 2017 and conducted a face-to-face conciliation conference on 10 January 2017. At this conference it was apparent that Mr Singh was not interested in any monetary settlement. The only remedy he sought, and which he has consistently maintained, is to be reinstated to his former position, with the payment of lost remuneration. Similarly, Mr Singh has consistently insisted that he had not breached the Code of Conduct, he was not responsible, in any way, for the two incidents on 1 August 2015 and given his age, the unlikelihood of him finding alternative employment and his length of unblemished service, his dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s 387 of the Act.

[5] Regrettably, Mr Singh’s application was not heard until 9 April 2018 and a decision was reserved on 20 August 2018. This delay was due to a number of factors, including a change to Mr Singh’s first legal representative, changes in his subsequent legal representatives, and offers to settle the matter which were not accepted. This resulted in preliminary proceedings and a decision as to whether a binding settlement had been made; see: Singh v Sydney Trains [2017] FWC 4015. An appeal of this decision was upheld and the matter remitted to me for hearing; see: Singh v Sydney Trains [2017] FWCFB 4562. There were also a number of disputed Notices to Produce and Notices to Attend proceedings.

[6] The merits arbitration was finally conducted over eight days, including a site inspection on 6 April 2018. Mr O Fagir, of Counsel appeared for Mr Singh and Mr M Seck, of Counsel appeared with Ms A Sharp, Solicitor (Bartier Perry) for Sydney Trains. Both parties were granted permission to be represented by lawyers, pursuant to s 596 of the Act. I am bound to record my deep appreciation to both Counsel for the incredible preparation involved in understanding and presenting complex, detailed technical material in the context of the statutory provisions the Commission is required to apply in this case. If ever there was case which demonstrated the invaluable assistance the Commission receives from competent, focused and well-prepared lawyers, this must be it.

Reasons for dismissal – the allegations

[7] It is useful at this juncture, to set out the details of the allegations against Mr Singh as set out in the ‘Show Cause’ letter of 5 August 2016 which reads as follows:

‘ Dear Mr Singh,

The Disciplinary Investigation into the allegation that you have committed a breach of the Code of Conduct has now been finalized. The allegation, which is substantiated, and of which full particulars have previously been provided to you, is as follows:

Allegation

On 1 August 2015, between Mortdale and Wolli Creek, in your capacity as Team Leader and nominated Lookout for a Work Group assigned to complete planned track measurements on the DN Illawarra Local and the Up Illawarra Local, you failed to follow safety policies, procedures and guidelines that apply to your work including failing to carry out your duties safely and reasonably and adequately assess and plan. The particulars of the allegations are:

Planning and Carrying Out Work

  During the course of planning and carrying about the work, you utilized the ‘Lookout Working’ method of protection, in locations that did not have sufficient Minimum Warning Time (MWT) and or Minimum Sighting Distance (MSD) to carry out the work.

Incident at Allawah

  At or around 10.00am, at approximately 13.800 km on the city end of Allawah Station, whilst taking track measurements on Up and Down Illawarra Local lines, you ‘missed’ a warning light and failed to provide adequate warning to the Work Group to ‘jump out of the way’ of the approaching train.

  Subsequently, you failed to stop work and implement appropriate control measures.

  You failed to compile or make any form of formal incident report of this incident at the time these incidents occurred, in accordance with the Network Rules.

Incident at Kogarah

  At approximately 11.46.23hrs, while the Work Group were near the country end of Kogarah station, you failed to take care of the health and safety of yourself and others in your Work Group by allowing work to continue, despite the lack of MWT and MSD, leading to Work Group Leader Mr Cane Kolevski being forced to run across the Down Illawarra Line reaching a safe place at 11.46.26hr, approximately two seconds before train service 900 passed by the spot where Mr Kolevski was working, resulting in a near miss.

Having considered the evidence Sydney Trains is satisfied that you engaged in the conduct as outlined in the allegation that is the subject of this matter. By engaging in this conduct you caused serious and imminent risk to the health and safety of yourself and your colleagues.

My preliminary view of the appropriate disciplinary outcome for you is as follows:

Dismissal

Management action will be taken to permanently withdraw all your Rail Safety Worker (RSW) authorisations and you will not be eligible for re-instatement of these RSW authorisations.

Before coming to a final decision in relation to the disciplinary outcome, I am giving you the opportunity to make a submission to me within fourteen (14) days in regard to the proposed outcome. Any such submission should include any information that you would like to have taken into account before the final outcome is determined, and should be sent directly to my Sydney Trains email address (email address provided).

A final decision in relation to the disciplinary outcome will be made generally within fourteen (14) days of the receipt of any submission you should choose to make.’

THE EVIDENCE

[8] The following persons provided statement and/or oral evidence in the proceedings:

  Mr Andrew Lynn – Team Member PO4;

  Mr Benjamin Bonatesta – Train Driver;

  Mr Christopher Polias – Rail Safety Coach;

  Mr Paul Bugeja - General Manager, Network Maintenance;

  Mr Scott Webster - SEQR Investigator;

  Ms Amber Sharp – Solicitor, Bartier Perry; and

  Mr Subeg Singh – Team Leader PO4.

For Sydney Trains

Mr Andrew Lynn

[9] Mr Lynn has worked for Sydney Trains since 2008. He was one of the most junior of the five member Team who were taking track measurements on the Up and Down Illawarra lines on 1 August 2015. Contrary to Mr Singh’s statement, Mr Lynn said:

(a) he was not giving orders to Mr Singh throughout the day. Rather, as Mr Singh was quite slow, he was simply reminding him of his duties;

(b) he was one of the two people nominated as Supervisor on the shift. His role was Technical Supervisor. In that role, he checked measurements and recorded the information. As Technical Supervisor, he was not responsible for completing the WPP. He was not the Protection Officer and not the nominated Lookout;

(c) he had known Mr Singh for some time and he had been his Team Leader when he was at Sutherland. As the senior person, Mr Singh was the Team Leader that day. Team Leaders are the leaders of the group and can ‘pull the pin’ at any time if they do not agree with the way things are being done, or believe work is unsafe;

(d) local knowledge is important. However, Mr Singh had been based at Sydenham for many years and as Sutherland and Sydenham are in the same area, any track change updates are sent to everyone at Sydenham and Sutherland;

(e) as Protection Officer 4 (‘PO4’), Mr Singh would know about safe working and any updates; and

(f) he did not alter the Work Protection Plan, as alleged by Mr Singh.

[10] Mr Lynn denied Mr Singh had said to Mr Chawdhury ‘Have you checked the Hazardous Rail Corridor Locations Register (HRCLR)’ and could not recall Mr Singh saying ‘after each measurement the work group should walk on the Up Cess till the next measurement spot. The measurements shouldn’t take place until the protection is in place.’ Mr Lynn denied that Mr Singh had given him detailed instructions about stopping the role of Lookout at different times and on different parts of the track, particularly as Mr Singh had been difficult to understand. Mr Lynn rejected Mr Singh’s evidence that he had told him to be the ‘Inner Lookout’. His role was to take measurements. You cannot do both roles.

[11] Mr Lynn also rejected Mr Singh’s claim that the planning and supervision of work was the responsibility of the PO and the Work Leader. He claimed this is not correct , and that the primary responsibility of the PO is worksite protection and that of Work Leader is planning the job. He denied he was in the best position to determine the appropriate safe working method. He was the least experienced. Mr Singh was the most senior and experienced person and had worked at Sydneham for many years.

[12] In respect to the Allawah incident, Mr Lynn denied he had said to Mr Singh or anyone else, in the pre-job briefing, that he did not have the designs for the Down Local and Up Main. The question of taking measurements on the Up Main only arose when they were on the tracks.

[13] In relation to the work undertaken between the Down Illawarra Local and the Up Illawarra Main, Mr Lynn stated that:

(a) The two measurers, Mr Kolevski and Mr Ivanovski, noticed that there was a narrow clearance between the Down Local and Up Main at the City end of Allawah station. They were aware of this narrow clearance at this point because of their local knowledge. He did not have the same local knowledge, as he had only been at Sydenham for six weeks.

(b) He did not direct the measurers to take the measurement between the Down Local and the Up Main. It was Mr Kolevski and Mr Ivanovski who suggested taking the measurement. They were both WGLs at the time of the incident and more senior than him.

(c) He knew that if there was a narrow clearance, it was important for the work group to check the measurement because of the serious safety issues which can result from a narrow clearance between tracks.

(d) The issue with a narrow clearance is that there may be a situation where for some reason, as a result of a geometric shift, a track may go down or become lower than it is supposed to be. This can mean that if one track is tipping, the tops of the trains may touch as they go past one another. This situation must be avoided.

(e) For this reason, Mr Kolevski and Mr Ivanovski decided to take a quick measurement of the distance between the Down Illawarra local track and the Up Illawarra Main to ensure there was no risk of trains colliding, even though it was not a planned measurement on the day. The measurement was to take less than a few minutes. He knew this based on his experience.

[14] Mr Lynn claimed that the only time he told Mr Singh to take up his Lookout position was when he came over to him to say something about the measurement and not having the designs. He said nothing about safety and did not tell him to stop work (as claimed by Mr Singh). Mr Lynn told him to get back to his Lookout post, because the crew was left vulnerable in an unsafe place. Mr Lynn believed that if he had been so concerned about safety, he should not have walked over to him, as Mr Singh was supposed to be watching the warning light, and had a sound horn and whistle which could have been used. There was absolutely no reason to leave his post as Up Local Lookout. Mr Lynn said he could not recall anyone jumping out of the way of the train on the Up Local. However, they were all very startled when it passed.

[15] Mr Lynn denied that after the incident, Mr Singh had instructed him not to do any measurements on the Down Local or Up Main again. Mr Lynn recalled the measurers ‘getting stuck into Mr Singh’ about what had happened (him missing the warning light). Mr Lynn said he asked Mr Singh twice to report the incident, but he did not. Mr Lynn accepted that there was a general consensus in the Team to return to work. He did not make that decision or direct anyone to do so.

[16] As to the Kogarah incident, Mr Lynn said that no one made any agreement (as contended by Mr Singh) (para 75 Singh statement). Mr Lynn said that after the Allawah incident the rest of the Team agreed that they needed to keep an eye out for Mr Singh, as he missed the warning light and he is very slow. Mr Lynn added that having worked with him in the past, Mr Singh was hard to work with, because he could not work ‘on the tools’ and he could not take, or record measurements. The Lookout role was really all he could do. Mr Lynn rejected Mr Singh’s commentary on the photos he provided. He believed Mr Singh’s photos do not support what he claims they do.

[17] Mr Lynn was concerned that if Mr Singh was reinstated, he would not feel safe working with him as a Lookout, and he would not work on a shift with him.

[18] In cross examination, Mr Lynn agreed he had been reprimanded in 2016 for his role in the 1 August 2015 incident after an investigation and a disciplinary process in which he had been represented by the Union. He had no complaint about the Union’s representation of him, which included a response letter sent by the Union to Sydney Trains in 2016.

[19] Mr Lynn accepted that the safety rules and procedures are very important. He understood that if any employee observes something they consider unsafe, it should be reported and he has always done so throughout his employment. Mr Lynn said that while he had not ‘officially’ reported any breach of safety or the Network Rules by Mr Singh prior to 1 August 2015, he had mentioned to Mr Ron Quirk, his Line Manager, that Mr Singh was ‘a bit slow’ and ‘struggled to keep up sometimes’.

[20] Mr Lynn agreed he did not intervene to stop unsafe work practices, or raise any concerns with his co-workers at Kogarah on 1 August 2015. He had later reported a ‘near miss’, but made no other report that day. Similarly, Mr Lynn agreed he did not intervene to stop any unsafe behaviour or report any such behaviour at Allawah. However, they did stop work after the incident happened (after the train had passed) when the paperwork was not right. As far as he and the Team were concerned, the work at Allawah was carried out in accordance with the safety rules.

[21] In respect to the Kogarah incident, Mr Lynn now accepts that, in hindsight, there were ‘appalling breaches of safety’ (‘things went wrong on that day’). Mr Lynn agreed that for most or all of the time, Mr Singh was in his view at the country end of Kogarah Station. He was probably 50 metres away and moving around. He could see the warning lights and Mr Singh walked towards the work group. The concern at Kogarah was the train on the other track, not the track Mr Singh was on. He agreed that if he had seen Mr Singh doing something wrong, he should have said something, but he did not. Up to the point of the train coming through, he had understood that everything was going according to the safety rules.

[22] Mr Lynn accepted that as he had limited experience in Sydenham, and as he was based at Sutherland, he was not as familiar with local knowledge. Mr Lynn was unaware of whether Mr Singh had been involved in planning the work that day. Mr Lynn did not consider himself to be the Supervisor that day, despite his name being recorded as such on the WPP (see para [9(b)] above) where he agreed he and another were the Supervisors. He explained that he was the ‘Supervisor of the paperwork, of the forms, of the technical information’.

[23] Mr Lynn conceded that there is no position classification anywhere for a Technical Supervisor, or any document which refers to this descriptor. He denied that this was the first occasion (in his witness statement) that he had mentioned he was a Technical Supervisor. He agreed it was not usual to have two Supervisors in a five-man Team and that it may create some difficulties. Mr Lynn acknowledged he did not object at the time to being identified as the Supervisor. He recalled that Mr Kinder had told him on the day that he was doing the paperwork, Mr Chawdhury was the Protection Officer and Mr Kolevski was the Supervisor. Mr Lynn believed he had been consistent about this throughout the investigation and disciplinary process. However, he could not recall who he may have told during these processes, as it was two and a half years ago.

[24] Mr Lynn said that the Team agreed to walk the track from Hurstville to Wolli Creek, despite Mr Chawdhury suggesting the reverse direction. He denied he was asked and refused because he was the Supervisor. Nobody disagreed. He could not recall if Mr Singh had said they should walk from Wolli Creek to Hurstville, despite taking 20 to 30 minutes longer if they walked in the other direction.

[25] Mr Lynn said that as he was not the PO on the day, he was not responsible for:

  planning the work;

  completing the WPP; or

  checking the HRCLR.

Mr Kinder, as Team Leader would have been expected to have planned the work and checked the Register, but he could not be sure if he did on that day. Mr Lynn acknowledged he did not ask Mr Chawdhury, as to whether he had checked the HRCLR. As a result of this incident a new procedure had been put in place requiring the sighting and signing of the Register by the Supervisor. At the time, he had faith in Mr Chawdhury as the PO4 who had an extensive knowledge of the area and was highly qualified. He had no reason to question Mr Chawdhury’s work. Mr Lynn had not acknowledged making any planning mistake or that he should have checked the Register - it was not his responsibility. He agreed he had seen and signed the WPP on 1 August 2015, but did not raise any concerns as to using Lookouts on the stretch, as the other Team members knew what they were doing.

[26] Mr Lynn was referred to operating procedure 06.30 Manage Risks in the Working Environment (page 263). Although he had read it some time ago, he did not understand that it was a Supervisor’s obligation to check the Register before work was carried out on ‘Lookout Working’. Mr Lynn did not accept there was a ‘rule’ which stated a Lookout cannot speak to anyone while they are engaging in Lookout work. He agreed communication within the Team is very important.

[27] Mr Lynn said that the measurements and associated protections at Allawah were to be between Up and Down Locals. Mr Singh was Lookout on the Up Local and Mr Chawdhury on the Down Local. There was no Lookout on the Up Main. He reiterated that Mr Kolevski and Mr Ivanovski had told him they decided to take a quick measurement between the Down Local and Up Main. He had not tried to stop them, as it would only take a few minutes. He claimed that if it had taken longer, there would be a change to the protections. However, he conceded that however long it took, there should have been Up Main protection. Someone had to look at Up Main and it was probably him. In hindsight, it should not have been done in this way.

[28] It was Mr Lynn’s evidence, that if a Team member is suitably qualified as a Lookout they can be utilised on site, even if they are not specified as Lookout for the job. Nonetheless, Mr Lynn acknowledged that taking a measurement on the Up Main without the protection plan in place, was ‘quite unsafe’. He had not intervened to stop them and had let them go ahead, knowing it to be unsafe. He had admitted his mistake and had been criticised and disciplined for his actions. However, Mr Lynn said all the Team, including Mr Singh, knew this was unsafe. Mr Lynn had criticised Mr Singh for not using his horn or whistle. This was the best way to alert the work group; notwithstanding there is no policy or procedure which requires a Lookout to do so.

[29] Mr Lynn agreed that neither of the two employees taking the measurements would have been standing on the Up Local – one would be on the Down Local and the other on Up Main. He speculated about someone wandering on the Up Local, as he believed the incident occurred at that same place. Mr Lynn was referred to his statement in which he said:

‘It's possible that while Mr Singh was talking to me about measurements, one of the measurers stood up, walked onto the Up Local and therefore had to jump out of the way.’

[30] Mr Lynn claimed Mr Ivanovski and Mr Kolevski were startled and jumped back towards the Down Local when the train came through. In his opinion, Mr Ivanovski was about ‘to walk in front of the train’. Mr Lynn denied this was a different story to that which he set out in his statement, and denied ‘making it up’. Mr Lynn added that the measurement was finished when the train came round the bend, because they noticed the warning light had gone out. They had been walking towards the safe place (Cess) – he and Mr Ivanovski were leading the others, who were a couple of metres behind. His statement claimed they should have been on the Up Cess, not the Down Local.

[31] Mr Lynn was questioned about his statement comment: ‘I cannot recall if anyone jumped out of the way of the train.’ He claims they were all ‘very startled’ when the train came past on the Up Local. He agreed and had admitted that the incident should have been reported, but it was not. He had told Sydney Trains he wasn’t ‘100% sure’, but in hindsight, he now believes it was a ‘near miss’. When Mr Lynn was shown his response in the letter from the Union to Sydney Trains explaining his actions, he was asked about the following quote: ‘At no time did Mr Lynn think that the incident was a ‘near miss’’. Mr Lynn denied having seen this letter and then said he could not remember it, as it was two and a half years ago, and he had received many letters in the meantime. He qualified his acknowledgement of what he had said as being his belief at the time (that there was no ‘near miss’, although someone jumped out of the way train it would be a ‘near miss’). He had wanted to report it and admitted he should have. He elaborated:

‘At the time I knew it was an incident; I wasn't sure.  Usually when a near miss happens the train driver reports it and a rail incident commander comes out and speaks to the work group and goes through a procedure with the work group.  That never happened.  The work group spoke about what had taken place and collectively we - we were waiting for the phone call but it never came, and we kept working.  But that's where we should have - I should have reported.  I did ask Subeg to - twice I said look, we should ring up and report this to our colleagues, but it didn't happen.

I think the reason is because we thought we were going to get away with it.  That is the real reason.  Not because of - basically we didn't want to get in trouble.  That's why it didn't get reported.’ (my emphasis)

[32] Mr Lynn said that after the train went through, Mr Chawdhury was contacted by the Signal Box and had been told that the all clear hand signal (to the driver) was not fast enough. They were not told to stop work. I then asked Mr Lynn:

‘What did Mr Singh say to you when you asked him to report the incident?’

and he replied:

‘He said no. He just said no, no, we – I just remember him saying no. I remember I asked him twice to – I’ve asked him again; I said look, we should report this, and he said no, no, we don’t have (sic); the signal box, it’s not a near miss, or something like that.’

[33] Mr Lynn claimed that he had admitted to many people, many times, including to Mr Bugeja, to not having reported a ‘near miss’, when he should have. Mr Lynn could not remember if Mr Singh had said the area was unsafe or that he had asked Mr Singh to report the incident. Mr Singh has said something like – ‘let’s move along, let’s keep going’ – but he did not say anything was unsafe.

[34] In respect to planning the work, Mr Lynn said Mr Singh was the Team Leader and the most senior person on the job. Mr Lynn denied criticising Mr Singh in this respect and accepted Mr Singh was Team Leader at Sutherland, not at Sydenham that day. However, a Team Leader should be involved in, and is expected to be involved in planning the work, wherever they are located.

[35] In respect to the Kogarah incident, Mr Lynn could not recall if he and Mr Singh had agreed that if he moved, he would keep a Lookout. He accepted the Network Rules require that if a Lookout relocates the Team, they must either move the Team to a safe place, or have someone else keep Lookout. He believed that at Kogarah, everyone was keeping an eye on the lights and making sure that someone was doing so at any given time. This was standard practice.

Mr Benjamin Bonatesta

[36] Mr Bonatesta was the driver of the train on run 613E which passed through Allawah at around 80km an hour on the Up Illawarra Local at approximately 10.02am on 1 August, 2015.

[37] Mr Bonatesta refuted Mr Singh’s claim that the Team was on the Down Local. He denied that Mr Singh had acknowledged the train horn, by raising his right arm when it went by. He said the Team was in the ‘six foot’ after one of them ran off the track he was on. Mr Singh’s hands went up at the same time as he blew the train whistle (horn). He had done so because he saw Mr Singh leave the ‘four foot’ of the Up Local. Mr Bonatesta denied Mr Singh’s claim that ‘no one jumped out of the way of the train.’ Mr Bonatesta was referred to a photo (SS04) and said the incident did not happen close to, or under the Lily Street Bridge. It was further up the track toward the city near two overhead gantries. It was wrong to suggest the workers were on the Down Local. One was running off the Up Local and the others were in the ‘six foot’. He could not recall anyone on the Down Local, although his focus was on the worker he thought he might hit (on the Up Local). Mr Bonatesta annexed a copy of his Stopping Pattern Report for that day. He wrote on the document shortly after calling the Signaller – ‘Track worker on my line Near Miss!!!

[38] Mr Bonatesta gave evidence of the call he made to the Signaler which was recorded. The transcript of the audio reads:

‘Sydenham: 6 1 3 Echo Sydenham receiving.

Driver: 6 1 3 Echo. Sydenham this is 6 1 3 Echo.

Sydenham: Yes mate.

Driver: Yeah mate. I’ve just had a pretty close call between Allawah and Carlton there.

Sydenham: Between Allawah and Carlton?

Driver: Yeah. There’s some track workers and as I come (sic) round the corner there was a guy right on my track.

Sydenham: Yep.

Driver: And, um, you know, first thing I saw was him jumping out of the way. I went into full service and pulled the whistle but he was out of the way.

Sydenham: OK.

Driver: Maybe that Lookout needs to move to a better position or something. It’s pretty bad.

Sydenham: Yeah OK. All right (sic). Um, are you OK to continue?

Driver: To be honest I’m a little shook up actually. Yeah.

Sydenham: OK. Are you considering it a near miss?

Driver: Um, I don’t know if I’d consider it a near miss. He was well out of the way.

Sydenham: Yeah.

Driver: 500 metres.

Sydenham: Yeah.

Driver: Just give (sic) me a bit of a scare that’s all.

Sydenham: Bit of a startle yeah. OK then. All right (sic), I’ll, um, I’ll, I’ve got a list of people working on track today so I’ll find out who it is and I’ll advise them to move their Lookout.

Driver: Yeah, yeah.

Sydenham: OK.

Driver: Good idea. Thanks mate.

Sydenham: All right (sic). Thank you.

Driver: 6 1 3 Echo out.

Sydenham: Sydenham out.’

[39] Mr Bonatesta said it was clear from listening to the audio, that his voice was shaky, as he was very shaken up. He had repeated ‘613 Echo’ unnecessarily, which demonstrated he was shaken. Mr Bonatesta made the following comments on the radio call:

‘(a) when I said “there was a guy right on my track”, the image I have is of a worker with his body side on to me as I was travelling on the Up Local. The worker had his left foot planted on the outside of the right hand rail of the Up Local 4 foot and his right foot in mid air behind him as he left the 4 foot in a running fashion in the direction of the 6ft. He was running and trying to get people out of the way in a hurry. I saw he had something in his hand. Some sort of pole. In my mind, the other workers on the track were waving him over at the same time. I didn’t see the guys in the 6ft until the guy from my track joined them. I recall seeing the worker with one foot on the 4-foot and one foot on the 6-foot. As soon as I saw that I thought he’s only just getting out of the 4 foot.

(b) when I said “first thing I saw was him jumping out of the way”, I meant how I describe it above;

(c) when I said “I went into full service…”, that meant that I applied maximum brake application. I did breaks first and then whistle. You think about what is going to help the situation more quickly. I saw the guy leaving my track so applied maximum brakes;

(d) when I said “Maybe that Lookout needs to move to a better position or something. It’s pretty bad” I came around the corner at 80 km and came right on top of them, it all happened so quick.

14. In reviewing the transcript, I can see that I said:

(a) “I’ve just had a pretty close call …”;

(b) “He was well out of the way

(c) “That the worker was 500 metres away”.’

[40] Mr Bonatesta further described his feelings that day:

  his head was racing as he thought he had almost killed someone. He was very shaken up;

  thinking back, he could not possibly have been coming around a blind corner and the incident happened 500 metres further on;

  in retrospect, he should have relinquished his shift at Central; and

  it was definitely an incident that was ‘too close; too close to someone dying’.

[41] Concluding, Mr Bonatesta said that he regularly saw workers in danger zones – it was commonplace. He had called the Signaller at the time because he believed that the Team were in a ‘bad location’ and he had almost hit someone.

[42] In cross examination, Mr Bonatesta was asked about his understanding of the procedure when a Driver is involved in a ‘near miss’. The incident must be reported immediately to the Network Controller (‘NCO’), either the Signaller or the Trains Controller. Usually the work stops, and an investigation is commenced. He agreed a ‘near miss’ is a very serious matter which must be made clear to the NCO, either to the Signaller or the Trains Controller. However, it is not as simple as just reporting the incident, as the Driver remains in charge of the moving train and is required to be aware of what signal he/she had passed or is approaching.

[43] Mr Bonatesta conceded that until his statement for these proceedings, he did not tell anyone the next day (or at any time), that he was involved in a ‘near miss’ on that day. However, he had made a note to that effect on his Stopping Pattern Report and in the radio call he did not confirm it was (or was not) a ‘near miss’. He accepted all radio communications should be clear, concise and unambiguous, but he was very shaken at the time. Mr Bonatesta described the situation that day at Allawah. Mr Singh’s photos of the track do not reflect the location he was at - away to the left between the Up and Down Illawarra Main. The workers were further down the track from the photo Mr Singh attached to his statement.

[44] Mr Fagir explored with Mr Bonatesta whether the person he saw in danger was walking, running or jumping out of the way. He said he went into full service (full brake) and pulled the whistle, although the worker was out of the way. Mr Bonatesta denied his actions and conversations with the Network Controller were inconsistent with a ‘near miss’. He explained that the train has two brake systems – a service brake and an emergency brake. He said he did not go into emergency brake because he saw the worker move away from the line. He accepted that if he had been in a position of the train being likely to hit a person, he would have gone straight to the emergency brake. However, by using the service brake, and then by the time the emergency brake might have been necessary, the worker had already moved. Mr Bonatesta insisted that he was not mistaken about someone being on the track when he came around the bend. He did not accept he was wrong about the worker being on the Up Local line. He denied that his actions were inconsistent with his comment that ‘It was too close to someone dying’. He denied the comments he made in his statement, two and a half years after the incident, were ‘embellishments of the true position.

[45] Mr Bonatesta said he had not been interviewed, or involved in any of the investigations in respect to this matter, until approached to make a statement for these proceedings in 2018.

[46] In reexamination, Mr Bonatesta provided further details as to the train’s braking systems, what he did on the day and why. He said there was no way the train could have stopped completely. He recalled passing the workers and pulling the brake down. Referring back to Mr Fagir’s questioning of his actions being inconsistent with his statement, Mr Bonatesta explained:

‘When your learned friend was speaking to me and asking me those questions, I thought he was referring to mainly the radio conversation and my statement combined. Like I said, during the situation, making a judgment call on all those things while concentrating on my location, on how the train is acting, is very difficult, and making sure that that information is transferred across to the Signaller is the most important thing, that something is done about that. By the end of my radio conversation I was confident that they understood the situation and that they would do something about that. When you look back at a situation like this, when you're asking about it, as I was that day and earlier this year, you can judge the situation a lot better put in retrospect when you're not thinking about so many things. That's why even though there is, I can reconcile those.’

Mr Christopher Polias

[47] Mr Polias relied on his statement made on 3 May 2016 in relation to the disciplinary investigation into Mr Singh’s conduct. I shall come back to that statement in a moment. In his statement filed for these proceedings, Mr Polias said that in his role as Rail Safety Coach he reviews and assesses WPPs and work site protections audio every three months, to assist in improving the performance of Signalers and POs. As a Team Leader and qualified PO4, Mr Singh was required to undergo extensive and ongoing training on the application and changes to Network Rules and procedures, in order to retain accreditation. In late 2014, Mr Singh participated in a two-day reaccreditation program and provided four WPPs for Mr Polias to review.

[48] Mr Polias set out his understanding of the incidents on 1 August 2015 as involving the Team taking track measurements. Mr Singh was assigned the Lookout on the Up Local Illawarra line. Mr Polias said that Lookout working can be used for track measurements, unless the parts of the track are identified on the HRCLR prevents Lookout work, or if the Team deems it inappropriate or unsafe. Careful assessment is particularly necessary where measurements are taken on track bends where visibility might be restricted and requires appropriate MSDs. Mr Polias claimed that both incidents were ‘near misses’. At Allawah, there was so little warning that the Team was forced to jump on the Down Local Illawarra line (not a safe place) to avoid being hit. In the Kogarah incident, the Team member only cleared being hit by the train by about three seconds.

[49] Mr Polias described the five graded levels of worksite protection on track, according to NWT300:

‘(a) Lookout Working: one condition of using the Lookout Working method is that Lookouts are not to work continuously at the same location for more than 60 minutes. Further, to use Lookout Working, it must be considered that Minimum Warning Time is attainable and that there are safe places for workers to move to should they be required to move out of the way of an oncoming train.

(b) Absolute Signal Blocking (ASB): is for working in danger zone by maintaining controlled absolute signals at STOP to exclude rail traffic from a portion of the track.

(c) Track Work Authority (TWA); authorizes occupation of a defined portion of track between rail traffic movements. It does not give exclusive occupancy of the defined portion of the track.

(d) Track Occupancy Authority (TOA); this would exclude traffic from a certain area.

(e) Local Possession Authority (LPA): authorizes closure of a defined portion of track for a specified period.’

[50] Mr Polias believed that the Team should not have used the lowest level of protection ((a) above). At the very least, the Team should have used ASB. Approval for this would not have been difficult. Mr Polias based this conclusion on a walk-through of the location and after viewing the CCTV footage of both the Allawah incident and the Kogarah line.

[51] Mr Polias had observed Mr Singh on the Up Local Lookout, walking on the track facing the wrong direction, with his back to approaching trains. This was dangerous and an unacceptable safety risk. As the Lookout, Mr Singh’s sole duty was to ensure he was in a position to see an approaching train and give the required warning, so the Team could be in a safe place for the train to pass. Mr Polias believed that given Mr Singh’s position and the curvature of the line, it would have been impossible for him to give enough warning to his Team to reach a safe place. This demonstrated a complete disregard for his own safety and that of his Team.

[52] It was Mr Polias’ view that the following issues contributed to the cause of both incidents:

‘(a) The Hazardous Rail Corridor Locations Register provided that there were particular parts of the track where using Lookout Working was inappropriate, due to lack of minimum sighting distance and safe places.

(b) Even without checking the Register, it should have been obvious by the curvature of the track that minimum sighting distance was not attainable, making the use of a Lookout inappropriate and dangerous.

(c) The work undertaken on that day was a mobile (moving) worksite which meant that the team should have reassessed the appropriateness of using Lookout working at each location where they were taking measurements.

(d) There was a lack of safe space available adjacent to the track where the Kogarah Incident occurred, increasing the danger of using Lookout working.

(e) Due to the lack of safe space, the Lookout was forced to walk down the track in the danger zone. The Lookout should always be positioned in a safe space.

(f) The near miss at the Allawah Incident should have prompted the team to realise that Lookout working was not appropriate and continuing to use it was placing them at significant and unnecessary risk.’

[53] Subsequent to the incident Mr Polias reviewed the WPP prepared by Mr Chawdhury. He identified a number of issues Mr Singh should have identified and challenged, given his seniority and experience. These were:

(a) The MSD which is stated on the WPP was not achievable for the whole area of the track the Team was working on.

(b) The diagram attached to the WPP shows an assessment of all tracks, including the Up and Down Main Illawarra Line, which the Team did not work on.

(c) There is no definite location allocated for the safe place, as is required.

Mr Polias believed Mr Singh should have queried the WPP in the pre work brief, as it did not refer to the Register; rather, he opted to use Lookout work, despite it being inappropriate in the circumstances.

[54] As mentioned earlier, Mr Polias provided a more detailed statement during the investigation and referred to the following documents relevant to the matter:

(a) The HRCLR in respect to the location of the two incidents.

(b) Network Rules NWT300. NWT300 identifies 21 factors the PO must consider when making an assessment of work in the rail corridor:

  ‘work will affect track under the control of different Network Control Officers or Access Providers;

  appropriate numbers of Competent Workers are available to protect the work;

  easily-reached safe places are available for workers;

  the sighting distance and speed of approaching rail traffic allows sufficient warning time to be given by Lookouts;

  it is possible to close the affected line during the work;

  there will be rail traffic on adjacent lines;

  rail traffic will travel on an adjacent line in both directions over a unidirectional line;

  there will be rail traffic between and/or within worksites;

  signals are available to protect worksites;

  other work on track will affect the worksites;

  there is safe passage to and from worksites;

  there is access to the Rail Corridor by the public;

  there is a risk to workers from road traffic;

  the work will intrude on level crossing;

  the line is electrified;

  the line is track-circuited;

  the formation of the line and the location will affect the work;

  effective communication is available;

  equipment communication is available;

  equipment used in the work will intrude into the Danger Zone;

  other group need to be told about or involved in the work; and

  the level of noise at the worksite will be excessive.’

(c) Network Rules NWT310 ‘Lookout working’ This provides as follows:

‘Lookout Working

Purpose To prescribe the rules for working in the Danger Zone without a work on track authority using Lookouts as the only safety measure.

General If a safety assessment show that it is safe, some kinds of work may be done in the Danger Zone without a work on track authority. Lookout Working is one of those methods of working.

WARNING If the safety assessment shows that a work on track authority is necessary, work must not be done using Lookouts as the only safety measure.

If Absolute Signal Blocking (ASB) is available, it is the preferred method.

WARNING Work on the overhead wiring, or work that breaks the track or alters track geometry or structure must not be done using Lookout Working as the only safety measure.

Only light, non-powered hand tools may be used for work using the Lookout Working method.

Safety measures Lookouts are the only safety measure used in this method of working in the Danger Zone.

An easily-reached safe place must be available if this method is used.

Workers must be able to remove themselves, tools and materials to a safe place immediately when told to do so by a Lookout.

Protection Officer There must be a Protection Officer for the period of the work.

The Protection Officer’s primary duty is to keep the worksite and workers safe.

The Protection Officer must be satisfied that other work will not interfere with protection duties.

The Protection Officer must:

  tell workers about the locations of safe places, and

  determine the number of Lookouts needed to protect the work, and

  be the only person to speak to Network Control Officers about safety arrangements.

Placing Lookouts

The Protection Officer must:

  make sure that the location of Lookout(s) and the visibility conditions give Lookouts a minimum of two seconds to see approaching rail traffic, and

  make sure that when rail traffic approaches, Lookouts can warn workers in time to allow them to:

  react to the warning of the approach of rail traffic, and

  move themselves and their equipment to a safe place and remain there for 10 seconds before the rail traffic arrives.

To give enough warning time, one additional Lookout may be used and an additional five seconds of warning time must be added to any calculation of total time to see, move and be in a safe place for all workers and their equipment.

WARNING If these minimum warning time calculations cannot be satisfied, then Lookout Working must not be used.’

(d) Network Rules NGE200 prescribes rules for walking safely in danger zones.

(e) Network Rules NPR711 identifies the role and duties of Lookouts.

‘Lookouts

Introduction Lookouts give warning about rail traffic movements to workers in the Danger Zone.

WARNING Lookouts do no work other than look for, and give warning about, the approach of rail traffic.

Equipment Lookouts need:

  two independent forms of effective communication with workers, and

  if necessary, an audible warning device.

Additional Lookouts Protection Officer

1. Decide the number of Lookouts needed to keep watch for rail traffic and give warning.

2. If necessary, place an additional Lookout before the Lookout closest to the worksite to give earlier warning about approaching rail traffic.

NOTE

The maximum number of Lookouts permitted in any running-direction is two.

The additional Lookout must stay within sight and hearing of the Lookout closest to the worksite.

Giving Warning NOTE

Lookouts must not use radios or telephones to warn workers.

Lookout

1. Agree with the Protection Officer how workers will be warned about the approach of rail traffic.

2. Stand or walk in a safe place where you can see approaching rail traffic and be within sight and hearing of the workers. If you cannot do both of these safely, tell the Protection Officer.

3. Keep a continuous Lookout for the approach of rail traffic.

4. If you see or are told that rail traffic is approaching, warn the workers immediately.

5. Only if workers and their equipment are in safe places, face the approaching train or track vehicle and handsignal ALL CLEAR to the Driver or track vehicle operator.

6. Wait for the Driver or track vehicle operator to acknowledge the ALL CLEAR handsignal.

7. Make sure that the line is clear before telling the Protection Officer that it is safe for work to resume.

8. Tell the Protection Officer if you need to move from your designated position, and only move if all workers and their equipment are in a safe place, or a new Lookout is in position.

9. Tell the Protection Officer if conditions such as visibility change.

Effective date 19 December 2010’

(f) Sydney Trains Safety Management System Operating Procedure 06.13: Manage risk in the working environment.

(g) Operator Specific Procedures – Reporting Incidents.

(h) Railsafe – Network Incident Notice.

(i) Allawah Level 5 Investigation Report

(j) Incident Information Management System – Incident Report.

(k) Kogarah Level 5 Investigation Report.

(l) Kogarah Level 3 Investigation Report.

(m) WPP for Kogarah incident.

(n) Detailed line diagrams.

(o) Still photo of Team taken at 11.45am, 1 August 2015.

Mr Polias’ reply to Mr Singh’s evidence

[55] Mr Polias provided a detailed response to Mr Singh’s statement. In respect to the photographs provided by Mr Singh, Mr Polias did not accept that the Allawah incident occurred at the location claimed by Mr Singh. These photos placed the Team close to the Lily St Bridge which is identified at 13.595km and the Bridge’s stanchion at 13.533km. By reference to the CCTV footage, other photos, diagrams, driver maps and aerial views, Mr Polias concluded the incident occurred at 13.445km – some 150 metres further on than Mr Singh suggested. The video footage at screenshot 9.53.29 reveals the following:

‘A –Mr Singh is observed to have a sound horn over his left shoulder (used as a warning device);

B – the overhead bridge referred to in paragraph 10(a) above (noting that the bridge pylons were subsequently removed in 2016 and are no longer there);

C – the signal location referred to in paragraph 10(c) above;

D – the permissive signals referred to in paragraph 10(d) above;

E – the 4 foot of the Down Local directly below the train signals, as referred to in paragraph (d) above;

F – the Up Local;

G – the Down Local;

H – the Up Main Illawarra line;

I – the Down Main Illawarra line’

[56] At screenshot 9.55.40 the following is shown:

(a) Mr Singh standing next to Down Local with his back to the Up Local, and not within sight of the warning light.

(b) Two Team members standing in the ‘four foot’ of the ‘Up Local’ close to the permissive signal.

(c) All Team members are walking in the direction of the City, meaning any train on the Up Local is behind them.

[57] At 9.55.50 the Team are in the ‘four foot’ of the Up Local but then the Team is not visible until 11 seconds later when they are seen in the ‘six foot’ between Up Local and Down Local, under the signal. They do not reappear.

[58] At 9.57.22 a train enters the screen on the Up Main, but disappears due to the curvature of the track. At screenshot 9.57.56 Mr Singh is seen standing to the left of the Down Local looking in the country direction of the Up Local. Three seconds later he turns his back to the Up Local and continues walking in the direction of the City. He is no longer visible at 9.58.04. Mr Polias rejected Mr Singh’s claim that he was standing on the Up Cess and watching the warning lights for the Up Illawarra Local. What is reflected in the footage is that at no time, in the five minute period between leaving the platform at 9.53.26 until he is not visible at 9.58.06, is he in the Up Cess. Rather, Mr Singh is seen:

(a) standing near the signal utilities box at the end of the platform until 9:55:34, noting that there is a warning light at that location;

(b) walking up the ‘six foot’ closer to the Down Local, with his back to the Up Local. During this time, there is another warning light but that is in front of him and the light faces the city end, which means that given the direction he was walking, it was necessary to stand in front of it and look back to see the warning light;

(c) for the first time, turning to the side to look for traffic on the Up Local at 9:57:55AM.

[59] By reference to the photos, Mr Polias identified three warning lights. They all face towards the City on the Up Local. Therefore, a worker would need to stand on the City side of the warning light and looking back to it in the country direction.

[60] Mr Polias said that despite Mr Singh’s evidence that the Team had taken ‘a couple of track measurements…’, the CCTV footage shows that at no stage during the period were members of Team seen doing so. Nor were any of the Team members seen on the Up Main (para 54 of Mr Singh’s statement). Mr Polias claimed that at no time was Mr Singh standing where he had claimed in the ‘four foot’ of the Down Local. He was standing at 13.445km. Even if he had been standing where he says he was, he did not have MSD for the Up Main because of the curvature of the track, the Bridge pillars (now removed) and the platform. To ensure MSD, he needed to be 475 metres away (based on track speed of 85km). He was only 142 metres away. Moreover, even if he had walked over to the workers to save them from being hit by a train on the Up Main, he would not have had MSD to get them to a safe place.

[61] Mr Polias said that in any event, if he had to intervene to stop an unsafe situation by walking over to Mr Lynn, this was unsafe and inappropriate. Rather, he should have:

(a) Blown his whistle or pressed his sound horn, noting that from the CCTV footage, Mr Singh was wearing a sound horn over his left shoulder. Blowing the whistle or using the horn signifies to the workers that they must immediately stop what they are doing and move to a safe place. At Team briefings, work members are told that when the Lookout blows this whistle or uses the sound horn, this means they must move to the designated safe place. The designated safe place was the Up Cess as set out in the WPP.

(b) Once all the workers were in a safe place, Mr Singh should have informed the Protection Officer of his concerns about the unsafe practice. This is based on NPR711, page 3, point 8.

(c) A Lookout should not change their nominated Lookout position unless they do so from a safe place, and in consultation with the Protection Officer, who was Mr Chawdhury. This is based on NPR711, page 3, point 8.

(d) Even if his whistle was not available or not working for some reason, he should have remained at his post, in his safe place in the Up Cess, and used the sound horn to get the attention of workers.

Further, Mr Polias believed Mr Singh should have stopped the job and reported the incident to Mr Chawdhury and then to Mr Kinder and Mr Willmot.

[62] By leaving his position as Lookout he failed to follow correct procedure as he did not remove the Team from the ‘high risk’ position he alleged they were in. He took his attention away from the Up Local and did not have MSD to protect the Team. Further, by alleging conversing with Mr Lynn, this was a distraction. He should have communicated his concerns from a designated safe place, and not by standing in the ‘four foot’ of the Down Local.

[63] Mr Polias responded to Mr Singh’s statement that ‘I checked back on the ‘Up Local’, I saw the warning light was out at the same time as I heard the train horn’, by firstly setting out the warning lights function:

‘A warning light will go out 25 seconds before the train is due to reach the position of the warning light. This assumes a train travelling speed of 85km/h. The 25 second period is designed to provide the workers with sufficient time to stop work and move into the designated afe place. The Network Rules prescribe that a worker must have been in a safe place for 10 seconds before the train passes as provided in NWT310.

[64] When Mr Singh said he saw the light was out at the same time he heard the train horn, the train must have been approaching 25 seconds earlier. To have walked from where he alleged he was to the workers, and speak to Mr Lynn, the distance was 20 metres. This would have taken around 14 seconds, leaving little time to ensure the Team’s safety. He should have stayed in a designated safe place and used his whistle or horn. Mr Polias rejected Mr Singh’s suggestion that the ‘six foot’ Up and Down Local, was a safe place. For the Team to have been safe, it would have required something for the workers to hold on to prevent them from being moved by the wind force created as the train passed. In this case, only two workers would have had something to hold onto and two others would have been unsafe. In rejecting Mr Singh’s statement that had he not acted as he did at Allawah, it could have led to serious injury or death, Mr Polias said:

‘If this was the case, as Lookout and as a Team Leader with over 20 years’ experience as an infrastructure worker, Mr Singh should have immediately blown his whistle, warned the workers of the dangers and made sure everyone got off the track and into the designated safe place, which on the day was the Up Cess. Once the group were safely in the Up Cess, then Mr Singh should have explained to them why they (sic) work was unsafe and requested that a higher level of protection be put in place.’

[65] Mr Polias described his careful review of the Allawah and Kogarah CCTV footage and concluded that Mr Singh was neither performing Lookout safety, nor was he acting in accordance with the Network Rules. At 9.54.03 Mr Singh is seen departing the platform and entering the danger zone. All members of the Team are in front of him contrary to NWT310 and NPR711. He ceases to be visible at 9.58.06. At no time, in this 5 minute period, is Mr Singh taking up his position at the Up Cess, as he claimed. At screenshot 9.55.35, two Team members are standing in the ‘four foot’ in the Up Local. Mr Singh’s function was the Lookout for the Up Local. He had his back to the Up Local and was walking away from, and with his back to, the warning light. He is then seen walking up the ‘six foot’ closer to the Down Local, with his back to the Up Local and without being able to see any warning light for the Up Local. He continued to walk toward to the City with his back to the Up Local. At 9.56.38 he walked over to the warning light in the ‘six foot’. The train comes through at 9.57.29 on the Up Main. From 9.57.49 to 9.57.55, Mr Singh is seen walking towards the City close to the Down Local with his back to the Up Local and the warning light behind him.

[66] In respect to the Kogarah CCTV footage, Mr Singh had stated he had been in view of either two or three warning lights on the approach to the station. All of the warning lights for the Up Local face in the direction of City. Mr Singh is observed standing in the direction of one of the warning lights, but he was looking at the back of the light.

[67] Mr Singh had claimed that he and Mr Lynn had agreed that if he moved position, another Team member would keep Lookout and vice versa. Mr Polias said that even if this conversation occurred, this is not how the Team should have repositioned a Lookout. It was an unsafe practice because:

(a) A nominated Lookout is the designated Lookout and any change would need to be made in consultation with Mr Chawdhury, as required by NWT310 and NPR711;

(b) swapping Lookouts is completely unacceptable while walking on the track. A ‘swap’ can only occur if it is organised from a safe place: NWT310 (page 3);

(c) the Lookout must be in a position before work starts and no one on the track until the Lookout reaches their position: NPR711 (page 3 of 8);

(d) it was not difficult to see the warning light from the ‘Up Cess’. If the person was on the correct side, the warning light would be clearly visible;

(e) Mr Polias commented on Mr Singh’s overview (para 76) of what he said is shown in the footage:

(i) at 11.43.34 Mr Singh is not looking at a warning light;

(ii) at 11.43.49 there is no such thing as a mutual Lookout;

(iii) at 11.44.05 no one is looking at the warning light and it is unclear who is supposed to be looking out for whom;

(iv) for 20 seconds from 11.44.56, no one is looking at the warning light. Under the Network Rules all Team members must be in a safe place at least ten seconds before a train passes. It is not for Mr Singh to suggest how much time he had not looked at the warning light. A Lookout must maintain sight of the warning light at all times;

(v) At 11.45.21 Mr Singh stops to look at the warning light, but he should have been looking at the warning light at all times; and

(vi) At 11.45.51 no one is looking out at all and the Team is travelling into position to work.

(vii) At 11.45.52 no one is looking out while taking measurements. Mr Singh would have been able to see that the measurer was crouched down taking measurements and could not possibly be looking out.

[68] In cross examination, Mr Polias said that apart from Sydney Trains employees, contractors can work in the rail corridors, including as PO, so long as they have the necessary training. Mr Polias was referred to the five levels of protections; see: [49]. He agreed that where a Lookout is utilised, a critical component is to ensure an easily accessible, safe place is available. This requires the Lookout to follow NWT310 and NPR711 concerning Lookout working and the procedure for Lookouts. The only times when you can work on one line with adjacent live lines, is either when you have an easily reachable safe place, being the closest to the Cess area, you implement a safe method, or you have an authority to exclude rail traffic.

[69] As a Rail Safety Coach, Mr Polias must keep updated Network Rules and provide advice and training to upskill all employees. He is also required to access worksite protection plans. Mr Polias said a professional safety investigator, Ms Kerry Walker, conducted a Level 3 investigation of the Kogarah incident. He did not doubt her credentials or the quality of her report. Mr Polias confirmed he had seen the Level 3 Report at the time he provided a statement to the disciplinary investigation conducted by the Workplace Conduct Investigation Unit (‘WCIU’). Mr Polias said his role in the disciplinary investigation was to provide clarification on the Network Rules and procedures and to observe the CCTV footage and make comment on it. Mr Polias said that POs are trained in parts of the SMO2-RG-3058RAA matrix and the potential risks of worksite protection.

[70] Mr Polias evidence was that the Supervisor’s responsibility is to ensure that all the hazards are identified and controls put in place for the Team to work (safely). Once on the track there has to be a PO, not just a Supervisor. There must be clarity as to who the Supervisor is, but it is everyone’s responsibility to get involved in a (pre-work) brief and understand the hazards and their controls on the job. He agreed it would not be usual to identify two Supervisors for one work group, unless one had to leave and the other was to take over.

[71] Mr Polias was questioned about the following comment in the Level 3 Report:

‘Although the intention of these rules is apparent they must be able to be very clearly understood with no room for interpretation to be able to be operationalised’.

He did not agree with this comment because there is no room for interpretation in the NWT310 and NPR711. Mr Polias did not believe that there were deficiencies in the procedures, such as a lack of clarity as to what is meant by ‘continuous Lookout’. He drew a distinction between ‘walking in the danger zone’ and ‘working in the danger zone’ in which the former requires looking out frequently, in both directions, for approaching rail traffic.

[72] Mr Polias accepted that the Level 3 Report noted:

  you cannot keep a continuous Lookout in one direction, if you have got to be alert to traffic coming in the other direction;

  the Network Rules do not specifically deal with ‘moving’ worksites (Mr Polias described it as a worksite over a large area. He said that different people will have different views as to whether it was a ‘moving’ worksite);

  the Network Procedures do not address warning lights at all; and

  Rail Safety Coaches do not seem to observe work groups in the field.

[73] Mr Polias also acknowledged that the Level 3 ReportReport made a series of recommendations about improvements to procedures, and a formal review was warranted. However, he did not accept that these deficiencies were relevant to Mr Singh’s conduct because the role of Lookout had not changed and did not need improvement. He also believed that this was ‘continuous work’; the worksite was at fixed locations, for which the Rules applied, to ensure the worksite was properly protected. Nevertheless, having analysed the role of Lookout on the CCTV footage and the various witness statements, Mr Polias believed Mr Singh breached the Rules and the procedures. These were very clear on the roles and responsibilities of a Lookout. In any event, the Team should not have used Lookout working on 1 August 2015.

[74] Mr Polias said that the Rules (NWT300 - planning work in the corridors) requires a safety assessment of the right level of protection, completion of documentation and a briefing for the workers. He agreed there were no procedures which preferences ASB being implemented over Lookout working. Mr Polias accepted that at least one of the Team had said they had habitually used Lookout working for measurements in the same area and the majority of such work is routinely performed under Lookout working. However, having walked the relevant section of track, he believed Lookout working should never have been used. A higher level of protection should have been used and various other teams (signal electricians and electrical main) had also suggested this level of protection.

[75] Mr Polias noted the Level 3 investigator had only interviewed the five members of the Team on the day, and she had based her comments of routinely using Lookout working for measurements from these interviews, not from interviewing anyone else. Mr Polias could not say why his view on the seriousness of Lookout working was different to the five experienced members of the Team. Mr Polias was asked to respond to the Level 3 ReportReport’s observation that the level of quality assurance by Rail Safety Coaches is very paper-based and there was not much ‘in field’ observations. He said that with 250 POs it is difficult to get around to everyone and watch every job. Mr Polias said that in August 2015, overtime was not approved for Rail Safety Coaches, notwithstanding track measurements are usually performed on weekends (as here on 1 August 2015).

[76] Mr Polias said that the HRCLR requires a safety assessment if Lookout working is proposed. In some areas, there is a blanket prohibition on Lookout working, because there are MSD restrictions. He accepted that both Allawah and Kogarah were not prohibited areas, but there were requirements for MSDs and the location of safe places. He noted that warning lights are only for the Up Local.

[77] Mr Polias agreed a new maintenance memorandum was issued by Sydney Trains on 7 August 2015, which requires a WPP to be reviewed and countersigned. Mr Polias explained that it is the PO’s responsibility to prepare the WPP and to check the Register. A qualified Line Manager who is supervising or planning the work, must also check the Register. There is no rule requiring the Lookout to check the Register and he understood Mr Singh was Lookout that day.

[78] Mr Polias agreed he had reviewed other of Mr Singh’s WPPs (4) and accepted they were of a high quality. He actually gave the WPP for Kogarah a 91% rating. However, it was flawed because it lost 5% as the Team did not have MSD. Mr Polias conceded Mr Singh was not obliged to check the Register and the WPP does not require a reference to the Register.

[79] Mr Polias gave evidence of a new Automatic Track Warning System (‘ATWS’) which calculates MWT and MSD by means of sensor technology. This is new technology. It was trialed in 2016 and introduced in 2017 and requires further training and assessment. It is used on truck curvatures or where a Lookout has very minimum sighting distance.

[80] Mr Polias acknowledged that between 11AM and 1:30PM on Friday, 31 July 2015, a Local Possession Authority (‘LPA’) requiring seven days’ notice and excluding all rail traffic, was issued for the Up and Down Illawarra Local between Wolli Creek and Hurstville and that measurements were taken at that time. He agreed LPAs are available on a regular basis every alternate fortnight on the Illawarra Main and Local lines.

[81] Mr Polias said that he first saw the Kogarah CCTV footage on the Saturday after the incident (8 August 2015) and only saw the Allawah footage three or four weeks before these proceedings, when preparing his statement. Mr Polias could not say why the Allawah footage is only a few minutes long and does not show the train actually coming along the Up Local. Mr Polias explained that his role in the investigation was to be asked by the WCIU in May 2016, to act as a subject expert and review the roles and procedures, vis a vis, the CCTV footage and witness statements. He made no recommendations on any disciplinary action.

[82] Mr Polias acknowledged that his critique from reviewing the CCTV footage was over a two and a half minute period which disclosed Mr Singh:

(a) turning his back to the usual direction of the traffic; and

(b) talking to Mr Lynn.

[83] Mr Polias did not accept that the footage shows that when Mr Singh moves, someone else is watching the warning light. In any event, some workers were in the danger zone. Mr Polias said that while he could not say if the workers had a discussion about swapping Lookouts, two things have to happen:

(1) the workers must move to a safe place; and

(2) any replacement Lookout must move to a position to be able to see approaching rail traffic.

He could not be satisfied this had occurred. Even if there was a discussion about moving positions, it must only be done when no-one is on the track. Further, NWT310 requires a Lookout to have two independent forms of effective communication to warn workers of approaching traffic (horn and whistle). There was no evidence that a new Lookout (not Mr Singh) had any means of warning the workers. In any event, it is only the designated PO who can change the arrangements. There was no evidence he did so. He denied this was not the usual way this work is carried out and could not explain how five highly experienced
POs got it so wrong that day. He was very disappointed and had he seen the incident, he would have stopped work.

[84] As to Mr Singh speaking to Mr Lynn, Mr Polias said that NWT310 makes clear that a Lookout cannot do any other work, because their primary role is to watch for approaching traffic and warn workers. Speaking to someone is a distraction, which is other work. While it is not spelt out, the training covers this and it is what Lookouts understand about their role.

[85] Mr Polias accepted that the Level 3 Report identified a certain tension between keeping a continuous Lookout and being alert to traffic coming from the other direction. However, this would only apply for work in bidirectional lines, say, in a yard. In this case, working on an automatic section of one directional lines, he had never witnessed a train approaching from the wrong running direction. He acknowledged that he had seen Lookouts turn very quickly, if they are startled by a train horn on another line. The Rules provide for a Lookout to have a break, at least every 60 minutes. He conceded that the Level 3 Report found an issue about this as to whether the 60 minutes includes moving location, or standing in one spot for 60 minutes. However, no one is ever prevented from taking a break, if they are fatigued at any time.

[86] Mr Polias explained how MWT is calculated. In this case, it should have been 25 seconds, but from the evidence, it was 15 seconds. The Network Rules are open to clarification. However, he could not see how you could interpret being alert for rail traffic from the wrong running direction, means you look away from your primary role of Lookout for 10 seconds. Mr Polias confirmed he had never told Mr Singh:

  that a prohibition on doing other work, includes a prohibition on speaking to your Supervisor; or

  that if you are going to relocate, everyone has to walk off the track, have a conversation with the PO, reach a decision and then move back to the track.

[87] Mr Polias was asked what difference would it make if the Level 3 Report had the Allawah incident occurring at 13.445, or where Mr Singh said it happened 150 metres before that point. Mr Polias accepted that Mr Singh relied on photos he had taken from a public area and not the later material taken from the front of an MTP review train. He accepted the CCTV footage does not actually show 13.445, as it is around the bend. Mr Polias did not go to point 13.445, but he went to (and looked under) the Bridge. He conceded that the CCTV footage ended at 9.59.58 and no worker is seen on the other Main at that time.

[88] Mr Polias agreed that if a worker was taking measurements on the Up Main (as contended by Mr Singh), when there is no Lookout, or even if there was, there would be no MSD, making it unsafe. Mr Singh had said:

‘I wasn't saying that I was perfectly placed to be a Lookout for the Up Main, but I saw this happening and I felt like I had to move to do something about it’.

Mr Polias said this does not make sense, notwithstanding that there were ten times the number of trains on the Main lines than the three trains on the Local. He described his response this way:

‘There's a difference between doing the best you can and there's a difference between doing the best you can and creating an even greater risk.  My reference to this was that if I have a person in a position on the Up Illawarra local to watch out for approaching rail traffic, it's not just the trains now that are important, but it's also the access to the safe place.  Now, at no time was there a safe place, I believe, in those photos, as per NG200, which depicts a safe place, next to the Up Main, so it was important to stay in that position on the Up Illawarra local because if there was a warning of a train approaching and the guys reacted, as they would under NWT310, they would go to the place that they were briefed and that place was the Up Illawarra local Cess, and that's why I made that comment.’

[89] Mr Polias accepted that ‘wrong calls’ are sometimes made and that different people in similar situations might react differently. However, his task was not to account for how people react, but examine a person’s role and responsibilities that day, including having a horn and whistle to alert others and whether the Network Rules and procedures were followed. In this case, it was not appropriate for Mr Singh to walk some 20 metres to where workers were performing unsafe work. He should have remained in the safe place and blown his whistle or horn. It was critical that the line which the Lookout was responsible for was protected, as the other workers would not know if it wasn’t. This assessment is not based on a rule, but the application of his experience and judgement.

[90] It was Mr Polias’ evidence that based on all the reports and the Network Rules, the Allawah incident was a reportable incident and should have been reported at the time by the PO and the Supervisor. The Team Leader should have ensured they did so. He agreed the Level 3 Report identified a less than adequate perception of risk and a culture of non-reporting (incidents).

Mr Paul Bugeja

[91] Mr Bugeja has been employed by Sydney Trains (and its predecessor entities) for over 40 years. He was appointed to his current role in September 2015 and is responsible for the management of electrical, signalling, track, civil and technology maintenance.

[92] Attached to Mr Bugeja’s statement were the:

  Disciplinary investigation report;

  Various documents including:

  Level 5 Investigation Report (6 August 2015);

  Safety Alert-Lookout Working (5 August 2015);

  Memorandum regarding HRCLR (7 August 2015);

  Training Slides for mandatory Safety Reset training session (19 August 2015);

  Reset Notice in relation to the incident and underscoring the importance of collective responsibility for safety;

  Various memoranda in respect to the incident;

  Mr Singh’s Personnel History Report, Position Description and training records;

  PO training and accreditation;

  Disciplinary Investigation Report 22 July 2016; and

  His request for, and response from Mr Singh to the allegations.

The CCTV footage of the Kogarah incident

[93] Mr Bugeja first became aware of the incident at Kogarah on the day it occurred. He subsequently became aware of the Allawah incident. On 6 August 2015, he received the Level 5 Investigation by the Line Manager, which stated, inter alia:

‘the Lookout (Mr Singh) “missed seeing the warning light … the train was approaching on Up Illawarra Local track and saw a worker in the six foot of the track the train driver blew the whistle and the worker in the six foot moved to the four foot of the Down Illawarra Track. After this the Protection Officer received a phone call from Hurstville Signal Box panel about a near miss”.’

[94] Around that time, Mr Bugeja reviewed the CCTV footage of the Kogarah incident and from his observations, he believed:

(a) Mr Singh was clearly visible at the top right hand corner of the footage;

(b) he was walking down the track toward Kogarah platform, with his back to the oncoming train when he was supposed to be operating as Lookout and he should be continuously facing in the direction of the oncoming train; and

(c) he appeared to be chatting, dawdling, leaning down to pick things up from the track, and was paying absolutely no attention to the direction from which he was supposed to be looking out for trains. His role was solely to lookout for trains and nothing else.

[95] Mr Bugeja said he was appalled by what he observed because:

(a) Mr Singh was not performing the role of Lookout, as he had been assigned;

(b) the way in which he was dawdling, chatting and leaning down to pick things up, suggested an absolute disregard for, and poor attitude to safety;

(c) the manner in which he was going about his duties suggested that this was his normal mode of operation, and the level of attention (being lack thereof) that applied to his function; and

(d) that Mr Singh should be so complacent when there had been an earlier incident that day in which he had missed spotting the train, and had only been alerted to it when the train sounded his horn, caused grave concerns not only for his safety, but for the safety of his Team. Mr Bugeja said ‘I thought I would not feel safe having him being Lookout for me if I was one of the maintenance workers’.

[96] Mr Bugeja concluded that because there were two ‘near misses’ on the same day involving the same Team, a serious lack of compliance had been demonstrated by the Team. Various responses were initiated, including:

(a) Mr Singh’s Rail Safety Card was removed and he was taken off rail safety work;

(b) the National Rail Safety Regulator was notified of the Kogarah incident;

(c) on 5 August 2015, a safety alert headed ‘Lookout Working’ was issued by the Director of SEQR;

(d) between 7 – 19 August 2015, the General Manager Network Maintenance, spoke to all Managers to discuss the agenda for the safety reset;

(e) a memorandum was issued to all maintenance staff which stated:

Safety Operating Procedure Manage Risks in the Working Environment (SMS-06-OP-3040) requires that when planning or supervising work in the Rail Corridor the Hazardous Rail Corridor Locations Register must be consulted prior to commencing work’;

(f) Mandatory Reset Training for all Managers, Teams and Group Leaders;

(g) Safety Reset Notices sent to all staff;

(h) Level 3 Investigation. This is required where an incident has the potential to cause serious injury/damage;

(i) disciplinary investigation by Workplace Conduct Investigation Unit, following completion of the Level 3 Investigation; and

(j) a request to the WCIU to consider specific aspects of the incident (18 March 2016).

[97] Mr Bugeja referred to Mr Singh’s role and responsibilities as Team Leader as:

‘(a) Primary Purpose – The Team Leader is responsible for planning and managing work allocation to the team …

(b) Key Accountabilities – 16. Execute safety responsibilities, authorities and accountabilities consistent with Sydney Trains safety management system and requirements which are defined in SMS document number SMS-02-RG-3058 (page 2).

(i) Responsibilities for all Sydney Trains Workers – Universal Safety Responsibilities;

(ii) Responsibilities for Line Managers appear at page 43. Line Managers are described as ‘workers in the organisation who have management or supervisory responsibility for subordinate staff. A range of job titles are applicable, ie Team Leader, Supervisor, Manager etc.’

[98] Mr Bugeja said that PO4 (the highest level of PO) requires regular training and accreditation. The PO’s primary function is to ensure the work group is safe at all times they spend working on the track.

[99] Mr Bugeja was a member of the three-member disciplinary review panel which was required to establish whether the findings of the Investigation were supported and, if so, to consider penalty. He said that on 20 May 2016, Mr Singh was invited to respond to the allegations. On 3 June 2016, the Union provided a response on his behalf. On 9 June 2016, Mr Singh was invited to a disciplinary interview on 17 June 2016. He declined to attend. After reviewing Mr Singh’s responses, Mr Bugeja was concerned about his attitude to safety and his failure to take any responsibility or accountability after the incidents.

[100] Mr Bugeja outlined Mr Singh’s high level of experience as a Team Leader, Track and Structures. The role met a particular function performed during a shift. In the context of track work being a highly dangerous and hazardous work environment, strict Network Rules apply. The Rules require a pre-work briefing by the designated PO on the shift (Mr Chawdhury) as a PO4. Mr Singh was nominated Lookout for the Up Illawarra Local and Mr Chawdhury was nominated Lookout for the Down Illawarra Local. Mr Bugeja set out the role of the Lookout as described in NWT310; see: [54] above.

[101] Mr Bugeja referred to the Worksite Protection Plan which requires that Line Managers planning or supervising work in the Rail Corridor must consult the HRCLR prior to commencing work. Line Managers include Team Leaders. The Hazards Register for the area of track on the Illawarra line stated:

‘Inadequate Minimum Warning Time available for Lookout Working within the Danger Zone’.

This reference precluded Lookout warning in that track area. Moreover, there was no indication that consideration was given to the Register during the WPP. Mr Bugeja believed that this was a failure to adequately and safely plan the work.

[102] Mr Bugeja noted that the WPP must be signed off, and agreed to by all the members of the workgroup, including Mr Singh as Team Leader and Line Manager. Given his years of experience, training and accreditation, he cannot simply defer to the designated PO,. By doing so, and as he felt comfortable with the arrangements because Mr Chawdhury was experienced in the area and a highly qualified PO, Mr Singh demonstrated:

(a) a lack of awareness of the Network Rules;

(b) a complete disregard for his responsibility;

(c) a failure to appreciate his obligations to safety as a Team Leader and person trained as a PO4;

(d) a lack of acknowledgement, acceptance or understanding about his role in this very serious safety breach; and

(e) no contrition or did he give a commitment to do things differently or better in the future.

[103] Mr Bugeja believed Mr Singh had a responsibility to speak up and say that the proposed work method was not in compliance with the Network Rules. Furthermore, System Procedure 02 provides that in relation to workers and visitors, they must:

  avoid taking unjustifiable risks;

  avoid causing harm to self or others;

  follow safety management system by following local operating procedures, reasonable safety directives, work instructions and guides where applicable; and

  be prepared to work safely.

[104] In referring to the ASB processes (tracks are blocked to ensure train traffic does not enter), Mr Bugeja noted that as the day in question was a Saturday, ASB would have taken very little time to organise and arrange with the Signallers. As Mr Singh had been trained on the ASB process, his response (that he had done nothing wrong) was completely unacceptable. He said:

‘It is the least safe method of track work protection and if the MWT calculations cannot be satisfied, Lookout working must not be used. ASB is the preferred method.’

[105] Mr Bugeja rejected Mr Singh’s response that as there were two Lookouts and warning lights for protection, there was no issue with MWT and MSD. He said that two Lookouts were not being used in each direction; only one for Up and Down. Mr Bugeja added that as the work was mobile work, an assessment of whether Lookout working was appropriate, should have been made. This did not occur.

[106] Mr Bugeja refuted Mr Singh’s claim that the Allawah incident was not a ‘near miss’. This was because:

(a) Team members had to move out of the way of an oncoming train;

(b) they had such little time to react to the approaching train that when jumping out of the train’s path, the only option they had was to jump onto the Downline, which is not a safe place. They moved into a danger zone;

(c) they were not in a safe place for the minimum period of 10 seconds; and

(d) they only moved because they heard the train warning sounding its horn.

[107] Mr Bugeja had grave concerns with Mr Singh’s attitude and understanding of his responsibilities, given he consistently maintained:

(a) the incident was not a ‘near miss’;

(b) did not accept it was a ‘near miss’;

(c) refused to take any responsibility for the incident; and

(d) failed to report the incident.

Mr Bujega noted that Mr Singh had said that:

‘At no time was it communicated to Mr Singh that the incident was a near miss. The fact that the Team was allowed to continue work made it clear to Mr Singh and the team as a whole that the incident was not deemed to be serious.’

Mr Bugeja said that the fact the Team continued to work, did not mean the incident was not serious. Mr Singh should have recognised its seriousness and stopped work and reported it, or at the very least prepare a different form of protection. Further, Mr Singh failed to acknowledge he missed the warning light, and failed to properly fulfil his Lookout role.

[108] As a result, the only warning was the train’s horn, causing the Team to jump off the track into an unsafe area (the Down line). Mr Singh’s response did not include an apology, expression of regret or contrition. He offered no commitment to be more careful and diligent. He only focused on making timelier hand signals to train divers; but this was not the issue.

[109] In respect to the Kogarah Incident, Mr Bugeja reiterated his earlier evidence and added that Mr Singh’s implication that Mr Chowdhury was solely responsible, failed to demonstrate that he understands Sydney Trains’ safety culture, which requires everyone to have responsibility for ensuring their own safety and their Team’s safety.

[110] Mr Bugeja set out the chronology of events from the 5 August 2016 when he had advised Mr Singh he had confirmed the allegations and had formed a preliminary view that the appropriate disciplinary outcome was dismissal. Given the seriousness of the matter, Mr Singh was suspended on pay on 11 August 2016. On 15 August 2016, the Union responded to the allegations on Mr Singh’s behalf. There was nothing in the response which changed Mr Bugeja’s preliminary view, particularly as Mr Singh displayed no comprehension of the gravity of his conduct, did not accept any responsibility, or demonstrate any regret or contrition. Mr Bugeja said he considered Mr Singh’s length of service and seniority, but this only added to his concern that his training and experience had meant Mr Singh should have known better. The matter was simply too serious to overlook. Sydney Trains cannot simply ‘pay lip service’ to safety. Mr Singh’s dismissal was justified (he was paid 5 weeks’ pay in lieu of notice).

[111] In response to Mr Singh’s unfair dismissal application, Mr Bugeja:

(a) denied Mr Singh ‘performed his role properly’;

(b) said there was no wrong finding of facts;

(c) claimed Mr Singh completely misconceived the reasons for his dismissal when he said that he acknowledged the train driver with a hand signal;

(d) referred to the submission that Mr Singh was unreasonably and unjustly held responsible for the two incidents. This demonstrated a failure to appreciate the gravity or seriousness of his conduct or acknowledge any wrongdoing;

(e) rejected the assertion Mr Singh was the only member of the Team who was disciplined. All members of the Team had been disciplined, one of whom (Mr Chawdhury) had also been dismissed; and

(f) denied Mr Singh’s breaches ‘were relatively minor’. Mr Bugeja added that given Mr Singh’s admission that he missed the warning signal which demonstrated a failure in his duty, he fails to accept or acknowledge the seriousness of any of his conduct.

Mr Bugeja believed Mr Singh’s reinstatement, particularly given his failure to appreciate the seriousness of his conduct, posed a risk to his own safety and that of other co-workers.

[112] In a reply statement, Mr Bugeja said that the Lookout role is not to be swapped between two members of the work group. Mr Singh’s role was Up Lookout and Mr Lynn’s role was to undertake track measurements.

[113] Mr Bugeja said that Mr Singh’s claim that he was not interviewed by the investigators, who provided the Level 3 and Level 5 Investigations, was plainly wrong. Ms Walker, the Level 3 Investigator, interviewed him on 20 August 2015 and her notes of the interview were included in the evidence. Mr Bugeja said that a Level 3 Investigation is different to a disciplinary investigation, in that the former is the highest level of systemic causation investigation requiring a root cause analysis. It is the usual practice that Sydney Trains is provided with the Level 3 Report, but not the underlying documents. Mr Bugeja described the disciplinary investigation as addressing whether an employee/s had breached the Code of Conduct.

[114] In this case, following receipt of the Level 3 Report, each member of the Team was referred to the WCIU. Mr Bugeja observed that Mr Singh complained that ‘despite its (the Level 3 Report) extraordinary length’, he had been ignored. In fact, Mr Singh was invited to an interview during the disciplinary investigation, but declined to attend. He had numerous opportunities to respond to the allegations and provide his version of events. While Mr Singh complained his only involvement was the two page letter from the Union, there was no ‘page’ limit imposed on the reply and he had every opportunity to respond. Mr Bugeja said that contrary to Mr Singh’s view that he was only mentioned ‘in passing’ in the Level 3 Investigation Report and the ONRSR Report, this was incorrect. In the Level 3 Report it was said:

‘(a) Under the heading “Causal and contributing factors” (which commences at page 5) point 10 records “LTA (Less Than Adequate) correction of at risk behaviours of self and others by all work group team members, and specifically a LTA fulfilment of responsibilities of the Up Lookout in relation to the Allawah incident and its non-reporting …” The reference to Up Lookout is a reference to Mr Singh.

(b) The investigator makes a finding (at page 38): “It is the investigator’s view that the Team Leader shares the largest portion of responsibility for not reporting the first Allawah incident, which would have potentially avoided the Kogarah Incident”. The reference to Team Leader was a reference to Mr Singh.’

[115] In the ONRSR Report, the investigator referred to the HRCLR and found ‘A review of the Register for the Illawarra line identified that there were risks associated with this line where the work group were working’. He queried the HRCLR:

‘… the Hazardous Rail Corridor Locations Register describes much of the Illawarra lines where this work was undertaken as ‘Inadequate Minimum Warning Time available for Lookout Working within the danger zone’. As a result, LOW was not a suitable method of protection for the bulk of the walk and should not have been used. This raises the question of whether protection officers must refer to this register when planning protection for a job. There is nothing in the WPP document that directs protection officers to check the register.’

[116] Mr Bugeja did not believe that Mr Singh was the Supervisor of the Team; rather, his nominated role was Up Local Lookout. Nevertheless, Mr Singh was the most senior member of the Team, as he was at Level 4.4 under the Agreement’s classification structure, while the other PO4s were at Levels 3.1 or 3.3.

[117] In response to Mr Singh’s claim that there ‘is a striking and wholly unexplained contrast between the punishment meted out to him compared to the others, notably Mr Lynn,’ Mr Bugeja said both Mr Singh and Mr Chawdhury were the most culpable, in failing to perform Lookout duties and failing to report the Allawah incident. As a result, both were dismissed. Mr Kolevski and Mr Ivanovksi were regressed in grade, as they were engaged in measuring and not performing PO or Lookout roles. While Mr Lynn was the most junior person with the least experience, he was the WGL. His role was to supervise the technical work being conducted. He was neither a Lookout nor the PO on shift. Mr Bugeja rejected Mr Singh’s ‘singling out’ of Mr Lynn as effectively causing the Allawah incident, and commented:

(a) It remains that, although Mr Singh was not nominated Supervisor on the day, he was a Team Leader Level 4.4, and the most senior and experienced person on the shift;

(b) Mr Lynn had been at Sydenham for a very short period, whereas Mr Singh had worked at Sydenham for many years prior;

(c) Mr Singh also signed the WPP to acknowledge that he accepted and agreed with it;

(d) I do not accept that Mr Lynn caused the Allawah incident and it causes me concern that Mr Singh continues to not accept responsibility for the fact that he failed in the function of Lookout. Even if events occurred as Mr Singh suggests, and Mr Singh considered it necessary to intervene to stop an unsafe work practice, he should have deployed the various safe working method options available to him, such as shouting out, sounding his horn or blowing his whistle, rather than leaving his safe place and ceasing to perform the role of Lookout.

[118] Mr Bugeja denied prejudging the disciplinary outcome or directing the focus on Mr Singh, rather than the systemic problems identified in the Level 3 Report. He noted that all members of the Team had been referred for disciplinary investigation. As previously mentioned, the two investigations have different purposes and functions. Mr Singh was not ‘singled out’ or made an example of. Mr Bugeja reaffirmed his view that Mr Singh’s reinstatement would pose a safety risk.

[119] In cross examination, Mr Bugeja said he was satisfied with the quality and competence of the disciplinary investigation and the Level 3 Report. As he did not initiate the Level 3 Report, he did not know why Sydney Trains used an external person (Ms Walker). He was satisfied Ms Walker carried out the investigation effectively, and while he did not independently assess the facts and circumstances she had reviewed, he took her findings into account.

[120] Mr Bugeja agreed that there was a difference between an employee wilfully breaching a safety rule and a breach due an error of judgment. Mr Bugeja said he did not know the ONRSR had produced a report, until Mr Singh included it in his evidence. While he was not provided with the Report, he understood the Director of SEQR had been given a copy.

[121] Mr Bugeja did not accept that the case against Mr Singh had changed from the case put to him in May 2016. He now understood that although it was common practice to immediately remove Rail Safety Cards from employees involved in a safety incident, this did not occur at the time. He did not know why this was the case.

[122] Mr Bugeja claimed that on 1 August 2015, Mr Singh was Team Leader, there were two Supervisors – one for protection (Mr Chawdhury) and one taking the measurements (Mr Lynn). However, he could not point to any Sydney Trains document which provided for two Supervisors on the same job. Mr Bugeja could not say if the role of WGL on shift might encompass supervision of the technical work. It extends to other duties. Mr Bugeja believed that the concept of Supervisor encompasses Team Leader and WGLs. He agreed that Supervisors:

(a) deliver the pre-work briefing in conjunction with the PO;

(b) supervise the work; and

(c) must tell workers about the risks and hazards of performing the work.

[123] Mr Bugeja accepted that there must be clarity as to the Supervisor, because if there were multiple Supervisors it could lead to ambiguity (in authority). On the day in question, Mr Lynn was required to fulfil these functions.

[124] Mr Bugeja said Mr Daniel Kinder had planned the work that day, but he did not know if Mr Kinder checked the HRCLR. He did not consider this in the disciplinary investigation. Mr Bugeja added that despite Mr Singh asserting since mid-2016, that there had been a worker on the Up Main on the day, he was not aware of it, did not consider it or form a view as to whether Mr Singh was lying. He had relied on the Level 3 Report and the fact there were no work orders for the Up Main. Mr Bugeja did not believe the Team worked short on that day.

[125] Mr Bugeja denied his evidence he had been carefully chosen to identify matters going against Mr Singh and left out any matter which would suggest Mr Singh’s conduct was less serious. Mr Fagir then took Mr Bugeja to the matters it was said had been left out, such as:

(a) Mr Lynn’s 8 years of experience;

(b) all the Team members were qualified PO4s and very experienced in safe working;

(c) the Level 3 Report had indicated that the procedure for the Lookout working modes makes no explicit reference to mobile worksites, which Mr Bugeja said was the case on the day of the incidents;

(d) the expectation of what ‘continuous’ means was not clear as to the requirement for the Lookout to keep a ‘continuous Lookout for the approach of rail traffic’. Mr Bugeja said he had no concern about this because he believed Mr Singh did not undertake the role of Lookout by continuously watching out for trains. That was in breach of the Rules;

(e) ambiguity arises because the procedures require a Lookout to be alert to traffic coming in the opposite direction;

(f) the Rules do not deal with warning lights. Mr Bugeja explained that warning lights are not a consideration when calculating MWT and sight distances as Lookouts must always have a MSD. Warning lights are an aid. As to the Kogarah incident, there was no MSD and the Lookout working should not have been used;

(g) Rail Safety Coaches and the Team Manager do not conduct regular safety observations/interactions on Lookout working (6.3.4);

(h) observations are rarely conducted, if ever, on track measurements worked in the field. It is most frequently scheduled for weekends (6.3.5); and

(i) Sydney Trains had imposed long periods of no overtime for management staff.

[126] As to (h) and (i) above, Ms Walker had concluded:

‘The combination of these factors means that rail safety coaches and the team manager do not have access to the task for the purpose of conducting safety observations. There is therefore minimal opportunity for observation of at risk behaviours and work methods that cannot be identified from review of paperwork alone.’

However, it was Mr Bugeja’s evidence that he did not agree with these findings, as track measurements are also taken during the week. He agreed he did not take steps to establish whether Mr Singh had been coached or observed in the field. Mr Bugeja accepted he did not take any steps to determine whether Mr Singh’s account of the incidents were true or otherwise.

[127] Mr Bugeja acknowledged that Mr Kinder had planned the work that day and Mr Singh had no role in planning, or supervising the work. He agreed that it is a challenge to ensure that written policies and procedures are applied in the field. However, Sydney Trains has a system for monitoring compliance. He was not aware if any safety non-compliance issues involving Mr Singh prior to 1 August 2015.

[128] In further evidence, Mr Bugeja was taken to the ten causal and contributory factors in the Level 3 Report, being:

‘1. Less than Adequate (LTA) specific procedures for track work for mobile worksites; absence of human factors for the ability of people to concentrate and meet the “60 minute rule” continuous watching and the “2 second” sighting rule for Lookouts; LTA detail in NWT300 – no reference to Hazardous Locations Register (HLR), Network Diagrams and Warning Lights and no method to show how safety assessment is done.

2. LTA application of knowledge and skills gained in training to manage risk; non use of HLR; culture of using Lookout Working for track measurement.

3. LTA coverage of quality control by observation of the track measurement task.

4. LTA Worksite Protection Plan (WPP) Form prompts; LTA definitions of Safe Walking e.g. direction, track, Warning Lights.

5. LTA consideration of the makeup of the work group and allocation of roles to optimise group functionality.

6. LTA definition and consistency of application of quality control procedures for WPPs, specifically Rail Safety Coaches and Corridor Safety System.

7. LTA application of when roles of PO and Lookout can be combined considering the current documented definitions of each role.

8. LTA perception of risk supported by the culture led to non-reporting of near miss and therefore missed opportunity to identify and correct incorrect application of Lookout Working.

9. LTA definition and application of Minimum Sighting Distance in procedures.

10. LTA correction of at risk behaviours of self and others by all work group team members, and specifically

a. LTA fulfilment of responsibilities of the Up Lookout in relation to the Allawah incident and its non-reporting; and

b. LTA fulfilment of responsibilities of the PO/Down in relation to the Kogarah incident.

c. LTA performance management intervention of local management and work group members over the past four years.’

[129] Mr Bugeja accepted the findings that there were less than adequate procedures for track work mobile sites, and less than adequate application of knowledge and skills, but did not take these into account when deciding to dismiss Mr Singh. He took into account the non-use of the HRCLR.

[130] The Level 3 Report made 15 recommendations as follows:

‘1. Conduct a risk assessment of the use of Lookout Working as a safe method of work for any work (both static/fixed or moving/mobile, with or without power tools) conducted on track where the worker may be required to be in the line of fire of the train in order to effectively conduct their task (e.g. track inspection, track measurement). This extends to a reasonable expectation that they may unintentionally put themselves in the line of fire during the conduct of the task.

a. The risk assessment to include consultation with workers who perform the relevant tasks.

b. When considering the effectiveness of current procedures, review any behavioural controls of the Lookout function e.g. maintaining the required level of alertness for 2 second intervals for up to 60 minutes, keeping a Lookout in both directions for unexpected rail traffic – include assessment by human factors specialists utilising current, verifiable best practice sources.

d. The risk assessment to consider the feasibility of effectively combining the Protection Officer and Lookout roles in one person.

The risk assessment should be authorised by a senior manager in the organisational line that is responsible for the workers who perform the task.

2. Implement an audit regime whereby an appropriate sample of work conducted under Lookout Working conditions is coached/audited on the job for as long as this method of working continues. The same size and frequency must be representative to provide assurance that the findings provide a realistic picture of how the work is being conducted across the network.

3. Conduct a formal evaluation of the effectiveness of the Rail Corridor Safety System as a risk control. Specifically the level of risk assurance/control it provides to the network for which it is applicable versus the network for which it is not applicable.

4. Conduct a behavioural analysis of reporting near misses. This is to establish the appropriateness of the supporting systems for this process, as well as to identify the unintended organisational consequences that “punish” the reporting of near misses.

5. Modify relevant procedures and training material to include specific descriptions of the safest methods of walking a track, including:

a. Use of the Safe Place as default walking zone

b. Direction of walking when walking along the track

c. Use of Warning Lights where MSD cannot be achieved (Refer Recommendation 10)

d. Considerations where multiple tracks are running

e. Access to Safe Place in the event of a passing train

6. The following recommendations are made in relation to the Hazardous Locations Register:

a. Review the content of the Hazardous Locations Register to confirm its accuracy and readability as a day to day reference tool. The review to be conducted in consultation with Network Maintenance users and any other relevant key stakeholders.

b. Confirm that the training of Protection Officers adequately defines, teaches and assesses the competencies required for use of the HLR by its target audience.

c. Consider incorporating the use of the HLR into all relevant procedures, checklists, forms and other documents used by POs e.g. Worksite Protection Plan.

d. Provide appropriate access to the HLR for users at Network Bases and in the field.

e. Integrate reference to the HLR into Sydney Trains safety practices such as Safety Audits and other relevant safety assurance processes.

7. Define and document the scope of use of the Driver Route Knowledge Diagrams and the Worksite Protection Planning Diagrams in the context of worksite protection. Provide ready access to current diagrams for users at point of use.

8. Update relevant procedures and training materials to include a description of the “safety assessment” process conducted by the Protection Officer, include consideration of the HLR and the relevant drawings, and some guidance as to what to do if one or more of the factors exists.

9. Liaise with other relevant parties within Maintenance and SEQR Directorates to include coaching and audit of the process of conducting a “safety assessment” by the Protection Officer in various relevant (not all) coaching, audit and assurance activities.

10. Document the role and application of Warning Lights, including the drawing set on which their positions shall be accurately depicted, and the methods by which they can be changed/added.

11. Revise the WPP assessment checklist to describe criteria that better reflect and rate the quality of completion of the document, not just whether or not fields have been entered.

12. Review the process of allocation of responsibilities within work groups from VMC meetings and the factors to be considered when doing so.

13. Re-define the ratings of incidents based on potential outcome rather than actual outcome.

14. Undertake appropriate performance management of relevant managers and workers in relation to:

a. Preparation of Worksite Protection Plans including the safety assessment, use of the HLR, and use of relevant Diagrams for planning work.

b. Application of:

vi. NGE200 Walking in the Danger Zone

vii. NWT300 Planning Work in the Rail Corridor

viii. NWT310 Lookout Working including use of Warning Lights

ix. NPR711 Lookouts

x. Incident Reporting.

c. History of similar incidents over the past four years that included individuals involved in this incident and others within their work team.

15. Review training programs provided to employees to ensure that they adequately cater for staff with English as a Second Language (ESL) in their content, presentation and competency assessment.’

[131] Mr Bugeja understood that all but one of these recommendations had been accepted. The rejected item (13) was ‘Redefine the ratings of incidents based on a potential outcome rather than actual outcome’. Mr Bugeja conceded that as a consequence of the incidents, there had been a revision of the practices in relation to Lookout working to address the above recommendations. He disagreed there was ‘a lot of improvement required’. There was some improvement and some clarity needed.

[132] Mr Bugeja said that the WPP form now refers to the HRCLR. It did not do so prior to August 2015. A further change was made to require a second person to check the Register ‘in addition to the Line Manager’. Mr Singh, as Team Leader, was required to consult the Register, per Operational Procedure 6.13 at the time, or at least to have asked whether the Register had been checked. Mr Bugeja said that he was not aware of anyone asking Mr Singh these questions. Mr Bugeja did not know if Mr Kinder, as the planner of the work, or Mr Lynn as the Supervisor, had checked the Register. Mr Bugeja understood that there was no express policy or rule requiring all Team members to understand the WPP, but it was implied that workers have an opportunity to comment on the WPP.

[133] Mr Bugeja reaffirmed his view that the Network Rules require that if there is inadequate MWT or signalling distance, Lookout working is not permitted. He understood the areas in question at Kogarah and Allawah are in this category. Mr Bugeja was asked to comment on Mr Polias’ evidence that it is permissible in areas like Kogarah and Allawah, provided the PO conducts a safety assessment and concludes that Lookout working is appropriate. He said that this means other forms of protection must be put in place. Mr Bugeja believed that a higher level of protection should have been used. This was why, among other reasons, he believed Mr Singh should have refused to engage in, or speak out against, Lookout working.

[134] Mr Bugeja was asked about an LPA in place in the same areas the day before 1 August 2015. However, the LPA was unnecessary as the management was at a barbeque. He could not confirm that to be the case and had taken no steps to do so, as he considered it irrelevant. He denied he was not interested in anything other than laying the blame on Mr Singh and Mr Chawdhury. In any event, Mr Bugeja said that the PO could have arranged for ASB. He agreed it was not Mr Singh’s responsibility for doing so.

[135] Mr Bugeja was asked to comment on the WPP for that day. He said there was no problem with the way it had been completed, if it had been used for the appropriate track. He said there were multiple site Supervisors and Team Managers identified, which could not be explained. The Up and Down Cess had also not been identified. Mr Bugeja understood a Rail Safety Coach had reviewed the WPP and graded it at 91% according to the applicable criteria. However, Mr Bugeja is not responsible for the Coaches, although he knows what they do.

[136] Mr Bugeja was concerned that the Level 3 Report identified a culture of civil maintenance conducting track measurements under Lookout working. He inquired into this and found that, in this instance, that was true (as was claimed by some of the Team). However, Lookout working was not the only method of protection used for the track inspections in that area. There was a specific allegation that Lookout working should not have been used, as there was insufficient MWT and MSD.

[137] Turning to the Allawah incident, Mr Bugeja said that the evidence in the Level 3 Report was that someone jumped out of the path of the train, but the train driver described it somewhat differently.

[138] When Mr Bugeja was asked about Mr Singh’s comment, ‘I saw something unsafe and I moved to intervene’, he said he should have maintained his protection, and alerted the PO or the other staff by blowing the whistle or horn. Mr Bugeja accepted that there was no rule which required that course of action. Neither Mr Singh, nor any member of the Team had reported the incident as a ‘near miss’. They all had a responsibility to do so. Mr Bugeja could not say if Sydney Trains had reported the incident at Allawah to the ONRSR. Mr Bugeja was asked why he referred in his letter of 7 April 2016 to the Allawah incident as a safe working incident and to the Kogarah incident as a ‘near miss’. He said they were both safe working incidents. He was referred to:

  Mr Lynn’s view that Allawah was not a ‘near miss’;

  the train driver’s comment to the Network Controller ‘I don’t know if I consider it a near miss’; and

  the Network Controller did not treat it as a ‘near miss’, largely based on the driver’s account.

Both of them were probably required to treat it as a ‘near miss’, but the driver was likely to have been in a ‘stressful position’ at the time. Nevertheless, Mr Bugeja believed it was a ‘near miss’ because:

  the workers were not in a safe place for ten seconds;

  they could not reach a safe place;

  they jumped out of the way of a train; and

  their refuge was a ‘live’ running track.

[139] Mr Bugeja was referred to the transcript of the audio exchange between the train driver and the Controller. While he was very concerned that the Controller did not report a ‘near miss’, he was unaware of whether he had been reprimanded, demoted or otherwise disciplined. He could not comment on the perceptions of the five experienced workers and the Controller that it was not a ‘near miss’. Further, he noted the driver had called it a ‘close call’.

[140] Mr Bugeja confirmed that on 14 September 2015, he requested the WCIU conduct a disciplinary investigation following the completion of the Level 3 investigation. However, there were four versions of the Level 3 Report (31 August, 24 September, 31 October and 18 December 2015). He was unaware of the later versions and believed his version, before 14 September 2015, was an interim report. Mr Fagir pointed out one important change concerning Mr Singh which did appear in the later versions, in which it was said; ‘History of similar incidents over the past four years that included individuals involved in this incident and others within their work team.’ Mr Bugeja accepted Mr Singh had no previous disciplinary history. Another paragraph which disappeared was:

‘If disciplinary action is taken, Sydney Trains maintenance management would need to ensure that it is then consistently applied across all of its operations. This is in order for it to be perceived an effective response rather than the blaming of individuals who are unlucky to be caught out.’

Mr Bugeja said he had no influence over the content of the Level 3 Reports.

[141] Mr Bugeja said the following propositions that were put to him were incorrect:

(a) he had no real interest in getting to the bottom of what happened on 1 August 2015;

(b) he had decided ‘very early’ that a ‘couple of heads had to roll’;

(c) he had no interest in investigating any management failures; and

(d) that it was all a ‘blame game’.

[142] Mr Bugeja was questioned as to whether the Up Cess was an easily accessible safe place. If the worker was 14 seconds away, there was a doubt as to whether the Up Cess was a safe place. In any event, Mr Bugeja said that the calculation had to be planned in advance. Mr Bugeja said that as a Lookout and as a PO, the Lookout should have warned the workers to remove themselves from the track. Mr Bugeja agreed that the premise which underpins the calculations - meaning the Up Cess was a safe place - cannot hold, if a worker was actually on a Main line, as opposed to a Local line. He accepted that it was not clear that the Up Cess was in fact the safe place for the purposes of a worker on the Main line at Allawah. Mr Bugeja contended that the workers should not have been on the Main line and to remove them from danger they needed to be placed immediately in a safe place. The Down Local was protected by a Lookout, but the Up Local should have been protected by the Up Illawarra Lookout.

[143] Mr Bugeja said that if he put himself in Mr Singh’s position, he would have remained in the Up Local looking at the warning lights and having 20 seconds to advise staff to get off the track. He agreed he did not know what the exact number of warning seconds were. Mr Bugeja’s understanding was that Mr Singh was using the warning lights to protect staff. This was not a contravention of the Rules at the time.

[144] As to the disciplinary investigation, Mr Bugeja understood that this was always conducted by the WCIU. The rationale for this is that if a safety investigation identifies causal factors, a call is made as to whether there is a case to answer. Mr Bugeja denied he had directed the investigation to particular conclusions or assumptions. He also accepted the Level 3 Report raised questions about Lookout working and ‘moving worksites’. He accepted that breaches of the Network Rules was a question for the investigator, notwithstanding that he had identified a history of safe working breaches over the last 10 years at Sydenham Civil. He did not name Mr Singh specifically. He denied he was putting information in the memo to the WCIU to ensure that Mr Singh and Mr Chawdhury were found guilty of safety breaches.

[145] In questioning about the CCTV footage at Kogarah, Mr Bugeja said that he had observed Mr Singh with his back to the direction of ongoing trains for the majority of the time. Mr Bugeja denied that the Rules changed about reassessing changed work locations after the 1 August 2015 incident. He agreed it was more explicit in the later version of NWT310 when it now reads:

‘If the work location changes, reassess track speeds and the locations of Lookouts to make sure that minimum warning times and communication with the Lookouts are maintained’.

This was a change recommended in the Level 3 Report and it is now much clearer.

[146] Mr Bugeja’s evidence was that Lookouts have one function – to continuously look out for trains at all times, not turning one’s back on a warning light. He accepted the Rules require Lookouts to be alert for unexpected rail traffic, or when a train comes from the wrong running direction. This meant that the Lookout role was predominantly to be looking in the direction of trains running. He accepted that whatever continuous Lookout means, it does not mean you can never turn your back away from the usual directions. Mr Bugeja added that the opposite direction would be protected by the signalling system. He conceded his view is not readily apparent from the Network Rules.

[147] As to a need to move from a designated location, Mr Bugeja said:

‘To change Lookouts, all workers must be in a safe place. So you can't walk along the track and say, I'm the Lookout, the workers are still in the danger zone, and then you're the Lookout, etcetera. Also the work site protection plan identifies who the Lookouts are. So, if there's a change of Lookout, the work site protection plan should identify who the Lookout is.’

[148] It was Mr Bugeja’s evidence that to ensure MSD you can have two Lookouts and the MSD increases by five seconds. He did not agree with Mr Singh’s description that they had two Lookouts when one is relocating. The Rules refer to an additional Lookout, but it is not meant as an alternative Lookout – it is an intermediate Lookout to increase MSD.

[149] Mr Bugeja understood that the investigator had been provided with the Kogarah CCTV footage conducted by Service Manager, Ms Marian O’Connell who formulated the allegations against Mr Singh. While not expressly alleging that Mr Singh had failed to maintain a continuous Lookout, by turning his back on the warning light, its essence was captured by the allegation that he failed to take care of the workplace health and safety laws, by allowing work, despite the lack of MWT and MSD. Mr Bugeja agreed there was no specific allegation that Mr Singh was dawdling, chatting or leaning down with absolute disregard for safety. However, Mr Bugeja claimed he was ‘appalled’ by what he saw on the CCTV footage: Mr Singh’s conduct and Mr Chawdhury walking in the danger zone. He did not see anything to show the other workers were concerned with Mr Singh’s conduct.

[150] Mr Bugeja acknowledged the Level 5 Report conducted by Team Manager, Mr Tom Willmot recommended coaching and investigation into Lookout working rules and sighting distances. Mr Bugeja agreed he was the only person associated with the issue, who had claimed to have been appalled by what he saw, even though others involved in the investigation had access to the CCTV footage. As he had been concerned that no one else in the experienced Team had spoken out, and they had been disciplined accordingly. Mr Bugeja said it was an ‘oversight’ that he did not question the allegations about the Lookout issue. He had a concern with the way the Team worked, when two incidents occurred within two hours.

[151] Mr Bugeja was taken to each of the recommendations of the Level 5 investigation and was concerned by them and later queried how his expectations of safe working appeared so different to the Team. The fact that quality assurance in the field was so lacking, did not remove the onus on persons in the field to comply with the Network Rules. A number of steps were subsequently taken to ensure a similar incident does not happen again, including coaching, improving briefing workshops on corridor safety systems and to ensure the appropriate protection methods.

[152] Mr Fagir took Mr Bugeja to his evidence as to why Mr Lynn had been treated differently to Mr Singh, noting particularly Mr Singh’s consistent refusal to accept any responsibility for the incidents or offer any contrition. Mr Bugeja rejected Mr Singh’s claim that as he was comfortable with Mr Chawdhury’s knowledge, experience and qualifications, he had not questioned him at the time about the WPP. Mr Bugeja agreed that Mr Chawdhury was a PO4 and an ASB Trainer. He was experienced on the section of track, and was the Supervisor on the day. All the other Team members made the same point about Mr Chawdhury’s role, including Mr Lynn who said he:

‘felt that as the protection officer was highly qualified, and had extensive knowledge of the area, he was not in a position to argue against these arrangements.’

Mr Bugeja said this was Mr Lynn’s view, not his – everybody had the opportunity to comment on the WPP.

[153] Mr Bugeja noted that Mr Lynn had no extensive knowledge of the track area or the necessary protection arrangements. He had been contrite. Mr Singh had claimed to have worked in the area before, and had told the ONRSR investigator he knew the area very well. Mr Bugeja agreed Mr Lynn (like Mr Singh) had not described the Allawah incident as a ‘near miss’. Mr Lynn had also denied he had failed to take care of the Team. However, Mr Lynn was the most junior person in the Team and was responsible for undertaking the technical track measurements; Mr Chawdhury was responsible for protection arrangements and Mr Singh was responsible for safety, in terms of Lookout working. Mr Bugeja denied the only difference between Mr Lynn and Mr Singh was that Mr Lynn had said they should not have used Lookout working, where as Mr Singh said they did not need to.

[154] Mr Bugeja did not know what Mr Singh was asked during the disciplinary investigation. Mr Bugeja said that no person had been disciplined for not using LPA on 31 July 2015 for track measurements, because it had no relevance to the incident on 1 August 2015. He could not say if anyone else had been disciplined for wider systemic problems identified in the Level 3 Report. Mr Bugeja could not explain the delay between 1 August 2015 and 20 May 2016 when the allegations were put to Mr Singh. There was an interim report, a final report on 15 December 2016, which was then forwarded to the WCIU.

[155] In reexamination, Mr Bugeja said that in being involved with the decision making process he took account of Mr Lynn’s contrition, had considered the Level 3 Report, the responses from the Union and the discussions he had with other panel members and a letter from Mr Lynn, dated 15 August 2016 (Exhibit 8) in which he said to Mr Bugeja:

‘I’m writing to you to request leniency in the ruling brought down from the investigation into the near miss incident [on] 1st August 2015.

I appeal to you to consider that this incident occurred over 12 months ago, with that I feel that I have already been penalised by being restricted to the depot for the last 12 months and being unable to work weekends (rostered or Overtime).

This is the first incident that I have been involved in, in my 12 year railway career.

I realised that I should have done things differently on the day and will always remember that day and will always question things if I don’t think it’s right or safe.

Since July 27th 2016, I have been selected to be part of the MTP Pilot Program at Granville and I realise that this is a very important job for which I am gratefull (sic). I do not want to let my team down or waste this opportunity.

This incident has been a traumatic for me and my family and will have an everlasting effect on myself. Once more could I please request for leniency in regards to this penalty’.

Mr Scott Webster

[156] Mr Webster’s statement dealt with a request made by Mr Fagir during the proceedings for any CCTV footage from the City and Country ends of Kogarah station for around 45 minutes from 10am to 10.45am of a potential incident on 6 April 2018. The footage established that four cameras at the city end of Kogarah Station were all facing that direction. Mr Webster said that these are manual cameras which can be manipulated by the CCTV operator to view different directions and different distances. They are not fixed in a set position and are left in the position used by the previous operator. On the day in question, all four cameras were facing the country end of Kogarah Station.

[157] Mr Webster’s statement and the CCTV footage he referred to were admitted into evidence. Mr Webster was not required for cross examination.

Ms Amber Sharp

[158] Ms Sharp is the legal practitioner at Bartier Perry responsible for the conduct of this matter on behalf of Sydney Trains. Ms Sharp’s statement identified and annexed numerous email/letter exchanges between her office and Mr Singh’s earlier legal representatives and then to Mr Singh directly between 13 February 2017 and 30 March 2017. As all these exchanges dealt with offers of settlement on a without prejudice basis, all of which were ultimately obviously rejected, it is unnecessary for present purposes, to provide any further details. Ms Sharp was not required for cross examination.

Mr Singh’s evidence

[159] Mr Singh is 79 years of age and was born and educated in India. He completed 10 years’ national service in the Indian Navy in 1969. On leaving the Navy, Mr Singh worked in farming and took up duties as a Sikh Priest. In November 1981, he came to Australia as a priest and to manage the Sikh Temple in Revesby, NSW. As his religious duties were unpaid, he applied for a job with the State Rail Authority and secured acceptance as a Fettler in 1982. He undertook various training and eventually became a Team Leader for Sydney Trains.

[160] Mr Singh said he was never told he was a Line Manager and never understood himself to be a Line Manager. For most of this time, Mr Singh was based at the Sydenham depot. He was transferred to a satellite depot at Sutherland in March 2013. Mr Singh said that in almost 34 years’ service, he had never been subject to any disciplinary action and he was frequently congratulated for his good work. Mr Singh always volunteered for overtime and weekend work. In the last five years, his average remuneration was $140,000 per annum.

The work on Saturday, 1 August 2015

[161] Mr Singh volunteered for, and was rostered to work with a Team from Sydenham undertaking track measurements. Mr Singh said that when he attended a briefing around 6am that day, Civil Team Leader, Mr Daniel Kinder, identified Mr Chawdhury as the PO and Mr Lynn as the Supervisor. Mr Kinder handed Mr Lynn the necessary paperwork. It was Mr Singh’s belief that there was no doubt Mr Lynn was the Supervisor that day, despite the Level 3 Report suggesting he (Mr Singh) was the Supervisor, or at least there was some confusion as to who was in charge. However, Mr Lynn was giving orders all day. Mr Kinder never told him he was the Supervisor. It was Mr Chawdhury who assigned him to work as a Lookout. Mr Singh said it would have been surprising if he was assigned the role of Supervisor, given that he had not worked around the Sydenham depot for more than two years and his track knowledge was not up-to-date. Local knowledge was important for Supervisors and POs.

[162] Mr Singh claimed that around 7.30am, when Mr Chawdhury delivered a briefing to the Team and discussed the WPP, he was nominated as the Up Lookout. When he asked if the HRCLR had been checked, Mr Chawdhury said he had done so. Mr Singh said he signed the pre-work briefing and understood he was to stand in a safe location on the countryside of the track and look out for the workers and trains approaching toward Sydney, on either the Up Local or Up Main tracks. Mr Singh claimed that after he looked at the WPP, he made these observations:

‘The work group should walk and take measurements from Wolli Creek Down to Hurstville because we should walk facing the trains.

After each measurement the work group should walk on the Up Cess till the next measurement spot. The measurements shouldn’t take place until the protection is in place.

At places where we can’t meet Minimum Sighting Distance (MSD), I’ll act as an outer LO (Lookout) and Andrew you be inner LO for us. When the measurement finishes I’ll keep a Lookout and you walk to the next measurement station and stop there and start looking out. I will then move forward. When I’m about 30 metres away I’ll look out as well as you. You shouldn’t write anything. You only look at the trains. When the measurement is done everyone move to the Up Cess and you look out again while I move forward.’

[163] Mr Singh challenged the WPP which disclosed that Mr Chawdhury was the PO, and Mr Kolevski, Mr Lynn and he were the site Supervisors. Mr Singh claimed that the WPP he had signed, only identified Mr Lynn as the site Supervisor or Team Manager. Had he seen his name listed as Supervisor, he would have said something, because it was not his understanding of his role that day. In any event, it would not be normal practice to nominate three Supervisors or Team Managers to a five-person Team.

[164] Mr Singh denied he was guilty of misconduct because he allowed work to be done using a Lookout method. He claimed that as the planning of work and supervision of workers was the responsibility of Mr Chawdhury and Mr Lynn; they were in the best position to determine the appropriate work method. He said that although he had been consulted about the WPP and had agreed to it, he had understood Lookout working was the usual protection method for taking measurements in the area. Other protection measures are not commonly used for measurement work and no one had ever told him to the contrary. Nevertheless, Mr Singh acknowledged he had responsibility for his own and fellow workers’ safety - which he acted upon in any event.

The Allawah Incident

[165] After completing measurements between Penhurst and Mortdale the Team drove to Hurstville and Kogarah. When walking to the work location, Mr Singh claimed he had the following conversation with Mr Lynn:

‘Andrew: I have designs for the Up Local and Down Local lines, but don’t have designs for Down Local and Up Main. Do you have them?

Subeg: I used to have the designs on my computer at Sydenham, but I don’t have them with me now. If you don’t have design for Down Local and Up Main, there is no point of taking the track measurements. It is not safe as well.’

[166] Mr Singh attached to his statement a number of photos said to identify the location of the incident and the positioning of the workers when he took up his Lookout position, standing on the Up Cess and watching the warning lights for the Up Local, as he had understood the Team would be taking measurements on the Up and Down Locals only. Although he believed his position was well-placed, he had a limited view of the Up Main due to the Bridge and curvature of the track. Mr Singh claimed he had looked back briefly as the Team was behind him. Shortly after, he noticed two workers taking measurements between the Down Local and Up Main lines. Mr Singh said that as this was wrong and unsafe and the protection was not focused on Up Main, which was limited in any event, he decided to immediately intervene. He moved to get a better view of the Up Main and to advise Mr Lynn to stop measurements on the Up Main. At that point, Mr Kolevski was on the Up Main. Mr Singh said he told Mr Lynn ‘Andrew please stop taking measurements here. It is not safe, and you don’t have the design.’ As he said this he looked back to the Up Local, noticed the warning light was out and heard the train horn as it came on the Up Local. He acknowledged the driver by raising his right arm. Mr Singh denied ‘anyone jumped out of the way of the train’. Although the workers were on the Down Local and they were at risk if a train came on the Down Local, Mr Singh believed that although the situation was unsatisfactory, he had no option but to act immediately in respect to the seriously unsafe situation with Mr Kolevski being on the Up Main. The risk was less because Mr Chawdhury was Lookout on the Down Local and if a train had come, the workers could have moved to the ‘six-foot’ between the Up and Down Locals.

[167] Mr Singh continued with his version of events. After the incidents, as the Team were gathered on the Up Cess, Mr Chawdhury advised that the Signal Controller had called as the train driver had complained that the Lookout did not respond to the horn. Mr Singh disputed this and said he gave him a hand signal. As they were waiting for the Signal Controller to call back, Mr Singh claimed he said to Mr Lynn:

‘Andrew please don’t do measurement (sic) at Down Local and Up Main again and concentrate only on Down Local and Up Local only’.

[168] Mr Singh said that as the Signal Controller did not call back, there was no incident requiring work to stop or for the Team to wait for a Response Commander to attend the location. Mr Singh rejected Sydney Trains’ misconduct allegation that he failed to report the incident as a ‘near miss’. He believed it was not a ‘near miss’, as no one ‘jumped out of the way’. The Response Commander confirmed this view after he attended soon after the Kogarah incident. He claimed they had the following conversation:

‘Rail Commander: How about Allawah?

Subeg: What driver had reported?

Rail Commander: Driver made a report that LO did not show hand signal.

Subeg: When train came, nobody was on the Up Local. Andrew and the workers had started measurement on Down Local and Up Main. I went by there to stop them and tell the supervisor to stop the job as it was not safe. By that time the train came on the Up Local. He blew the horn and I raised my right hand. I gave hand signal a bit late. Because I was on the opposite side of the driver, he might not have seen my hand signal.

Rail Commander: Anyway, it is a minor thing and let us talk about Kogarah incident. Were you the Lookout on the Down Local?

Subeg: No, I was Lookout on the Up Local. Mohammed was the Lookout on the Down Local.

Rail Commander: Ok, Mohammed and Cane (sic) stay back. The rest of you can go.’

[169] In any event, Mr Singh noted the Allawah incident was reported by the driver and the Signal Controller and the PO took no further action.

The Kogarah Incident

[170] Mr Singh said that when the Team moved to Kogarah, there was no change to his role as the Lookout for the Up Local. The train which nearly struck Mr Kolevski was travelling on the Down Local. Mr Singh responded to the Kogarah incident allegation similarly to his comments concerning the work at Allawah. In addition, there are three warning lights around Kogarah which he had in view and which provided 30-35 seconds’ warning time. There were also manholes and platforms on the Up Cess around Kogarah Station.

[171] Mr Singh referred to Mr Bugeja’s statement as ‘fresh allegations’ arising from what he had observed on the CCTV footage. Mr Singh saw the footage on the same day in the afternoon when the Depot Manager and the Team Manager showed it to him. Mr Singh claimed neither of them commented on his actions. The only comments they made were about the conduct of Mr Chawdhury and Mr Kolevski. The Level 5 Investigation commenced and the Depot Manager told Mr Wilmott, the Team Manager, to immediately interview Mr Lynn, Mr Chawdhury and Mr Kolevski the next day (Sunday).

[172] Mr Singh said the CCTV footage was not provided to him or the Union during the investigation, and there was nothing in the allegations which referred to him turning his back on the oncoming trains, and no mention of the CCTV footage. He therefore had no reason to mention it during the investigation. Mr Singh had now closely reviewed the CCTV footage and the comments of Mr Bugeja, Mr Aitchison and Mr Polias, none of whom, he noted, were present on 1 August 2015. Mr Singh agreed the CCTV footage shows times when his back is turned from the direction of oncoming trains. However, had he been asked during the investigation, he would have explained that he and Mr Lynn had agreed that he and the Team members would keep Lookout when he moved from one position to another and vice versa. He was also travelling on the ‘four foot’, rather than the Up Cess, which would have limited his site of the warning lights. Rather, he could see multiple warning lights and platforms and manholes. Mr Singh offered a detailed account of what had occurred by reference to the CCTV footage which I do not reproduce, but which I have myself compared to the CCTV footage.

[173] Mr Singh observed that his Rail Safety worker authorisation was suspended on 7 August 2015 and the disciplinary process was completed 16 months later. During this time, his income was about half of what he had previously earnt. On 10 August 2015, he was notified of an interview conducted by the ONRSR.

[174] Mr Singh said he was not asked to participate in the internal reviews which led to the Level 5 and Level 3 Reports. He did not see the Level 3 Report until November 2017, when it was produced under subpoena. Mr Singh said that at all times during the investigation, he relied on the advice and representation of the Union, including its advice not to participate in a disciplinary interview.

[175] Mr Singh referred again to his 34 years of service with the respondent. He loved his job and was very proud of his long and unblemished service. He seeks reinstatement. He believes that given his age, his ethnic background and Sikh faith, he has virtually no chance of being able to find full-time employment again; let alone on a salary he had with Sydney Trains. He claimed he had told the investigation that he was fully aware of the gravity of the Kogarah incident (note: not his involvement at Allawah) and was fully prepared to do whatever was required for him to return to full duties.

[176] In a second statement, Mr Singh responded to the evidence of Sydney Trains as follows. In respect to Mr Lynn’s statement, he said:

(a) Mr Lynn was the WGL and the boss on 1 August 2015;

(b) he had never heard of a Technical Supervisor, or there being to two Supervisors responsible - one for technical matters and the other for the rest of the work;

(c) he had never worked as part of a Team with multiple Supervisors;

(d) he was not the Team Leader on 1 August 2015 and had never been a Team Leader, while acting as a relief worker;

(e) Team Leader is the leader of staff in the Depot. He was not Mr Lynn’s Team Leader at Sutherland. Mr Ron Kirk was the Sutherland Team Leader;

(f) Sydenham and Sutherland are not the same Team and workers do not work in the same area. Track changes are usually sent to their respective depots;

(g) Mr Lynn was an additional Lookout on 1 August 2015, despite undertaking some track measurements. Most measurements were done by Mr Kolevski and Mr Ivanovski;

(h) Mr Lynn was giving all the instructions that day and he had eight years’ experience at Sydney Trains;

(i) in his experience, the Lookout only blows a whistle when the train is approaching, not as a warning to workers when no train is approaching (Allawah);

(j) he denied Mr Lynn had asked him to report the Allawah incident. The incident had already been reported by the driver. If Mr Lynn wanted the incident reported, he could have done so himself;

(k) he rejected Mr Lynn’s claim that he had trouble understanding him; and

(l) Mr Lynn had never told him he felt unsafe working with him.

[177] In response to Mr Bonatesta’s statement, Mr Singh:

(a) denied that a worker was running from the Up Local as the train approached. The most immediate threat to workers was from a train on the Up Main;

(b) accepted that the photographs he had taken may not have been where the Allawah incident occurred. This was the only access he had to take the photos many months after the incident;

(c) claimed that if Mr Bonatesta was ‘shaken up’, he should have stopped work and sought relief; and

(d) did not recall the train stopping or going very slowly. There is no footage of the train’s movements.

[178] In response to Mr Bugeja’s statement, Mr Singh:

(a) claimed that different workers were watching for traffic while he was moving;

(b) agreed that although he was interviewed by Ms Walker, she did not mention it was a Level 3 Investigation. His understanding was that only internal persons conduct such investigations;

(c) said he answered all Ms Walker’s questions truthfully and to the best of his knowledge and belief;

(d) said the Level 3 Report reference to ‘less than adequate consideration of at risk behaviour’ is a finding not based on an understanding of what actually happened at Allawah;

(e) rejected Mr Bugeja’s reference to his failure to report the incident; and

(f) believed the incident was not reported by anyone as a ‘near miss’.

[179] In respect to Mr Polias’ statement, Mr Singh:

(a) now accepted the Allawah incident occurred at location 13.445;

(b) for reasons earlier stated, he denied his actions were unsafe and inappropriate. His priority was the danger to workers on the Up Main and there were no workers on the Up Local;

(c) claimed that in the 17 minutes of CCTV footage there were two non-stop, fast trains on the Up Main and none on the Up Local;

(d) denied that there was insufficient MSD on the Up Main – there was no protection, which is why he intervened; and

(e) believed blowing his whistle may have put the workers at risk.

[180] Mr Singh set out again in detail his observations of what the CCTV footage shows, which I do not reproduce here as I intend to rely on my own frequent reviews of the footage.

[181] In cross examination, with the assistance of a Punjabi interpreter, Mr Singh claimed he had a clear recollection of the events of 1 August 2015, despite the passage of three years since the incidents. He maintained that in both incidents he had done nothing wrong. There was no ‘near miss’ in the Allawah incident.

[182] Mr Singh accepted he was interviewed for the Level 3 Report, but did not know Ms Walker was conducting a Level 3 investigation which was usually done internally. He agreed he had the Level 3 Report around two months before preparing his statement and he had read the Report twice. He accepted that his case rested principally on the Level 3 Report which supported him (in some places).

[183] Mr Singh did not agree with Ms Walker’s finding that he had engaged in less than adequate behaviour. He agreed with everything in the Level 3 Report, except where it was critical of him. He accepted that Ms Walker commented on the roles and work of each member of the Team. He understood the reference to the Team Leader in the Report was a reference to him and where it quotes him in his interview as being the Down Lookout, he claimed this was incorrect and must have been ‘a slip of the tongue’. Ms Walker later quoted him as saying he was the Up Lookout.

[184] Mr Singh was also taken to his interview with the ONRSR around 19 August 2015 which dealt mainly with the Kogarah incident. He had read the report of the ONRSR, after he filed his statement on 19 July 2018. He had also read the transcript of his interview, and contended it was not accurate.

[185] Mr Singh said the Union had prepared his response to the ‘Show Cause’ notice after speaking to him. The Union produced a draft and he had agreed to it. The Union later told him they could not take his matter further and he then spoke to a private solicitor. Mr Singh accepted that he was offered an opportunity for an interview, with a support person, during the disciplinary investigation. However, on advice from the Union around 10 June 2015, he declined to attend an interview, despite participating in interviews during both the Level 3 investigation and ONRSR processes. He believed he had said everything he wanted to say in the earlier response prepared by the Union and he was satisfied that he had nothing further to add. When he received the letter recommending his dismissal, the Union had prepared a second letter and he was happy with its contents, ‘at the time’. He now believed he should have had legal advice in preparing his written responses. The Union had prepared this unfair dismissal application. Similarly, he was happy with the application’s contents. Mr Singh insisted that in all his responses and in his evidence, he was truthful and accurate.

[186] Mr Singh was taken to the Position Description (‘PD’) for Team Leader Track and Structures – his position at the time of his dismissal. He understood his duties and responsibilities under the PD and accepted them. Specifically, he understood:

  there was a shared responsibility for ensuring safety;

  Sydney Trains’ culture emphasised safety compliance and probity;

  he had other Team members reporting to him and was responsible for ensuring and leading the safety of the Team;

  he was required to undergo periodic safety induction;

  he had a responsibility for ensuring contractors knew and applied their safety obligations;

  he had a duty to implement plans for safe working and communicating safety goals to the Team;

  he managed the SWMSs (Safe Work Method Statements) and ensuring staff adhered to WPPS and safety policies and procedures;

  as a PO, he was very familiar with all Sydney Trains safety policies and procedures;

  he had responsibility to conduct regular Toolbox meetings and Team briefings.

[187] Mr Singh confirmed that as a PO4 he had undertaken refresher courses every two or three years – the last in September 2014. These were designed to keep him up to date with the Network Rules and procedures relevant to his position. He had a detailed knowledge of the documentation relating to track and structures. Mr Singh agreed he had attended a number of safety training courses during his employment, including completing the requirements for PO4 in 2001, Team Leader training in April 2007 and training in Safety Management Systems and Signalling. The PO4 position must also demonstrate experience in leading and supporting work groups, including instruction to subordinate staff. He also had an obligation to promote an ethical approach to dealing with workplace matters and be an example of upholding Sydney Trains’ values and ethics through update briefings. Mr Singh was also aware of the ‘Safety responsibilities, authorities and accountabilities, RAA Matrix’ document.

[188] Mr Singh was referred to a document setting out the senior management positions in Sydney Trains where there is reference to Line Manager. He agreed this was the only position that fitted his role as Team Leader Track Instructor. Under this document he was considered to be a Line Manager. He understood that from time to time he was a Line Manager. However, he believed there would only be one Line Manager at any particular time. He accepted that a Line Manager could be a Team Leader, Supervisor, Manager and a person is always a Line Manager, no matter what other role is being undertaken. Nevertheless, Mr Singh said that he had never heard of Sydney Trains advertising for the position of Line Manager. By reference to Systems Procedures O2 Safety Responsibilities, Authorities and Accountabilities, which Mr Singh had seen and read, he agreed it dealt with each manager’s roles’ safety accountability, including communicating safety responsibilities to workers at site inductions and ensuring safety resources are available and operational. He now agreed that this document references Line Managers.

[189] Mr Singh said he had read the Code of Conduct many times. He understood that he was required to familiarise himself as both a frontline employee and middle management, with Sydney Trains’ policies and comply with them and prioritise safety in the workplace.

[190] As to the Kogarah incident Mr Singh accepted the Level 3 Report identified the five members of the Team and their substantive roles. While maintaining his primary role was to act as Lookout for the Up Local, he was the most senior employee in terms of experience on that day. He conceded he was paid the highest of all the employees (at 30 June 2015 - $161,959, including overtime). The base salary was $83,000. However, on 1 August 2015, he was under the instructions of the Supervisor and PO. Despite the Level 3 Report identifying confusion that day as to who was the Supervisor, he had no doubt it was Mr Lynn. Mr Singh was taken to Ms Walker’s comment at para 67 at page 38 where she said:

‘Similarly, when the first incident occurred at Allawah, the Sutherland team leader who was acting as the up look-out, was apparently reluctant to report the incident as a near miss. This is understandable, given that he was reportedly the person who missed the warning light. It is acknowledged that the PO has the responsibility of reporting safety issues and each team member has overall responsibility to do so. However, the team leader as management's representative on site, is encumbered with the higher level of responsibility to report. It is likely his reluctance, or at least his lack of initiative to report, influenced the PO/LO and other members of the team. It is the investigator's view that the team leader shares the lightest portion of the responsibility for not reporting the first Allawah incident, which would have potentially avoided the Kogarah incident.’

[191] Ms Walker said Mr Singh was the most senior person on site and was therefore management’s representative on the day. As a Team Leader he had a higher level of responsibility to report incidents. Mr Singh acknowledged the other members of the Team would be looking to him as to what should be done in relation to the Allawah incident. However, he denied he shared the largest responsibility for not reporting the incident because:

(a) Ms Walker got the positioning of the workers wrong;

(b) the train driver had reported the incident to the Controller;

(c) the incident was not considered to be a ‘near miss’ by anybody; and

(d) if it had been serious, work would have been stopped by the Controller.

[192] Mr Singh was taken to the transcript of his interview with the ONRSR on 19 or 20 August 2015. He was accompanied by Mr Jonathan Parker from the Union. Mr Singh answered ‘yes’ to the following question:

‘Okay, so obviously you have a bit of experience around the Sydney trains network, especially the whole of Sutherland, up to Sydenham, area. You are pretty familiar with it and you certainly have got experience with the track and the whole metropolitan environment.’

[193] Mr Singh had told Ms Walker that Mr Ivanovksi and Mr Kolevski were doing the measurements and he was the Up Illawarra Local Lookout. Mr Lynn was recording the measurements. Mr Chawdhury was the PO and the Down Local Lookout. It was Mr Chawdhury’s primary role to plan and protect the workers. Mr Singh claimed it was Mr Chawdhury alone who decided on the Lookout work. He had not objected at the time, because for 33 years that was how it was done in this area. Mr Chawdhury was required to identify the number of Lookouts at their location and MWTs. He accepted that the Team was experienced, as three of the Team were PO4 and one other was a PO4, but had been regressed to PO1. Mr Singh had been a PO4 since 2007. It was Mr Singh’s evidence that no one in the Team objected to the WPP because the Network Rules allowed Lookout work for this area. Lookout working had always been utilised for this purpose. When asked about Sydney Trains’ contrary view, Mr Singh still believed Lookout working was appropriate, if managed properly.

[194] Mr Singh agreed he had signed the WPP and had been briefed about it, without questioning it. This was because he relied on Mr Chawdhury’s knowledge of the area. The Lookouts were to ‘Bi di’, meaning bi-directional on Up Lookout and Down Lookout. Mr Singh continued to maintain the references in the WPP to ‘Site Supervisor or Team Manager, Kane, and Andy and Subeg’ were not there when he signed the WPP. The WPP also referred to two warning methods: ‘Whistle/horn and voice/touch’, and he had a whistle and horn that day, as did Mr Chawdhury. The document also referred to MWT calculations (15 seconds) which is a requirement under the Rules (NWT310). Mr Singh agreed he had undertaken these calculations many times before. The track speed was 100km an hour and the MSD was 420 metres. Mr Singh agreed Mr Chawdhury’s calculations were very conservative, because an additional Lookout changes the calculation by adding more time.

[195] In respect to the Union’s response to the ‘Show Cause’ letter, Mr Singh said his version of events demonstrated that the Team had been working safely, according to the WPP. However, the WPP records the need for two Lookouts, while he had claimed there were three – himself, Mr Chawdhury and Mr Lynn, (when he was not recording measurements). Mr Singh accepted he had told the ONRSR investigators that there had been no need to refer to the diagrams in the WPP, because all the workers were experienced and familiar with the track.

[196] In his ONRSR interview, Mr Singh was asked ‘should a train come, how do you warn workers?’ He answered ‘I have at least two warning devices, one hooter (can be heard up to 2-3 km away) and one whistle.’ Mr Singh claimed his answers were short because he was shocked by this interview and intended to give short answers as he ‘knew that they were plotting against me and I did not do anything. I was not involved in the Kogarah incident and Allawah, and they send regulators’ (the highest authority).

[197] Mr Singh was questioned on the Level 3 Report and Ms Walker’s handwritten notes of his interview. Mr Singh agreed that he had told Ms Walker that no one had asked any questions about the WPP and he ‘signed the papers’ in the briefing on 1 August 2015. Ms Walker had found:

‘Lookout working was an inappropriate method of protection for significant sections of track covered by this task, where it is prohibited by the Hazardous Location Register. A higher level of protection should have been used.

Firstly, the protection officer, which was Mr Chawdhury, conducted a less than adequate safety assessment of the task in selecting Lookout working as the method of protection.

The four other qualified protection officers in the work group did not challenge the use of the Lookout working as a method of protection for this work.

The PO defaulted to the use of Lookout working because on this occasion the PO, which is Mr Chawdhury, defaulted to the use of the Lookout working because, in his experience, that was the usual method of protection applied when conducting track measurements. This is supported by the fact that four other people in his work group, three of whom were accredited level 4 protection officers, and one of whom was an accredited level 1 protection officer, accepted and did not challenge this method of working. They had the opportunity to do so at the BMC and again at the two pre-work briefings but there no evidence of this occurring. This worker applied the use of Lookout working, over three hours, leading up to the incident without recognising it as inappropriate.’

[198] Mr Singh accepted Ms Walker criticised Mr Chawdhury and the other PO4s, but he questioned her knowledge to do so. She should have asked someone who was there. He did not accept the criticism of him. Mr Singh rejected the criticisms that if you cannot get MSD and MWT, Lookout working was inappropriate. What they did that day was ‘not against’ the Rules. Mr Singh was referred to NWT310 which reads at page 3:

Placing Lookouts

The Protection Officer must:

  make sure that the location of Lookout(s) and the visibility conditions give Lookouts a minimum of two seconds to see approaching rail traffic, and

  make sure that when rail traffic approaches, Lookouts can warn workers in time to allow them to:

  react to the warning of the approach of rail traffic, and

  move themselves and their equipment to a safe place and remain there for 10 seconds before the rail traffic arrives.

To give enough warning time, one additional Lookout may be used and an additional five seconds of warning time may be added to any calculation of total time to see, move and be in a safe place for all workers and their equipment.

WARNING

If these minimum warning time calculations cannot be satisfied, then Lookout Working must not be used.’

[199] Mr Singh maintained that there were three Lookouts and it was not against the Rules, because they had a local arrangement. Mr Singh then claimed Mr Chawdhury and Mr Lynn were the nominated Lookouts and he was the additional Lookout. It was noted that Mr Lynn and Mr Chawdhury, had neither a horn nor whistle.

[200] Mr Singh insisted he was not a Line Manager and he was not the Supervisor on 1 August 2015. At the time, Mr Kinder was the Line Manager who was required to consult the Register when planning the work. Mr Singh was asked to reconcile his evidence that at the time he signed his statement he had not read the Level 3 Report, with his other evidence that he had seen the Report when reading Sydney Trains’ evidence. He agreed his statement evidence was incorrect, and his recollection may not have been very good.

[201] Mr Singh reiterated that Mr Lynn was the Supervisor, although he had only been at Sydenham for eight weeks, but he (Mr Singh) previously worked in the area for a long time. He accepted it was not surprising that he was considered to be one of the leaders of the Team. However, he and Mr Chawdhury were the additional Lookouts and Mr Lynn was the Supervisor and the Lookout. Mr Singh conceded that Mr Chawdhury never said in the briefing that day, that he was an ‘additional Lookout’. Mr Singh further accepted that he was not an ‘outsider’, because he was familiar with the practices and local arrangements around Sydenham. Mr Singh conceded that his claim of questioning of Mr Chawdhury about checking the Register, was not mentioned in any of his statements or interviews, or in his ‘Show Cause’ letter. Mr Singh said he recalled this exchange with Mr Lynn when preparing for his legal action, notwithstanding it was a highly relevant matter when his job was in jeopardy and he had never mentioned it before. Mr Singh claimed that it was not his responsibility to check the Register. It was Mr Lynn’s, Mr Chawdhury’s and Mr Kinder’s responsibility. Mr Singh agreed that MWT and MSD were very important issues. He was comfortable with Lookout working, as he had been doing this for 30 years. He said that he, Mr Lynn and Mr Chawdhury had reached an agreement as to the Lookout working and that Mr Lynn had said:

‘When the measurement finishes, I'll keep Lookout and you walk to the next measurement and stop there and start looking out. I will then move forward. When I'm about 30 metres away, I'll Lookout as well as you. You shouldn't write anything. You only look at the trains. When the measurement is done, everyone moves to the Up Cess and you Lookout again while I move forward’

[202] Mr Singh accepted he had not mentioned this conversation in his ONRSR interview, the Level 3 interview, or in his ‘Show Cause’ response from the Union.

[203] In answer to a question from me about his evidence that Mr Lynn was in charge, when in para 37 of his statement he seems to be the one directing everyone, Mr Singh responded:

‘At places where we can’t meet Minimum Sighting Distance (MSD), I’ll act as an outer LO (Look Out) and Andrew you be inner LO for us. When the measurement finishes I’ll keep a lookout and you walk to the next measurement station and stop there and start looking out. I will then move forward. When I’m about 30 metres away I’ll look out as well as you. You shouldn’t write anything. You only look at the trains. When the measurement is done everyone move to the Up Cess and you look out again while I move forward.’

Mr Singh agreed that if the Lookout method and the HRCLR had said that the work was unsafe, he would not have used it. He then referred to Sydney Trains becoming self-insured.

[204] Mr Singh claimed that no one from Sydney Trains ever told him that the Lookout method should not be used for track measurements, despite knowing that if there is no MSD/MWT, Lookout working should not be used. He accepted that as a PO4, he was completely on top of the Network Rules, including about details of MWTs. It was put to Mr Singh that Mr Lynn could not have been the primary Lookout if there was additional MWT and he could not have been looking both ways and doing track measurements. He answered that it was Mr Lynn’s responsibility to see the oncoming train and take the workers out (of danger). He agreed Mr Lynn would have to be in a position to give a 15 second warning. Mr Singh acknowledged that NPR711 insists that ‘Lookouts do not work other than to look and give warning about the approach of traffic’ and they must have two independent forms of effective communication with the workers. It was noted Mr Lynn had neither a horn nor whistle.

[205] When Mr Singh was asked why the WPP stated two Lookouts, not three, he replied there was no Rule to prevent it. He agreed that an additional Lookout must be able to be seen by the primary Lookout. If there was a curved track, this could not happen. Mr Singh was asked about the Rule which requires a Lookout to keep a continuous lookout for the approach of traffic and that Mr Lynn could not have ‘continuous’ look out because he was recording track measurements.

[206] Mr Singh was invited to change his version of events in respect to the Allawah incident after two and a half years and having viewed the CCTV footage. He declined to do so. He agreed he had prepared his statement after reading the Level 3 Report, but he did not take into account the CCTV footage. He had since reviewed the footage, two or three times, and ‘didn’t find anything which was wrong’. By reference to the photos of where he said the incident took place, he claimed to have identified where each Team member was placed. He further claimed measurements were being taken which were unsafe and without design on the City side 30 metres down the track. He agreed the photos were taken from the Allawah end of the platform looking towards the City. He was located in the left hand side facing country with a warning light and looking at the Up Cess on the City side of the Bridge. He accepted the incident did not occur at the Bridge. After a period of some confusion, Mr Singh ultimately conceded that he could not recall exactly, but it happened on the City side. He agreed his photos do not show exactly where the incident occurred and it was nowhere near the Bridge. It was put that the positioning of the warning lights from the maps, meant Mr Singh could not have been located where he claimed he was, and he must have been at the position point 13.445. He said ‘maybe, yes’.

[207] Mr Singh was shown the CCTV footage of the Allawah incident and he identified the persons shown and where they were located. It disclosed that he and Mr Chawdhury were wearing yellow arm bands designating them as Lookouts; Mr Lynn was not. Lookouts are required to enter the danger zone first. Mr Singh did not do so. He claimed he was the Lookout Country side. He is shown looking at the warning light in the battery area (signal box) and had very clear view to the other warning light 450 metres away. He agreed that when Mr Lynn called him over, he was no longer looking at the warning light and he had turned his back to any trains on the Up Local. He denied this was in breach of the Rules, because Mr Lynn was looking at the other warning light.

[208] As the footage progressed, it disclosed two Team members in the ‘four foot’ of the Up Local, without any protection. Mr Singh claimed Mr Chawdhury was looking at the warning light and moved to the Down Local and when Mr Lynn was on the Up Local, he waved his hand to call him over. However, the wave of the hand is not seen. The Rules say that, if the Lookout is to move, he/she must speak to Mr Chawdhury. This could not have happened, but Mr Singh claimed he was not in breach of the Rules. The footage showed another warning light under the Bridge in the ‘six foot’, between the Up and Down Locals. Mr Singh moved behind the pylon and could not be seen turning around to look at this warning light.

[209] At 9.57.50 a person in orange is seen in the background immediately after the train passed, walking along the Down Local. Mr Singh denied this was him and said it was Mr Kolevski. Mr Singh was asked if the three people seen in the top of the frame at 9.56, were Mr Chawdhury, Mr Ivanovski and Mr Kolevski. He agreed it was, but they had not started measurements. The group were walking together on the Down Local. Mr Singh agreed it was dangerous if he was walking in the ‘six foot’, between the Up and Down Locals, and there was a train on the Up Main. He claimed Mr Lynn was protecting the Up Local behind in the Up Cess area, and looking at the warning light, although this was not visible from the footage and it was not possible to identify when Mr Lynn was at this point. Mr Singh accepted that he could only be guessing where Mr Lynn was, if you go past the Bridge and around the curve. Mr Lynn could not have called Mr Singh over at that point. He could have only done so if he was on the Up Local. Mr Singh agreed that the CCTV footage did not show him standing in the Up Cess. He was asked about this comment in his statement:

‘My position meant that I was well placed to look for any train coming up the Up Illawarra local, but I had limited view of the Up Illawarra main, due to a blind spot caused by a bridge blocking my view.’

He claimed that despite his role being to look at the Up Local, he still needed to look up at the Up Main. He agreed what he could not do, was look at the Up Local because of the Bridge and track curvature. He claimed he was looking at the warning light in the Up Cess. If this was correct there was no bridge blocking his view of the Up Main. Mr Singh accepted that his photos showing persons adjacent to the Bridge, could not be where the incident occurred if the Team were around the warning light area in the Up Cess.

[210] Mr Singh was asked about a number of things he is claimed to have done wrong:

(a) He denied turning his back to the warning light and the Up Local.

(b) He did not use the horn or whistle to get the Team to move to a safe place (the Up Cess).

(c) He left no one to look at the Up Local.

[211] Mr Singh agreed he told Ms Walker that he was watching the Up Main to protect the Team (inconsistent with his later evidence). Mr Singh claimed that it was a ‘slip of tongue’ when he told the ONRSR interviewers:

‘Andrew yes, so I went Down Local and looking up on the Up Local, because most of the trains were on the Up Local on that day.’

He said most of the trains were going on the Up Main, but he had further said:

‘Concentrate on the locals rather than going over onto the mains.’

[212] Mr Singh claimed that although he did not tell Mr Lynn about his safety concerns, he was under stress in the ONRSR interview and could not explain in a proper way what had happened. He could not remember saying that it was ‘a stroke of bad luck’ that the trains came down the Up Local at that time. Mr Singh denied he had ‘no idea’ how long the warning light had been off (indicating a train is approaching). If it had been 14 seconds, he agreed the Team did not have enough time to get to a safe place. He claimed he hand signalled the driver and they were in a safe place in the ‘six foot’ (not the Up Cess).

[213] Mr Singh denied apologising to Mr Kolevski and Mr Ivanovski for missing the warning light. He agreed he was familiar with the term ‘near miss’ and the suite of safety procedures which require notification of certain safety incidents. In any event, he did not accept the Allawah incident was a ‘near miss’. Mr Singh could not recall if Mr Kolevski was angry with him about the incident. He accepted Mr Chawdhury was upset. Putting all the circumstances together, Mr Singh did not accept there was a reportable ‘near miss’. He did not agree with Mr Walker’s Level 3 finding in that respect. He was asked about this comment of Ms Walker:

‘The POLO - this is page 16 - returned to the group at the Up Cess and asked them what happened. He reported that the up Lookout which is you, at the time apologised, stating that he had missed the light. The up Lookout assured the group that he would make sure that it did not happen again. The PO told the group that he had to be more careful.’

Mr Singh explained that he had meant he was sorry the driver had reported it. Ms Walker also recorded that the Team were expecting someone to arrive to respond to the incident, but no one did. He agreed with this conclusion.

[214] Mr Singh claimed that the CCTV footage was much clearer on his home computer than the same footage showed in the Commission. This was why he said Mr Lynn had waved at him to move over. Mr Singh continued to maintain Mr Lynn was the additional Lookout, not the primary Lookout, meaning he was the outer Lookout, the one furthest from the workers. Mr Lynn could not have been the primary Lookout because he was not at a spot which gave the Team 15 seconds’ MWT. Mr Singh said he had used the term ‘additional’ Lookout by picking up that term in the Rules. In any event, Mr Singh conceded the WPP did not record three Lookouts - only two.

[215] Mr Singh was taken again to the CCTV footage, this time on a computer screen. He agreed it was the same footage viewed yesterday and what he had watched at home. He identified the garb worn and equipment carried by each person shown in the footage. At 9.55.28 Mr Singh claimed Mr Lynn was waving to him, but this is not evident from the footage. Mr Singh sought to explain this, by saying that this was different to what he observed on his own computer, because it depends on how one loads the computer. It was put to Mr Singh that the person he identified as waving to him, was Mr Ivanovski, who was carrying a measuring stick. He stated again, that the video which the Commission saw the day before was different to what was being shown on the computer and what he saw on his home computer. The footage also showed both Mr Ivanovski and Mr Lynn with their backs to the warning light, meaning they could not be performing the role of Lookout. Mr Singh claimed again that the footage was not the same he viewed the day before. Mr Singh corrected a question asked of him about the Up Cess being a safe place. The Up Cess was unsafe, as the cutting was too narrow to be safe. Mr Singh was taken to the HRCLR and the description of the relevant section of the track and the risks identified in the Register as ‘Restricted visibility’ and/or ‘no safe places at Allawah Station coming Up Illawarra Local 13200 to 13600 Protection officer shall assess warning times in this area and implement a high level of protection if required.’ Mr Singh conceded that the Register says that there is no safe place at the location of the Bridge. This was consistent with the correction he had just made that the Up Cess was not a safe place.

[216] Mr Singh acknowledged that the WPP identified Lookout working for both the Up and Down Locals, despite the Register’s prohibition because of ‘inadequate warning time for Lookout working’. Mr Fagir objected to questions on this matter as being contrary to Mr Polias’ own statement. Mr Fagir said that this was the reason why Sydney Trains issued a memo on 7 August 2015, in direct response to the incident which stated:

‘The recent near-hit incident has highlighted a potential gap in the process. Effective immediately staff must not perform Lookout working for planned working areas designated as unsafe to do so in the HRCL - that is the register - unless their worksite protection plan is reviewed and countersigned by their local track access coordinator, Rail Safety Coach or a qualified protection officer from another discipline. The relevant sections of the register must also be attached to the protection officer's handbook.

[217] Mr Singh accepted that the ONRSR Report stated that where there were inadequate MWTs, Lookout working is not to be used. Mr Singh was asked why, if he was concerned about the appropriate method of safety, he had asked Mr Chawdhury ‘Have you checked HRCLR.’ He claimed he asked this because changes to the Register occurred regularly. After being referred to Mr Chawdhury’s interview in the ONRSR investigation, Mr Singh agreed, then said he could not recall, if Mr Chawdhury expressed concern to him that they may be in trouble and the authorities may be called in. He denied having said ‘May be driver upset he didn’t put the up’. Mr Singh agreed with Mr Chawdhury when he had said:

‘I think the reason is because we thought we were going to get away with it. That is the real reason because we didn't want to get in trouble, that's why it didn't get reported.’

[218] However, as he explained, he was sorry because he had to intervene to stop the workers on Down Local and Up Main. Mr Singh denied Mr Chawdhury’s statement in which he said:

‘But we have got to measure sometime hundred metre (sic) over that when the measure go away and in cutting some of it most of the time you have got manhole - if not you go on top of the cuttings.  So we are not going to die there.  We know safety.  And we are on the line.  We only do rail safety distance there and minimum warning like we have got it.’

Mr Singh denied he had said anything about losing his safety ticket and not being allowed overtime work on weekends.

[219] Mr Singh did not accept Mr Lynn’s evidence that he had not notified of a ‘near miss’ because:

‘Yes, he didn't give the right of way. Then I said, 'Subeg, how come while there are still people are on the tracks, six foot, and he moved down a local track, why is that? If the warning light is off everyone should be on the upstairs. Why are people still there?' Then he says, 'Okay, sorry, my apologies. I missed the warning light'. That's what he told me that time.’

[220] Mr Singh claimed the incident was not a ‘near miss’ because there was no one on the track and the Driver and the Response Commander did not report it as a ‘near miss’. Ms Walker has said a ‘near miss’ includes:

‘High potential incident determination reporting which defines a high potential incident as 'a worker safety incident where the likely and credible outcome could've been a fatality or permanent disability'.

This incident would appear to fit the definition of a high potential incident, however it was not reported.

Ratings of incidents reported are categorised A to E.  Categories are based on actual outcome, not potential outcome.

This is a false indicator of the seriousness of the incident.’

[221] Mr Singh acknowledged he was aware of what Ms Walker had said about the incident, particularly his role of not observing the warning light. He rejected Ms Walker’s description of the incident, because she was not there. It was a minor incident. He did not accept he had any role in reporting the incident. He was not the Supervisor or the PO. He now does not accept he was a Team Leader and management’s representative on the site.

[222] Mr Singh disagreed with Ms Walker’s summary that his actions in not reporting the Allawah incident and fulfilling his responsibility, was a contributing factor to the Kogarah incident. Further, she had said that all five Team members demonstrated at-risk behaviours and did not correct their own or other’s behaviours. He disagreed with this comment. Mr Singh would not accept that any of the Team had done anything wrong. Mr Singh acknowledged that the only parts of the Level 3 Report he disagreed with, were those which found wrongdoing by him.

[223] When shown the CCTV footage showing all the Team walking in the same direction, with no one looking on the Up Local, Mr Singh claimed the vision was not very clear. He was shown the ten seconds of footage which demonstrated he and Mr Lynn were walking in the same direction towards the City and no one was Lookout for the Up Local. He claimed that the footage was inconsistent with his timeline. He could not say who was in the footage. Mr Singh said he could still see one or two warning lights from an angle. He then accepted that the warning lights were not on an angle, but were perpendicular to the track. He agreed that what he was doing was in breach of NWT310 and NPR711, although he claimed he had an arrangement with Mr Lynn that if he moved, Mr Ivanovski and Mr Kolevski would look to the warning lights and not start work until the protection was in place. This was not what the CCTV footage revealed. He believed Mr Chawdhury, as the PO, was aware of, and gave permission for this arrangement. In any event, Mr Singh said there were manholes and platforms in the Up Cess area. Mr Singh agreed that he did not mention this arrangement during the Level 3 Investigation, in his ONRSR interview, or in his ‘Show Cause’ letter.

[224] Mr Singh rejected Ms Walker’s conclusion as to the risk behaviour of the Up Local Lookout not looking back for up to 20 seconds. His explanation was that he knew Mr Lynn, Mr Kolevski and Mr Ivanovski were looking at the light. When he told the ONRSR investigators he was in the Up Cess, this could not be correct because he was on the Up Local. He explained it was a safe place, had it been necessary. As to the finding that the whole of the Team demonstrated an element of complacency being inconsistent with being alert to issues of safety, Mr Singh replied:

‘At that time specially Kogarah area, and I was very careful for myself so not to miss the light, so my intention was only to look the warning light and also remind Andrew when I move, Andrew is look the warning light, so I cannot – they don't have any chance to look around what somebody is doing because Andrew is there to look after people.’

[225] Mr Singh insisted he wanted full reinstatement to his former position and he would not accept any other role, or any monetary offer to settle this matter. He maintained that as he had done nothing wrong and made no mistakes during the incidents on 1 August 2015, there was nothing to apologise for. Nevertheless, he had learnt many things from this experience. Mr Singh agreed he had made no attempts to look for alternative employment.

SUBMISSIONS

For the applicant

[226] Mr Fagir opened his submissions by putting that notwithstanding seven hearing days and voluminous documentary material, this case was not all that complicated. This is so because it involves two incidents on a single day (1 August 2015) in which it is alleged were caused by Mr Singh’s ‘gross negligence or wilful defiance of safety rules’. However, the picture painted by Sydney Trains, and Mr Bugeja in particular, failed to take into account systemic failures, the contributory conduct of other workers and ignored any real context. The result was that the narrative was ‘quite misleading.’ Mr Fagir opined that the true position was that Mr Singh and his work colleagues did nothing out of the ordinary on 1 August 2015. The Kogarah incident occurred because a very experienced PO failed, for mysterious reasons, to spot an approaching train. As to the Allawah incident, it was relatively minor and was caused by a worker carrying out measurement work on an unprotected line. This arose from either a direction from the Supervisor, or the Supervisor allowing it to happen.

[227] Mr Fagir submitted that rather than any gross negligence on Mr Singh’s part, the incidents disclose deficiencies in the system for track measurements at the time and which were later recognised and corrected. None of the respondent’s witnesses had any regard to these systemic failures. Mr Fagir observed that despite the difficulty Mr Singh had in obtaining both the Level 3 Report and the ONRSR Report, both reports highlighted these systemic failures. This was why he had to spend considerable time in dealing with the reports in cross examination of the witnesses. Mr Fagir noted that there was evidence of persons who were present on the day, which contrasted to the opinions of Mr Bugeja and Mr Polias, who were not present and who offered subjective opinions about what was shown on the CCTV footage, without establishing what Network Rules had been breached. The Commission would not accept Mr Bugeja’s opinion as fair or accurate. His statement evidence was inconsistent to what he later said in cross examination.

[228] Mr Fagir analysed the evidence of each of Sydney Trains witnesses.

Mr Bonatesta

[229] Mr Fagir noted that Mr Bonatesta’s statement was made two and half years after the event. He described the Allawah incident as a ‘near miss’, but in oral evidence had said, ‘the worker jumped out of the way of the train’; later clarifying that he saw the worker moving off the rail onto an adjacent line. Mr Bonatesta conceded that his knowledge of the Rules was that a ‘near miss’ must be reported immediately after it occurs. Work is stopped and an investigation is commenced. He accepted the importance of conveying clear and accurate information to the Network Controller. In fact, Mr Bonatesta did not report a ‘near miss’; rather, he did not know if he considered it a ‘near miss’. He had not sought to engage the emergency brake, as would be usual in a ‘near miss’ scenario. He did not report it as a ‘near miss’ until his statement for these proceedings. Mr Fagir submitted that Mr Bonatesta’s evidence cannot be reconciled with the objective record; that it was not a ‘near miss’. The worker was well out of the way, and it just gave him a ‘bit of a scare’. Further, Mr Bonatesta’s statement does not sit comfortably with the evidence of the applicant and Mr Lynn as to the positioning of the workers at the time – there was no reason for any work activity on the Up Local.

Mr Lynn

[230] Mr Fagir referred to the debate as to whether Mr Lynn was the Supervisor that day. It seems common ground that he was. Mr Fagir submitted that parts of Mr Lynn’s evidence were plausible and supported Mr Singh’s version of events, but other parts of his evidence was incomprehensible and unreliable, particularly his account of the movement of the workers at Allawah which was very difficult to follow. There were also inconsistencies in the letter from the Union sent on his behalf, to his evidence in the proceedings. Further, he had clearly said at the time there was no ‘near miss’ and two and a half years later he now claimed he was unsure. Mr Lynn had acknowledged he should not have allowed a worker to take a measurement on the Up Main as it was dangerous. He claimed he had apologised to Mr Bugeja, but Mr Bugeja had no recollection of such a conversation.

[231] On the other hand, Mr Fagir identified five features of Mr Lynn’s evidence which significantly support Mr Singh’s case and which the Commission would accept:

(a) allowing a worker to take a measurement on the Up Main, without protection was wrong and dangerous;

(b) there was nothing done that day which was out of the ordinary or in breach of safety rules;

(c) the arrangement for what occurred when a Lookout moved. Mr Lynn agreed that when a Lookout relocates, either the Team moves to a safe place, or someone else keeps Lookout while the original Lookout moves. It was the second option used at Kogarah. Mr Fagir noted the debate about the lack of procedure for moving worksites identified in the Level 3 Report;

(d) there is no Rule preventing a Lookout from speaking to other Team members, despite Mr Polias’ evidence to the contrary; and

(e) Mr Lynn had not checked the HRCLR as it was the responsibility of the PO and the planner of the work, Mr Kinder, to do so in advance.

Mr Polias

[232] Mr Fagir observed that generally, Mr Polias’ evidence was at some points very careful and pedantic. At other times, his evidence was the opposite and he was forced to concede his evidence was incorrect. His evidence should be approached from the standpoint of his reluctance to give any evidence prejudicial to his employer’s case. As to the Allawah incident, Mr Polias had said:

(a) Mr Singh was in a position he should never have been in;

(b) even in this position, Mr Singh should have used his whistle or horn and have the workers move to a safe place;

(c) Mr Polias accepted there was no Rule or clear requirement in the circumstances. He had only applied his own view of what should have happened;

(d) workers in the field, under duress, sometimes make wrong decisions;

(e) he was not sure why it was important to be clear about the exact location of the Allawah incident; and

(f) Mr Polias had not even attended the location. The photos attached to his statement were taken from a patrol vehicle passing through the area.

[233] Mr Fagir criticised Mr Polias about the Kogarah incident by noting his evidence was based entirely on what he had observed. He then formed his own opinion from two and a half minutes of CCTV footage, without any knowledge of what arrangements the workers had made that day. However, the Commission might accept Mr Polias’ other oral evidence about the Rules; namely:

(a) Mr Singh did not plan or supervise the work and had no responsibility to check the HRCLR himself;

(b) there are areas where Lookout working is prohibited, but Allawah and Kogarah are not in that category. However, there is still a requirement to ensure MSDs, safe locations and warning lights;

(c) the level of protection was ultimately the responsibility of the PO to assess;

(d) the Network Rules do not deal with Lookout working on moving worksites;

(e) he generally agreed with all of the Level 3 Report’s findings; and

(f) the responsibility to report a ‘near miss’ was with the Supervisor and the PO, although Mr Singh should have reported a ‘near miss’, if the Supervisor or PO did not.

[234] Mr Fagir pointed out that as a result of an internal review, shortly after the 1 August 2015 incident, there was now an instruction that the WPP must be countersigned by a second person. Mr Polias accepted that his view of the CCTV Kogarah footage did not disclose Mr Singh facing the opposite direction to approaching trains and there were other times he can be seen looking straight down the line and at the warning lights.

Mr Bugeja

[235] Mr Fagir observed that Mr Bugeja intended to give the impression he has a total, unwavering, uncompromising commitment to safety, and a thorough understanding of the Network Rules and zero tolerance for breaches of safety rules. He claimed to have been shocked and disgusted by Mr Singh’s conduct. However, Mr Bugeja’s statement had been carefully crafted to advance Sydney Trains’ case, without making any real effort to inform the Commission of the relevant facts and circumstances.

[236] Mr Fagir submitted that Mr Bugeja was an unreliable witness based on the following evidence:

  At the outset he downplayed the role of the Supervisor, but then introduced a novel concept of a Technical Supervisor (Mr Lynn) and sought to contrive Mr Singh’s role as Team Leader was really a second Supervisory role - one dealing with safety and protection and the other dealing with the measurements. He then claimed the concept of Supervisor was not utilised at all on track and civil work and had to backtrack when shown his own memo on the matter. Ultimately, Mr Bugeja accepted that having two Supervisors would result in ambiguity of responsibility and the Supervisor should be one person. Mr Fagir submitted that Mr Bugeja’s incorrect evidence was intentionally designed to avoid a major hole in the respondents case - that the Supervisor got away with a ‘slap on the wrist’ and Mr Singh was sacked.

  Mr Fagir said Mr Bugeja’s evidence changed from time to time to suit his case. Further, he was unclear as to the safety rules and procedures; for example, he had made the decision to dismiss the applicant because of his mistaken belief that Lookout working was prohibited in the areas. Another example, was Mr Bugeja’s belief that the warning lights had nothing to do with Lookout working. This was directly contrary to Mr Polias’ evidence and the Rules themselves. He was not even sure if the MWT was 15, 20 or 25 seconds. Mr Fagir said that far from being someone with a clear understanding of safe working, Mr Bugeja only had a broad grasp of what the Network Rules provide for.

[237] As to the HRCLR, Mr Bugeja did not know if Mr Lynn or Mr Kinder had checked the Register, but insisted nevertheless, that Mr Singh was required to do so, when he was not. Mr Bugeja could not point to any Rule which obliged him to do so. He was hardly ‘a crusader for safety’. Further, Mr Bugeja ignored evidence which supported Mr Singh’s position and took no steps to investigate whether his version of events was true or false.

[238] Mr Fagir said that Mr Bugeja did not review any other CCTV to check if other teams worked in the same way the Team did that day. He took no steps to investigate whether the Team’s actions that day were custom and practice. Further, Mr Bugeja failed to take account of the systemic failures identified in the Level 3 Report and that 14 of the Report’s 15 recommendations were implemented, including a review of processes for the WPP. Ultimately, Mr Fagir submitted the point was that Mr Bugeja was not present on the day, he offered a series of unexplained opinions on what he saw on the CCTV footage. It was impossible to accept Mr Bugeja’s evidence as true, given he claimed to have a zero tolerance to safety breaches, but undertook no enquiries to satisfy himself on the various roles of the Team members that day.

[239] In respect to the photographic and CCTV evidence, Mr Fagir accepted that such evidence can be very useful, but where this evidence is unclear as to perspective or distances, or taken some time after the event, such evidence should be treated with some caution.

[240] In this case, the witness evidence of those who were actually there, is to be preferred. Mr Singh had traced and explained each step of the footage and described what had occurred. Mr Polias’ photographs were taken some distance away from where the incident had occurred (in answer to a query from me, Mr Fagir acknowledged that the applicant was wrong about the CCTV footage being different to that which he had viewed on his own computer). One example where the footage was unclear was where the CCTV does not appear to show Mr Lynn moving Mr Singh on and he then moved. Mr Fagir believed from his own viewing, that this is what occurred. Mr Fagir accepted that the Level 3 Report and the ONRSR Report are significant; but it does not follow that every proposition in them is correct. It should be remembered that it was Mr Singh who had sought these reports and in respect to the ONRSR report it is from an independent investigator. The applicant had addressed all of the issues in the reports, whereas Sydney Trains had not.

[241] Mr Fagir also pointed out that given the applicant’s poor grasp of English, it is appropriate to understand that various things he said, may have been lost in translation. Mr Fagir noted that from the reliance by Sydney Trains on the exact location of the Allawah incident, it is not immediately apparent as to its significance. Even the Level 5 Report describes it at 13.800. This was wrong. The Level 3 Report said it was 13.445. However, the point of the distinction is not apparent, particularly as it is not even clear that 13.445 was where the measurement was to be taken.

[242] Mr Fagir addressed each of the five allegations against Mr Singh by reference to the evidence.

Allegation 1 - During the course of planning and carrying out the work, you utilised Lookout working method of protection in locations that had insufficient MWT and MSD.

[243] It was now obvious that Mr Singh did not plan or supervise the work. Further, it was clear Mr Lynn, Mr Chawdhury and Mr Kinder had an express obligation to check the HRCLR and determine whether Lookout working was appropriate. There was no document to suggest Mr Singh was obliged to check the Register. Mr Fagir accepted that the applicant had a general obligation to take care of his own and his colleagues’ safety. However, the evidence suggests that Lookout working is regularly carried out in these areas. All the workers accepted the practice was perfectly normal and had been performed in this way for years. This was recognised in the Level 3 Report. There was no reason for the applicant to have a concern or suspicion. Moreover, Mr Polias had reviewed the WPP and gave it 91/100.

[244] Mr Fagir submitted that even if Mr Singh had checked the Register, there was no Rule preventing Lookout working in these areas. Without being prompted, Mr Polias agreed this was the case. Further, Mr Polias had criticised Mr Singh for having his back to the warning lights, but not for the whole of the time. This evidence should be accepted. As warning lights are installed at Kogarah and Allawah, it is anticipated that Lookout working was used in these areas, where the warning lights will be used to obtain MWT. This is recognised by the Register when determining the level of protection appropriate to a specific section of the track.

[245] Mr Fagir noted that even the changes introduced, post 1 August 2015, do not prohibit Lookout working in these areas, but if you are intending to use this method, you need to speak to the Rail Safety Coach. Mr Bugeja himself explains from the CCTV footage, how Lookout working could be used, notwithstanding the curvature of the track and by using the warning lights to achieve MWT; yet two and a half years later, Mr Bugeja said warning lights are irrelevant.

[246] For these reasons, Mr Fagir submitted the first allegation could not be sustained.

Allegation 2 – Mr Singh missed the warning light and failed to provide adequate warning time to the work group

[247] Mr Fagir accepted the applicant missed the warning light. However, this was because he moved to prevent unsafe work. Mr Bugeja had no interest in investigating this legitimate reason. The unsafe work he was trying to prevent was particularly dangerous because of the track curvature and as the line was being used for express trains. A worker was at risk of being struck while undertaking a dangerous measurement. This should not have occurred. Mr Fagir rejected Sydney Trains’ proposition that even if the applicant had acted as he claimed, he should have used his air horn to have the workers move to a safe place (the Up Cess). In any event, Mr Fagir said the Up Cess was not a safe place for a worker on the Up Main line. Mr Fagir noted that there was no point looking up the Up Local, if no one was there, when the Up Main was likely to be more exposed and dangerous.

Mr Fagir added that even if Mr Polias was right, it was a judgement call made in that instant and was certainly not a wilful contravention or disregard for a safety rule. At worst, it was an ‘error of judgement’ which would not justify dismissal.

Allegations 3 and 4 – Mr Singh failed to stop work and implement appropriate control measures and failed to compile or make any form of incident report.

[248] Mr Fagir completely rejected these allegations. The incident was reported to the Network Controller and there was no ‘near miss’. Not one of the persons involved, or who were told about the incident, described it as a ‘near miss’ – not the driver, the Network Controller, Mr Lynn, the PO, two other experienced members of the Team or the Incident Command Controller. Mr Fagir noted that the Team waited to have the work stopped (which happens if there is a reported ‘near miss’), but no order came through and work continued. Mr Fagir referred to the Level 3 Report which identified that Sydney Trains categorises incidents according to outcome, not potential outcome. So, even if one person might view the incident as a ‘near miss’, Sydney Trains itself does not view it that way.

Allegation 5 – Mr Singh allowed work to continue despite the lack of MWT and SWD. This is specific to Kogarah and is linked to Allegation 1.

[249] Mr Fagir relied on what he said about this at [243]-[246] above.

[250] Mr Fagir then referred to what he called the ‘new allegations’. He said there had been a long and very extensive investigation and disciplinary process, conducted over two years during which there had been no allegation that the applicant committed misconduct by dawdling or turning his back from time to time on the warning lights. Mr Fagir accepted the employer is not limited to the allegations made at the time, but there are risks in doing so. Mr Fagir said the first risk is that the failure to raise this issue sooner, seriously undermines the proposition that the CCTV footage reveals gross breaches of safety rules, when any number of persons had reviewed it and relied on it, but had never raised this allegation, until two years later. This leads to a conclusion that when the matter got to this point, after being reviewed by many others, it was clear the original allegations could not sustain dismissal, and something else had to be found.

[251] Secondly, the late introduction of these allegations creates serious procedural fairness issues for Mr Singh. As the incident happened three years earlier, his and the memories of others would have faded, and he was denied an opportunity to lead evidence which might exculpate him. Thirdly, and relatedly, to suggest Mr Singh was dishonest when no one asked him about these matters at the time, was a denial of procedural fairness.

[252] Mr Fagir submitted that having regard to all the evidence, it is difficult to understand why these ‘experienced cleanskins’, would blatantly adopt an unsafe work method. The more obvious conclusion is that this was how the work had always been performed, consistent with the relevant Network Rules. Mr Polias’s criticisms as to Mr Singh not using the horn or whistle, and he had turned away from the direction of travel, were at the margins. Lookouts must keep an eye on both directions and in any event, the warning lights gave Mr Singh 30 seconds’ MWT, when the WPP required 15 seconds.

[253] Mr Fagir put that even according to the strict letter of the Network Rules, it would not make a difference, as the Commission would view these matters in a practical, not theoretical way, by ignoring how the work had been carried out in the past. Mr Fagir rejected Sydney Trains’ approach of micro-analysing where the Level 3 Report itself identified a disconnect between the theory and what happened in reality. Moreover, there was confusion between Sydney Trains’ own witnesses about the way the Rules should operate. This was not a matter of clear disobedience, but a perfectly defensible interpretation by the employees as to how the Rules should operate, based on their experience: Mr Fagir argued that the decision in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (‘Parmalat’) can be distinguished in this respect.

[254] In summary, Mr Fagir submitted:

(a) there was no valid reason for Mr Singh’s dismissal as the five original allegations cannot be sustained;

(b) Mr Singh worked as directed and in accordance with the usual practice;

(c) had it not been for Mr Chawdhury’s mistakes, none of the consequences would have happened;

(d) the more recent allegations are adequately explained;

(e) even if there was breach in two and a half minutes of a 34 year unblemished record, this could not justify the decision of dismissal.

[255] Mr Fagir also raised a number of issues of procedural unfairness as follows:

(a) Mr Bugeja instructed the Investigator to assume various things which should have been determined independently;

(b) Mr Bugeja ignored systemic failures and concentrated only on the culpability of the workers;

(c) Mr Bugeja failed to look into matters thrown up during the disciplinary investigation, because he had predetermined that two individuals were to be dismissed; and

(d) the delay in dealing with the matter itself, is procedural unfairness; see: APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230.

[256] Mr Fagir added that the later allegations were at the ‘margins’ and Mr Singh had to contend with new allegations three years after the event, without CCTV footage or access to the workplace.

[257] Under the heading ‘other matters’ (s 387(h)), Mr Fagir submitted that relevantly there was differential treatment and an unexplained contrast between Mr Singh’s fate compared to the others. In fact, on the respondent’s case, all of the Team had culpability, but only two were dismissed. Two were demoted and Mr Lynn got away with a reprimand, only due to his contrition. Mr Fagir further observed that:

(a) the responses from the workers were virtually identical, in that they all rejected the allegations;

(b) Mr Lynn did not ‘put his hand up’ for doing the wrong thing at Allawah, which he accepted was wrong and dangerous; and

(c) Mr Lynn’s contrition came after he knew he would not be dismissed, and Mr Singh would be.

[258] Finally, Mr Fagir submitted it would be hard to imagine a more convincing ‘harshness’ case than this one. This was so because Mr Singh had 34 years of unblemished service. He is 77 years old and very unlikely to work again, if he does not get his job back. As to the relief sought of reinstatement, Mr Fagir conceded it would have been easy for Mr Singh to admit some wrongdoing and acknowledge that he would not act the same way again. However, he does not accept he had done anything wrong. Nevertheless, he does say he has learned from the experience and would approach the same circumstances differently, if they arose in the future, particularly now that gaps in the system have also been addressed.

[259] Mr Fagir did not demur from the critically important emphasis on safety, particularly in the rail industry. However, the goal of safety should not mean a long standing employee is made the ‘scapegoat’, when systemic failures were identified and other employees had more culpability. In answer to a question from me, Mr Fagir said the applicant accepted that if he was reinstated, he would be required to be medically examined, consistent with Sydney Trains’ Policy which applies to all of its employees.

For Sydney Trains

[260] Mr Seck opened his submissions by noting that Mr Singh seeks reinstatement and will not consider any other settlement outcome in this case. This was despite him being offered a non-safety role, without loss of pay as a Team Leader, or a very high financial settlement with a resignation and Gold Pass. Despite eight days of proceedings, the case is very simple - what was Mr Singh’s role on 1 August 2015 and, did he comply with Sydney Trains’ Rules, policies and procedures? It was common ground that Mr Singh was an experienced PO, who knew and understood the Network Rules and procedures and the responsibilities he had as a Team Leader.

[261] Mr Seck added that Mr Singh is seeking a complete reinstatement, by insisting that he had done nothing wrong. However, Mr Fagir had acknowledged in oral submissions, that Mr Singh’s actions in the Allawah incident was an ‘error in judgment’ in not performing his role as Lookout. These propositions are ‘inherently incompatible’. Even so, Mr Seck submitted that in final cross examination, Mr Singh continued to deny the allegations and said he would not have done anything differently. He continues to believe he is capable of working in a safety critical environment. This stance demonstrated a deep lack of insight into his conduct and culpability for the events of 1 August 2015 and of the findings in the Level 3 Report and the ONRSR Report.

[262] Mr Seck agreed that the length of the investigation and the decision making process, was far too long and Sydney Trains is ‘trying to do better’. However, this was due in large part to the fact that there were four investigations, reflecting the seriousness of Sydney Trains’ commitment to safety. These investigations were:

1. an immediate Level 5 Investigation;

2. a detailed Level 3 Investigation;

3. an ONRSRS Report; and

4. a disciplinary investigation of all those involved.

[263] Mr Seck said that the Level 3 Report (which Mr Singh embraced where it supported his case, but rejected it where it was critical of him), makes clear that in addition to systemic root causes, there was individual culpability to varying degrees; both of which were significant contributing factors to the incidents. He emphasised that Sydney Trains had implemented 14 of the 15 recommendations in the Level 3 Report.

[264] Mr Seck referred to, and relied on a decision of the Full Bench of the Commission in Illawarra Coal Holdings Pty Ltd t/a South32 v Gosek [2018] FWCFB 749 which stated at [92]:

‘We agree that any flaws in this internal decision making process was an irrelevant consideration in determining if there was a valid reason for the dismissal. The role of the Commission, in determining if there is valid reason for dismissal based on the conduct of the employee, is to determine if the conduct occurred based on the evidence before the Commission and not based on the evidence before the decision maker. If the employer reached that conclusion based on a flawed investigation then that is irrelevant. The Commission is not being asked to determine if the employer had reasonable grounds for believing the conduct occurred. It is difficult to see how any flaws in the investigation could be a relevant factor. Here the Commissioner had regard to the internal decision making process under s.387(h). Even if we were to accept that there were flaws in the investigation, it is for the Commission to determine if the conduct occurred; if the employee was afforded procedural fairness as provided for in s.387(b), (c) and (d); and whether there were mitigating factors which would make the dismissal harsh. A dismissal may be unfair even if the employer’s internal decision making process is fair and a fair internal dismissal process will not by itself turn an unfair dismissal into a fair one.’

Mr Seck submitted that this approach is one which would apply in this case; that is, the establishment of a valid reason is to be based on the evidence before the Commission and procedural faults in the employer’s investigation are not relevant to that finding (without conceding there were any).

[265] Mr Seck characterised Mr Singh’s case as focussing entirely on criticism of Mr Bugeja’s reasons and conclusions as the decision maker. However, even if the Commission disagrees with Mr Bugeja, his decision is perfectly consistent with the Level 3 Report. Mr Seck submitted that the Level 3 Report assumed great importance for Mr Singh in this case. Sydney Trains agrees with him when he described the Report as helpful, more balanced and more reliable that the respondent’s decision making and a far better guide to understanding what occurred on the day. However, Mr Singh rejected the damning findings against him and Mr Chawdhury. Mr Seck said that given the cross examination of Mr Polias and Mr Bugeja was directed to the findings in the Level 3 Report, it was appropriate to place considerable weight on its conclusions. This is so because the Level 3 Investigation looks into all issues and contributory factors. Mr Seck referred to Ms Walker’s findings starting at page 22 and at 26 where she said:

‘The Protection Officer conducted a Less than Adequate safety assessment of the task in selecting Lookout Working as the method of protection.

The four other qualified Protection Officers in the work group did not challenge the use of Lookout Working as the method of protection for this work.

The work group used Lookout Working for approximately 3 hours prior to the incident, without recognising it would be inappropriate.’

[266] These findings were the basis for the first allegation against Mr Singh concerning his failure, as an experienced PO, to challenge the inappropriateness of the WWP. As to the second allegation, being the applicant’s failure to report the incident, Ms Walker concluded that it was understandable the applicant did not report the incident as a ‘near miss’, because he was the person who missed the warning light. She added at page 38:

‘Similarly, when the first incident occurred at Allawah, the Sutherland team leader who was acting as the Up Lookout was apparently reluctant to report the incident as a Near Miss. This is understandable given that he was reportedly the person who missed the Warning Light. It is acknowledged that the PO has the responsibility of reporting safety issues and each team member has overall responsibility to do so; however, the Team Leader, as management's representative on site, is encumbered with a higher level of responsibility to report. It is likely his reluctance, or at least his lack of initiative to report, influenced the PO/LO and other members of the team. It is the investigator's view that the Team Leader shares the largest portion of responsibility for not reporting the first Allawah incident, which would have potentially avoided the Kogarah incident.’

[267] The Level 3 Report at pages 41-42 deals again the with ‘near miss’ at Allawah. Ms Walker said:

‘The Allawah incident involved a train passing through an area with a Warning Light that was not being observed by a Lookout dedicated solely to this task. A worker was standing close to the track at the time, but could easily have been standing on the track doing work.  Other workers were standing on/near an adjacent track where they were exposed to risk by being separated from the readily available safe place by the passing train. 

This incident would appear to fit the definition of a “High Potential Incident”, however, it was not reported.  It was reported as a separate incident following the subsequent Kogarah incident.

PO/LO did not respond to Allawah incident as a Near Miss.

4 others did not respond to incident as a Near Miss, including a Team Leader.

This indicates that all members of the work group should have been aware the incident met the criteria for a “near miss”.  It should have been reported, work stopped, and the incident investigated.

The primary responsibility fell on the PO/LO, followed by the WGL.’

[268] From the CCTV footage, Ms Walker notes that Mr Singh is seen walking with his back to approaching trains on the Up Illawarra line. There is no MSD and no safe place. She said:

‘Whilst the up Lookout is walking with his back to the down Illawarra line, workers on track whilst up Lookout has no visibility of Up Illawarra line and the warning Lookout or the upside bridge pylon.

Up Lookout walked for about a minute without clear sight along the Up Illawarra Lookout and without looking back.  Appears to take up position with a view down Up Illawarra Lookout and to the warning light.  After a couple of minutes, Up Illawarra Lookout appears to be again walking down Down Illawarra local.  He stops to look back and continues.

The up Lookout walks along long sections along Up Illawarra local without looking back, up to 20 seconds.  This happens on several occasions as he moves towards the platform.  At one point he bends over to pick up something off the Up Illawarra forefoot with his back approaching the train direction.’

[269] Ms Walker’s summary of her conclusions is found at section 6.7 and reads as follows:

‘In summary, the immediate cause of the incident was that the PO/Down LO did not see the train approach and did not warn the work group to move to a Safe Place.

Contributing factors to the incident included:

1. Less than Adequate (LTS) specific procedures for track work for mobile worksites; absence of human factors for the ability of people to concentrate and meet the “60 minute rule” continuous watching and the “2 second” sighting rule for Lookouts; LTA detail in NWT300 – no reference to Hazardous Locations Register (HLR), Network Diagrams and Warning Lights and no method to show how safety assessment is done.

2. LTA application of knowledge and skills gained in training to manage risk; non use of HLR; culture of using Lookout Working for track measurement.

3. LTA coverage of quality control by observation of the track measurement task.

4. LTA Worksite Protection Plan (WPP) Form prompts; LTA definitions of Safe Walking e.g. direction, track, Warning Lights.

5. LTA consideration of the makeup of the work group and allocation of roles to optimise group functionality.

6. LTA definition and consistency of application of quality control procedures for WPPs, specifically Rail Safety Coaches and Corridor Safety System.

7. LTA application of when roles of PO and Lookout can be combined considering the current documented definitions of each role.

8. LTA perception of risk supported by the culture led to non-reporting of near miss and therefore missed opportunity to identify and correct incorrect application of Lookout Working.

9. LTA definition and application of Minimum Sighting Distance in procedures.

10. LTA correction of at risk behaviours of self and others by all work group team members, and specifically

a. LTA fulfilment of responsibilities of the Up Lookout in relation to the Allawah incident and its non-reporting; and

b. LTA fulfilment of responsibilities of the PO/Down in relation to the Kogarah incident.

c. LTA performance management intervention of local management and work group members over the past four years.’

[270] Mr Seck referred to Mr Singh’s rejection of the Level 3 Report where it was critical of him and his disagreement with any of Ms Walker’s findings which identified his failures to safely perform his duties on the day. In respect to the ONRSR Report, Mr Seck noted that Mr Singh participated in a recorded audio interview and he relies on the interview in this case. However, rather than this Report (in respect to the Kogarah incident only) supporting Mr Singh, there were numerous findings critical of him and the Team, including dawdling or acting complacently. Both these Reports form an adequate grounding for the allegations to be sustained. However, this conclusion is also available from the primary evidence in this case.

[271] Mr Singh had been a Team Leader for ten years. He accepted his job description was accurate, with its significant focus on undertaking and supervising work in a safe way, including adhering to Network requirements, such as the WPP. The applicant insisted he knew Sydney Trains’ policies and procedures backwards and knew what was required of him as Team Leader. Further, he acknowledged the only position which applied was that of Line Manager and that function required specific incident and reporting measures. After taking Mr Singh through all of the duties and obligations of a Line Manager, he confirmed it included a requirement to check the HRCLR. The applicant also confirmed his attendance at various training sessions, specifically in respect to his role as a PO.

[272] Mr Seck observed that Mr Singh had accepted that he had the highest substantive role within the Team, which itself consisted of other experienced PO4 workers. He accepted that he continued to be paid as a Team Leader and that his role’s duties continue, irrespective of whether he was performing a Team Leader role at the time. He understood that as the most senior person on the day, he was a management representative on the job, and other Team members looked to him and were influenced by him in this role. This was not a case of a person simply following directions as the Lookout. He already had very significant experience in the Sutherland/Sydenham area. In his evidence, Mr Singh claimed he was an ‘outsider’, unfamiliar with the area. However, this was inconsistent with the concessions he made in his ONRSR interview and in cross examination. It is also inconsistent with his own evidence as to his undertaking practices in accordance with ‘local arrangements’, which he claimed he knew very well. By contrast, Mr Lynn had only worked in the area for eight weeks.

[273] Mr Seck dealt in detail with the WPP that day which Mr Singh had signed off as him having been briefed as to safe work methods and site specific safety management plans and local hazards. Despite the WPP identifying Mr Singh as Team Leader, he claimed someone else had put his name on the WPP. Mr Seck submitted that this evidence was implausible. Then, in respect to Maximum Track Speed of 100km and the working out of the MWT, the WPP identified two Lookouts, whereas Mr Singh claimed there were three Lookouts - himself, Mr Lynn and Mr Chawdhury. On this inconsistency his evidence changed – he firstly said he and Mr Chawdhury were the Up and Down Lookouts and then said he and Mr Chawdhury were additional Lookouts and Mr Lynn was the primary Lookout. Mr Singh’s evidence was also inconsistent with the absolute requirement to maintain MSD at all times. He claimed he could use the warning lights instead and he had an ‘arrangement’ with Mr Lynn to swap roles.

[274] Mr Seck noted that not only did Mr Singh agree ‘we all signed the briefing papers’, but he agreed, as the most senior person and consistent with his job description, ‘I didn’t object to it’ (the WPP). All the evidence (including the Level 3 Report) points to the Team having a collective responsibility for safety. It followed that Mr Singh was not only the most senior person within the Team, but he was clear in accepting collective responsibility for the decisions taken in choosing Lookout working that day. Mr Chawdhury’s interview is consistent with Mr Singh in this respect.

[275] Mr Seck observed that in his first witness statement, Mr Singh came up with further explanations for his conduct for the first time; namely, that:

(a) He was an ‘outsider’. This was completely inconsistent with his evidence that he had significant experience in the area.

(b) He had asked Mr Chawdhury if he had checked the Register. This is at odds with his other evidence that there were all experienced PO4s, familiar with the area and comfortable with the safety arrangement. Mr Seck said this claim was implausible on two levels: firstly, Mr Singh had not raised this important question prior to the proceedings; and secondly, because the applicant was the Line Manager who should have checked the Register in any event.

(c) He had spoken to Mr Lynn and they had agreed Mr Lynn was to act as an additional Lookout. Mr Seck said this claim was not raised during the applicant’s ONRSR interview, the Level 3 Investigation or the disciplinary process.

Mr Seck said that the first time he raised the expression, ‘additional Lookouts’, was in his second statement for these proceedings, by reference to an inner and outer Lookout. This is inconsistent with the WPP which the applicant signed as identifying only two Lookouts and where the provision for a third Lookout is not ticked. In addition, in Mr Singh’s ‘Show Cause’ response, he expressly states ‘we used two Lookouts, not three’. He confirmed this in the Level 3 Investigation.

[276] Mr Seck added that the Network Rules provide for the circumstances and actions to be taken when an additional Lookout is to be used; none of which were relevant or adopted here. Further, Mr Singh’s evidence changed in cross examination when he described Mr Lynn as the primary Lookout and not an additional Lookout. Again, for the first time the applicant described this as a ‘local arrangement’.

[277] Mr Seck relied on the following objective evidence which makes clear the inherent unlikelihood of Mr Lynn being the additional Lookout:

(a) Mr Lynn was standing next to the Team members taking the measurements and not in any position to be able to fulfil a Lookout role;

(b) Lookouts must have a horn or whistle. Mr Lynn did not;

(c) Lookouts must be within sight of the other Lookouts. Due to track curvature and distances, Mr Lynn could not have been able to communicate with Mr Singh or Mr Chawdhury;

(d) as required by the Rules, Mr Lynn was doing other work. He was not permitted to be looking in any direction; and

(e) there is no position under the Rules for ‘inner and outer’ Lookouts.

[278] In dealing with the Allawah incident, Mr Seck said the allegation was very simple – Mr Singh was not looking in the right direction or at the warning lights and not looking continuously. This is required by the Network Rules and Procedures and the Level 3 Report found he was not performing these duties that day. Where the Rules are clear and unambiguous, that might be the end of it. However, Mr Singh’s explanation that he needed to be able to look in both directions, cannot be sustained, because Mr Chawdhury was to be looking in the other direction. This is the ‘error of judgement’ described by Mr Fagir in his submissions.

[279] Mr Seck acknowledged that the CCTV footage is not perfect, as it does not record the train going past the incident point. However, it does reveal:

(a) Mr Singh turning around;

(b) he was not looking at the warning light;

(c) he did not have MSD at all times, because of the track curvature and the Bridge pylons;

(d) it was contrary to the Rules to move to attend another safety issue, when he should have used the horn or whistle to warn the workers to move to a safe place;

(e) he was not continuously looking, contrary to the Rules which require no other work to be performed; and

(f) he did not report to the PO, as to what the other safety issue was.

[280] Mr Seck submitted that despite Mr Singh arguing that he had saved the employees from danger, he actually put them in more danger, as there was no Lookout on the Up Local, and no MSD. Mr Seck said that the contest about the incident location demonstrated that the applicant could not have been sure where it was. Moreover, his photos, taken long after the event, were incorrect as to the exact location. This was relevant for three reasons:

(a) it went to the Mr Singh’s credit as to his recollections;

(b) whether he could have had MSD or MWT; and

(c) whether he could see what he claimed was another unsafe work practice. This is not apparent from the CCTV footage.

[281] Mr Seck put that Mr Singh’s evidence was inconsistent or changed as to where he was at various points in time. This meant he was an unreliable witness, in that he does not really remember, or he is trying to improvise explanations when the evidence is presented to him. One obvious example was his claim that Mr Lynn motioned him to come forward, when the CCTV footage clearly shows the person who calls him forward is the one holding a measuring stick, Mr Ivanovski. When presented with this, Mr Singh proposed that the footage he saw had shown something different. Mr Fagir correctly acknowledged there was only one piece of footage. Accordingly, Mr Seck said Mr Singh’s evidence that Mr Lynn called him forward, cannot be correct and should be rejected.

[282] In the context as to whether there was a ‘near miss’, Mr Seck dealt firstly, with Mr Bonatesta’s evidence, who had no reason to make up his evidence, as he no longer worked for Sydney Trains, and did not know anyone in the Team. Mr Bonatesta was doing his best to give a truthful and honest account of what occurred. Despite what he said to the Network Controller, about not being sure if there was a ‘near miss’, this was easily explained by him being shaken up by the incident. Importantly, however, shortly after the incident he wrote on a Stopping Pattern Working Report in his cabin, ‘Train worker on my line. Near miss!’. Ever since, he was adamant as to what he observed. Mr Seck put that this evidence was consistent with what Mr Singh said that Mr Chawdhury was ‘cross at him’ for missing the light and he apologised. Mr Chawdhury’s account was also consistent with his ONRSR interview. Further, Mr Singh accepted that he understood the requirement to notify of any safety incident which had the potential to cause death or serious injury. Mr Seck emphasised the incident was a ‘near miss’. The Level 3 Report was completely correct on this issue. Mr Singh was the person most culpable for that incident, because of his failure to perform his Lookout role and as he was the most senior person on site, he should have reported it. Mr Seck noted Mr Lynn’s admission at the time, that the Team was waiting for the Incident Commander and when he did not arrive, they did not report it because they ‘thought they were going to get away with it’.

[283] Turning to the Kogarah incident, Mr Seck submitted that the CCTV footage is very clear. It was accepted by the Level 3 Investigation. He said the footage did not disclose any swapping of roles between Mr Singh and Mr Lynn. There was no approval from the PO. If any move in location occurs, it must be from a safe place. The ‘local arrangement’ was not in the WPP and appears nowhere else in the evidence prior to these proceedings.

[284] Mr Seck then went in some detail to the HRCLR which makes clear that Lookout working cannot be used where there is inadequate MWT. Also relevant is the description of the Track (13200-13600) which states ‘Restricted visibility and at Down Main 14000-14300 ‘Restricted visibility and no safe places.’ Mr Seck noted that Mr Singh accepted that for these locations, Lookout working is not permitted. Mr Seck rejected any criticism of Mr Polias as unfair, as he was going on recollection and not what the Register actually says. In any event, the point is Mr Singh did not check, or question the Register.

[285] In dealing with unequal treatment, Mr Seck made the following submissions. Mr Chawdhury’s and Mr Singh’s culpability were the ‘closest match’ and both were dismissed. Mr Lynn was entirely different. He was the most junior person on the Team. He did not fail to perform the Lookout role, because he was not the Lookout. This was the area most criticised by the Level 3 Report and the role which Mr Singh and Mr Chawdhury had failed to fulfil. Mr Lynn was also contrite, accepted wrongdoing for what had occurred and said it would not happen again. This was completely at odds with Mr Singh’s refusal to accept any responsibility. Further, as Mr Lynn was at the bottom of the salary band, he could not be demoted.

[286] Mr Seck accepted the elements of harshness claimed by Mr Singh, primarily his 34 years of unblemished service. However, this will not generally outweigh the seriousness of the conduct; a less than candid response to an investigation; an abject refusal to accept the gravity of the conduct; a refusal to accept any responsibility for the incidents; no expression of any contrition or remorse; and the fact Mr Singh had learnt nothing from the experience. This was his steadfast position.

[287] In terms of relevant factors in s 387 of the Act, Mr Seck submitted that:

(a) The allegations were put to Mr Singh and he responded through his Union, in writing. He declined an oral response in the disciplinary investigation.

(b) There was no prejudgement by Mr Bugeja. He responded appropriately to the findings in the Level 3 Report by initiating a disciplinary process as to any breaches of the Code of Conduct or Sydney Trains’ Policies and Procedures.

(c) There were really no new allegations against Mr Singh. These issues arose from a new account of the incident made by Mr Singh himself. Mr Seck accepted the Kogarah incident could have been raised earlier, but this was in the context of its seriousness being recognised in the ONRSR Report.

[288] Finally, Mr Seck submitted Mr Singh’s dismissal was not unfair. His unfair dismissal application should be dismissed.

In reply

[289] Mr Fagir submitted that two matters cannot be disputed from the evidence:

  Lookout working was the usual method for track measurements in these areas; and

  Mr Kinder, Mr Lynn and Mr Chawdhury each had an obligation to check the HRCLR – Mr Singh did not.

The corollary of this was that when everyone knew the way the work was planned, organised and supervised in the same way, day in day out, Mr Singh should have stepped in. When he did not, he was sacked. Mr Bugeja did not even inquire as to whether Mr Kinder had checked the Register.

[290] Mr Fagir addressed the settlement offer by Sydney Trains. There is an application for compensation in this case. The non-safety critical role which was offered to Mr Singh was away from his depot to a Pitt Street office, in a job he knew nothing about. In addition, his earnings would be halved, because his track work attracted regular overtime and weekend work. Nevertheless, Mr Fagir added that vindication is very important to Mr Singh.

[291] Mr Fagir did not accept he had submitted Mr Singh had made an ‘error of judgment’ in respect to Allawah. If he did – he ‘misspoke’. He explained that although Mr Singh made the right call in the circumstances, if this was found to be wrong and that he should have done something differently, at its highest this was an ‘error of judgement’, and not some wilful or grossly negligent breach of the safety rules.

[292] Mr Fagir submitted the decision in Gosek did not have much to do with this case. What the Full Bench said in Gosek was that even if there was some deficiency in an internal decision making process, this would not turn an otherwise unfair dismissal, into a fair one. In this case, the procedural unfairness issues are significant. They include:

  new allegations being raised after months of investigation and inquiry;

  the delay deprived Mr Singh of an opportunity to lead evidence that might be exculpatory;

  Mr Singh is criticised for saying things now that he did not say earlier and even then the criticism is about the minutiae of detail. An example of this was whether the CCTV footage revealed the applicant being motioned forward by Mr Lynn or Mr Ivanovski. Mr Singh’s credit surely cannot be impugned for a simple mistake (assuming it was a mistake) three years after the incident.

[293] Mr Fagir compared this to the evidence of Mr Polias and Mr Bugeja, who did not mention one word of acknowledgement of any factor, other than Mr Singh’s personal culpability. Mr Fagir emphasised the reluctance of Sydney Trains to produce the Level 3 Report, no doubt because it identified systemic factors leading to the incidents, apart from its focus on a few pages of criticism of Mr Singh. If it had not been for the Notice to Produce and the cross examination of Sydney Trains’ witnesses, the Commission would not have the full picture it now has. Mr Fagir said it was not Mr Singh who denied the Level 3 Report’s existence, or sought to limit the Commission’s understanding of the full picture. Nevertheless, Mr Singh claims the Level 3 Report ‘got it wrong’ in a number of areas. Mr Fagir said that the Commission would give greater weight to the evidence in this case and the fact that the Level 3 Report identified 14 contributing factors, with only 1 of them involving Mr Singh, than the second hearsay accepted by Sydney Trains during the investigation. Mr Fagir put that the Level 3 Report suffered from the same problem as the disciplinary investigation and Mr Bugeja’s failure to get to the bottom of what happened at Allawah.

[294] Mr Fagir focussed on Sydney Trains’ assessment of the seriousness of incidents by reference to actual outcome - not potential outcome - and the Investigator’s conclusion that there was a culture of non-reporting of ‘near misses’. In this context, Mr Singh could hardly be held responsible for not reporting a potential outcome. Even if the criticisms of Mr Singh were accepted, no conclusion could be reached that he and Mr Chawdhury should be dismissed, but no one else in the Team. Mr Fagir said that when seen in the context of cultural or habitual practice, this was not a case of ‘one person going off the reservation’. Mr Fagir agreed that the Level 3 Report was not about apportioning blame or recommending disciplinary action. However, it did not identify any wilful breach of the Rules by anyone. It just said particular workers fell short of expectations.

[295] Mr Fagir rejected Mr Seck’s continued criticism that Mr Singh had an express obligation, as a Line Manager, to check the HRCLR. In light of the reference to ‘Line Managers planning or supervising work in the rail corridor must consult the Register prior to commencing work’ and that Mr Singh did not supervise or plan the work, it was a nonsense to try to cling to the claim that he had failed to consult the Register. Mr Fagir noted again that Mr Singh was sacked, but Mr Lynn, as the Supervisor, kept his job.

[296] Mr Fagir submitted that the notion that the Network Rules require the Lookout to look in one direction and do nothing else, was inconsistent with Mr Lynn’s evidence that ‘[t]he rules require if a lookout re-locates either the team moves to a safe place or someone else keeps lookout’ and that Mr Singh had a broader safety role to not only look after himself, but for his work mates. The truth is the issue is about being alert to train movements in both directions. In any event, there were warning lights at Allawah.

[297] Mr Fagir put that Mr Singh could hardly be criticised as to his credit because he relied on photographs of the location. Further, Mr Lynn’s evidence that the incident was not reported because the Team did not want to get into trouble, was consistent with Mr Singh’s evidence. Mr Fagir suggested that it is not apparent from the CCTV footage that Mr Singh and Mr Lynn are alternating or relaying. In these circumstances, the authorities make clear that the direct evidence of the witnesses should prevail.

[298] Mr Fagir again observed that there was no prohibition on Lookout working; rather, the requirement was that the PO shall implement a higher level of protection, if required. Further, Mr Polias did not know what he was talking about when he was questioned about the Register.

[299] Mr Fagir denied the new allegations arose because Mr Singh said something he had not said before. At all times, he had said that there was someone taking a measurement on the Up Main which is why he moved to intervene. Further, the new allegations arose from the CCTV footage itself and came after the incident had happened. Mr Fagir said that there was nothing Mr Singh had said that would have prompted a complaint about his conduct. It was more a case of ‘we’ve got a bit of a problem with the original allegations. What else can we find?’.

[300] Mr Seck responded to my queries as to Mr Fagir’s submission on compensation by noting that the applicant did not mitigate his loss, in that:

(a) he refused an offer of reemployment;

(b) he had not sought any alternative employment; and

(c) the Commission would discount any compensation, because of the applicant’s misconduct (s 392(3)).

CONSIDERATION

Statutory provisions and relevant authorities

[301] Before determining the merits of an unfair dismissal application, s 396 of the Act, requires the Commission to determine a number of preliminary matters; namely:

(a) whether Mr Singh’s unfair dismissal application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[302] Accordingly, I make the following findings:

(a) the application was made within the 21 day statutory time period set out in s 394(2);

(b) Mr Singh was a person protected from unfair dismissal in that:

(i) he most certainly completed the minimum employment period, set out in ss 382 and 383 of the Act;

(ii) his remuneration was below the high income threshold (s 382(b)(iii)); and

(iii) he was employed under the terms and conditions of the Sydney Trains Enterprise Agreement 2014;

(c) his dismissal was not a case of genuine redundancy (s 385(d)); and

(d) his dismissal was not a case involving the Small Business Fair Dismissal Code as Sydney Trains employs approximately ten thousand employees.

[303] Section 385 of the Act defines an unfair dismissal based on four criteria which must be satisfied if the person, seeking a remedy for unfair dismissal, is to succeed. The section reads:

‘A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’

[304] Mr Singh was dismissed by Sydney Trains on 16 November 2016, and ss (c) and (d) of s 385 do not apply; leaving only the question of whether Mr Singh’s dismissal was ‘harsh, unjust or unreasonable’ and consequentially, an unfair dismissal. This leads to s 387 which requires the Commission to take into account the following matters:

(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.

[305] I shall come back to these matters in due course. However, I add at this juncture that the meaning of the expression ‘harsh, unjust or unreasonable’ in the context of a dismissal, was explained in the oft-quoted extract from Byrne and Frew v Australian Airlines (1995) 185 CLR 410 (‘Byrne and Frew’) of McHugh and Gummow JJ, as follows:

‘128. Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

The allegations

[306] In [7] above I set out the allegations against the applicant from the ‘Show Cause’ letter which ultimately led to his dismissal for serious misconduct.

[307] Serious misconduct is defined in the Act’s Regulations. Regulation 1.07 sets out a non-exhaustive definition as follows:

‘(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.’

[308] It may be accepted that Sydney Trains relies on sr (2)(a) and (b)(i) of the Regulation. However, reliance on the Regulation is not necessarily determinative. The Regulation and the non-exhaustive examples of serious misconduct, do no more than provide a guide. Consistency with one, or more of the examples in the Regulation, does not displace the statutory instruction that a valid reason (such as a finding of serious misconduct), is but one of the relevant matters the Commission is required to take into account under s 387, as to whether a dismissal is ‘harsh, unjust or unreasonable’. To demonstrate this proposition, I refer to what the Full Bench said in Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]:

‘[33] The relevance of the definition of “serious misconduct” in reg. 1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg. 1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the red. 1.07 definition applies to the Small Business Fair Dismissal Code). Reg. 1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant of the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd, Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious misconduct’ is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. In New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1995 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”’ (footnotes omitted).

[309] In cases of summary dismissal, the onus rests on the employer to prove, to the Commission’s satisfaction, that the misconduct, had in fact occurred. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities); see: Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Briginshaw, at page 362, Dixon J said:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

[310] Further, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted).

[311] That the Commission, for itself, must be satisfied that the misconduct occurred, is well established by the authorities of this Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd (2000) Print S4213, a Full Bench of the Australian Industrial Relations Commission (‘AIRC’, as the Commission was then styled) said at [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. 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.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.’ (my emphasis)

[312] Even accepting that a finding of serious misconduct was open to Sydney Trains, such a finding must not be confused with the statutory language. The statute still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the Commission then was) held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

[313] Mr Seck relied on the decision of the Full Bench in Gosek by submitting that a faulty investigation (while not conceding as much in this case), will not necessarily result in an otherwise fair dismissal being rendered unfair (see: [264] above).

[314] In my view, the decision in Gosek is consistent with the decisions I have earlier cited which make clear that the Commission’s obligation in a misconduct case is to determine for itself, on the basis of the evidence before it, whether the alleged misconduct took place and what it involved.

[315] Mr Fagir was critical of Mr Bugeja’s investigation and his conclusions, which he said had been predetermined to ensure Mr Singh was the only one targeted for dismissal. Further, Mr Bugeja had failed to have any regard for the systemic failings identified, and the more culpable role of Mr Lynn. Even if this was correct - which I do not accept - Mr Bugeja’s investigation was not the only evidence Sydney Trains had before it. Moreover, Mr Bugeja did not conduct the WCIU investigation. There is an abundance of other evidence which Mr Bugeja had before him which corroborated his conclusions. In any event, it could hardly be said that Mr Bugeja had no regard to the systemic failings identified by Ms Walker in the Level 3 Report. 14 of the 15 recommendations of Ms Walker were adopted. To treat this as some kind of numbers game in that systemic recommendations clearly outweighed Mr Singh’s single involvement in the incidents, ignores the reality of the extent of human error that Ms Walker also identified. I will return to these matters later. In any event, in this case the Commission was provided with a large array of detailed and comprehensive reports, Rail policies and procedures, CCTV footage, an inspection of the incident locations and the statement and oral evidence of all the relevant witnesses. It can well be said that nothing was left out or inadvertently omitted. In my view, the Commission is in an ideal position to determine this matter, for itself, based on the evidence I have before me and which I have taken into account. I place particular emphasis on the Level 3 Report.

The evidence

[316] Mr Singh’s viva voce evidence spanned almost three days. He had the assistance of a Punjabi interpreter. Having observed him in the witness box and from an objective review of the transcript, the length of Mr Singh’s cross examination, in my opinion, was in large part due to his meandering, deflective and numerous argumentative or unresponsive answers, despite Mr Seck’s valiant, but often futile attempt to get him to give a straight answer.

[317] While I accept Mr Singh was in unfamiliar and likely stressful surroundings in court, I have trouble reconciling his performance in the witness box with the facts that he had 34 years of service, risen to the rank of Team Leader and had the most senior rail protection level training; all of which must require good communication skills and more than just a basic understanding of English. I also found Mr Singh’s oral evidence a far cry from his statement of evidence which was carefully laid out, well expressed and meticulously detailed. His statement evidence raised for the first time, numerous issues and explanations which had not been raised in his interactions with Ms Walker, the Regulator or in his ‘Show Cause’ response. More about this shortly.

[318] Regrettably, but perhaps understandably, the entirety of the applicant’s evidence was designed and constructed to support his steadfast trope in this case; namely, he had done nothing wrong on 1 August 2015; Sydney Trains was responsible for the systemic failings on the day and all the other members of the Team, except himself, were culpable and responsible for any individual personal failings. Indeed, not only had he done no wrong, but he claimed his actions in moving from his Lookout position to warn of another safety breach, averted a more serious incident.

[319] Mr Singh’s dogged refusal to accept any responsibility for the events that day entirely coloured his approach to answering questions which even hinted he might have had some culpability. His answers were deflected by either focussing on criticising the part played by other members of the Team or avoided entirely, by him giving an answer completely unrelated to the question. Given the circumstances, it is little wonder Mr Seck’s cross examination was long, detailed and probing. The applicant would concede nothing, even including his own Counsel’s submission that at its highest, he may have made an ‘error of judgment’ in the Allawah incident.

[320] In my opinion, there were many examples in Mr Singh’s evidence which were very concerning and satisfies me, his ‘spin’ on the incidents of 1 August 2015, is simply not believable. I do not intend to record all of this evidence, but highlight some of the difficult to reconcile and implausible examples to demonstrate the point.

(1) Perhaps the most concerning of all, in a classic worst case of ‘cherry picking’, was Mr Singh’s ‘enthusiastic embrace’ of the Level 3 Report where it was critical of systemic failures, or of others in the Team, but his complete rejection of any comment or finding which was critical of him. He justified this by saying Ms Walker was not there and when he said: ‘she’s not God’. I simply do not understand how it could seriously be suggested that the Commission would accept this selective, illogical and incoherent reading of the Level 3 Report.

(2) Similarly, and equally troubling, was when the Commission was shown the CCTV footage, which plainly showed Mr Ivanovksi (with the measuring stick) motioning the applicant and not Mr Lynn, as he claimed. Mr Singh’s ridiculous explanation was that this was not what he saw when he viewed the same CCTV footage on his home computer. To maintain his narrative, and Mr Lynn’s alleged culpability, in the face of incontrovertible evidence, Mr Singh had to resort to absurdity to try and explain away the patently obvious.

(3) In a further attempt to reconstruct history, Mr Singh claimed that there was an agreement in the Team for three Lookouts on the day - himself, Mr Chawdhury and Mr Lynn. He described himself and Mr Chawdhury as the ‘inner’ and ‘outer’ Lookouts and Mr Lynn as the additional primary Lookout (despite having said Mr Lynn was the additional Lookout). There are a number of problems with this improvisation.

(a) There is no provision in the Network Rules or the Procedures for a position of ‘inner’ and ‘outer’ Lookouts.

(b) The WPP, which Mr Singh and other Team members signed off on, makes absolutely clear the plan for the day was the utilisation of two Lookouts, not three. Mr Singh’s post explanation for this obvious documentary evidence, was that he had not signed the WPP that morning, implicitly suggesting that, at a later point in time, someone had forged his signature on the document. This is utterly implausible. This evidence is also inconsistent with the Union’s response on his behalf to the ‘Show Cause’ letter, in which he said: ‘We all signed the briefing papers’.

(c) It was accepted that to perform the role of Lookout a person must carry a horn and whistle. Mr Lynn had neither. Lookouts are also required to wear a yellow arm band. The applicant and Mr Chawdhury can be seen with yellow arm bands; Mr Lynn does not.

(d) The Network Rules require the Lookout to be engaged solely in that function and not undertaking any other function or work. The evidence was clear that Mr Lynn was recording the track measurements in close proximity to Mr Ivanovski and Mr Kolevski. Mr Lynn could not have been acting in the role of an additional Lookout, which in any event, would warrant a recalibration of MSD and MWT. This did not happen.

(4) Mr Singh further claimed that the reference to him as the Site Supervisor or Team Leader recorded on the WPP were not there when he signed it at the time. Putting aside this conflict with his ‘Show Cause’ response, that he did sign the WPP, this is just nonsense. In my view, this claim was intended to minimise his senior role in the Team. Is it seriously suggested that the Commission would accept that the WPP was deliberately ‘doctored’, by a person unknown, to imply Mr Singh was the most senior person that day, rather than as he would have me believe, that he simply followed Mr Lynn’s directions? While I accept that the Level 3 Report said that there was potential confusion as to who was in charge that day, Mr Singh’s evidence does not disclose any confusion on his behalf. It suited his future narrative to insist Mr Lynn was in charge.

(5) Further to this, Mr Singh seeks to maintain the fašade of his junior role and minimal, if any, responsibility, for the events of that day, when his own statement evidence is that he was directing others what to do, and allegedly taking decisive steps to avert another safety incident. In this respect I refer to the following extracts from his statement:

‘The work group should walk and take measurements from Wolli Creek Down to Hurstville because we should walk facing the trains.

After each measurement the work group should walk on the Up Cess till the next measurement spot. The measurements shouldn’t take place until the protection is in place.

At places where we can’t meet Minimum Sighting Distance (MSD), I’ll act as an outer LO (Look Out) and Andrew you be inner LO for us. When the measurement finishes I’ll keep a lookout and you walk to the next measurement station and stop there and start looking out. I will then move forward. When I’m about 30 metres away I’ll look out as well as you. You shouldn’t write anything. You only look at the trains. When the measurement is done everyone move to the Up Cess and you look out again while I move forward.’

(6) In oral evidence (PN4875) Mr Singh claimed no one in the Team had done anything wrong. This is curious, given his evidence elsewhere apportioning primary blame on Mr Lynn and Mr Chawdhury and his own self absolution of any responsibility. This is also inconsistent with the statement of Mr Chawdhury that immediately after the incident, Mr Singh apologised for missing the warning light (Mr Fagir’s ‘error of judgment’ submission). Why would Mr Singh apologise if he had done nothing wrong?

(7) There was considerable debate as to whether the Allawah incident was a ‘near miss’. It is Mr Singh’s case that as it was not a ‘near miss’, and he could not be guilty of not reporting it, because no one (the Driver, the Controller, or the Level 5 Investigator or anyone in the Team) had reported a ‘near miss’. This is simply wrong. In addition, Mr Singh sought to rely on the ‘Show cause’ letter which described the incident as a ‘safe working incident’. This is pure semantics. If a ‘near miss’ is not a ‘safe working incident’, it is difficult to imagine what else it could be. Just because no one told him it was a ‘near miss’, is not the point. Nor is it to the point that the Network Controller did not so describe it.

In my view, as an experienced Team Leader, it was incumbent on Mr Singh to report the incident whether he thought it was a ‘near miss’, or not. Incredibly, his answer to the evidence that he apologised at the time, was that he was sorry the Driver had reported it – another implausible invention. Mr Singh would not even have known at the time, that the Driver had reported it. This answer is indicative of Mr Singh being willing to say almost anything to justify nonsensical excuses.

In any event, listening to the audio of the radio call to the Network Controller, it is apparent the Driver was shaken and understandably confused by what he had just witnessed. The mere reading of the transcript of the radio call does not give a true impression of the emotional state of Mr Bonatesta. True it is that he is recorded as saying he did not know if it was a ‘near miss’, but reliance on this comment must be viewed in context, but more specifically with what Mr Bonatesta recorded a few moments later in the cabin, in the Stopping Pattern Report:

‘Worker on track, near miss’.

So why didn’t any member of the Team, being experienced POs, report the incident as a ‘near miss’? In my view, the answer is obvious. It is to be found in the against interest evidence of Mr Lynn. The Team was waiting for a direction to stop work, and when that never happened after half an hour, they all presumed they had avoided getting into trouble and got away with it. This was perhaps an understandable human reaction, as no one was injured. However, in my view, this was a risky and reckless joint decision contrary to Sydney Trains’ policies and the Network Rules and for which Mr Singh must bear the brunt of responsibility. This was because the incident occurred as a result of him failing to observe the warning light. It is reasonable to assume that if the Allawah incident had been handled differently, the Kogarah incident would not have happened and we may not have even been where we are now.

In my opinion, there is no substance in Mr Singh’s case that Sydney Trains makes some distinction between an actual safety incident and a potential risk of a safety incident and this somehow minimises the seriousness of the incident. If this was the case, no potential risk to health and safety of the employees or the public, would ever be reported as a ‘near miss’, unless there was an actual injury or death. Such a proposition is patently unsustainable.

I also do not accept the argument that the Team were not required to report the incident, because the Driver had done so. This is inconsistent with the Team’s conduct immediately after the incident and is difficult to accept when they would not have known the details the Driver had reported.

(8) In oral evidence, Mr Singh claimed he had questioned Mr Chawdhury about the work, before they commenced working. However, in the Interview with the OHRSR at Q192 he said ‘No questions’ were asked. Ms Walker’s handwritten notes also confirm no questions were asked. In my opinion, this was a false post-construction of events, in order to put Mr Singh in a favourable light, as to him questioning the correctness of the WPP, when he did not do so.

(9) Mr Singh’s further attempts to reconstruct the events of the day in order to put himself in the best possible light, can be seen in numerous places in his witness statement when for the first time he raises explanations that he had not raised at any time previously. These include the following:

(a) While claiming he had a perfect memory of what happened on 1 August 2015, he had to change his oral evidence that he had not seen the Level 3 Report, when it was pointed out in his statement he had seen the Report (Exhibit B para 28).

(b) Mr Singh claimed he was an ‘outsider’ unfamiliar with the track at Allawah, yet elsewhere he said he knew about the local arrangements for the area (Exhibit B para 24). For the first time, he mentions an additional Lookout (Mr Lynn).

(c) Critically, the applicant claimed he had asked Mr Chawdhury if he had checked the HRCLR. This was never mentioned in his Level 3 Interview, the Regulator’s Interview or in his ‘Show Cause’ response. This again is a false attempt to deflect all responsibility onto Mr Chawdhury, while attempts to absolve himself from his obligation to question and agree with the WPP (Exhibit B para 40).

(d) At paras 35-37 of Exhibit B, Mr Singh recounts a conversation with Mr Lynn and Mr Chawdhury, which had not been mentioned before. Assuming the conversation occurred, it is inconsistent with his claim that he was not in charge. The conversation most certainly appears to be the applicant directing Mr Lynn and Mr Chawdhury. The applicant claimed that it was not until he was dismissed (many months after the incident) that he recalled all the details. I do not accept this evidence or Mr Singh’s explanations. Mr Fagir submitted that the new explanations arose from new allegations. This submission cannot be accepted. Accepting Mr Fagir’s description of this matter not being very complicated, the issue is the conduct of Mr Singh in two incidents on 1 August 2015. Mr Singh knew exactly what was alleged against him in both the interviews in the Level 3 Investigation and the Regulator’s Investigation and in his response to the ‘Show Cause’ letter. Nothing of any significance arose subsequent to those events.

[321] It seems to be that these examples (and others) of non-explanations were in response to Sydney Trains’ evidence which had been filed first in these proceedings. Mr Singh had to reconstruct his case in order to fit the narrative of his insistence of innocence and in light of compelling corroborative evidence which did not help his case.

Was Mr Singh’s dismissal ‘harsh, unjust or unreasonable’?

[322] As earlier mentioned, s 387 of the Act sets out each of the matters the Commission is required to take into account when determining this question. All of the criteria must be taken into account when the Commission considers whether a particular dismissal is unfair. Nevertheless, it must be steadily borne in mind that all of these matters must be considered in totality. This is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 at para 1541:

‘1541. FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.’

[323] I will turn to each of these matters, seriatim.

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 others) (s 387(a))

[324] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been applied by members of the Commission and its predecessor entities for  many years:

‘In its context in s 170DE(1), the adjective ‘‘valid’’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.’

[325] That an employee’s conduct, which has the potential to cause an imminent risk to the safety of other employees, constitutes a valid reason for dismissal, is plainly an important consideration in cases such as this. The very identification in s 387(a) of such conduct serves to demonstrate how serious the legislature views the ‘safety and welfare’ of others. I intend to refer to a number of authorities of the Commission which makes this pellucidly clear.

[326] In Macklyn v G&S Engineering Services Pty Ltd [2013] FWC 5303, Asbury DP said at [66]:

‘[66] A serious breach of a workplace health and safety policy or an incident where an employee places health and safety at risk, will generally constitute a valid reason for dismissal. This is particularly so when the breach is wilful or reckless and is committed in circumstances where the employee is aware of the employer’s policy and the risks associated with his or her conduct. In my view the Commission should not lightly interfere with the right of an employer to establish, maintain and enforce workplace health and safety policies, through the use of appropriate disciplinary processes.’

[327] In my view, the conduct in question need not necessarily be wilful, deliberate or reckless to constitute a valid reason for dismissal. Conduct which is negligent, accidental, inadvertent or careless, particularly in the rail industry, can have disastrous, life-threatening consequences. Adherence to safe working policies and practices, particularly where persons are specifically trained to be aware of ever present dangers, is a cardinal principle for any workplace, but even more so in the rail industry where the risk to the safety of employees and the public is obviously so much more acute. It involves fast moving trains and potentially dangerous infrastructure. Employees are commonly working in high risk track environments as a daily feature of the working environment. Such conduct need not be repeated behaviour, but may involve a single instance of conduct which threatens the safety of employees or others. I also agree with Asbury DP that the Commission would not lightly interfere in the decision of an employer to dismiss an employee in such circumstances.

[328] In Douglas v SSX Services Pty Ltd t/a The Australian Reinforcing Company [2010] FWA 2693, Hamberger SDP said at [6] and [7]:

‘[6] The Occupational Health and Safety Act 2000 (NSW) places responsibility upon an employer to provide a safe and healthy workplace, and upon employees to act in a proper and safe manner towards other workers. Section 20(2) of that Act provides:

An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act for the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.”

[7] Employees who commit breaches of health and safety procedures in a wilful, negligent or reckless manner can reasonably be held to have committed misconduct. Indeed, the definition of ‘serious misconduct’ in Regulation 1.07 of the Fair Work Act 2009 (the Act) expressly includes conduct that causes serious and imminent risk to the health and safety of a person.’

[329] In IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 a Full Bench of Fair Work Australia (‘FWA’, as the Commission was then styled) said at [14]:

‘[14] The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.’ (footnotes omitted)

[330] Another Full Bench of FWA in Parmalat said at [18], [19], [26] and [34]:

‘[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.

[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.

[34] In our view there are no mitigating factors that should have led to a lesser penalty than dismissal being adopted. Mr Wililo was employed only for a short time and has since found other employment. It is not for the Tribunal to place itself in the shoes of the employer and determine what it would have done in the circumstances. We must consider whether the employer’s action in terminating Mr Wililo’s employment was harsh, unjust or unreasonable in the circumstances. We find that it was not.’

[331] More recently, the Full Bench of the Commission in Nyrstar Hobart Pty Ltd v Brain [2018] FWCFB 3346 considered the significance of a harshness finding in the context of a dismissal where the employee was in breach of a critical safety procedure, placing himself and others in a potentially life threatening situation. At [31]-[37] the Full Bench said:

‘[31] The Deputy President stated that he did not regard the present case to be one where the conduct was ‘so serious as to justify termination without specifically hearing from the Applicant about sanction’. Clearly this statement contemplates that the Deputy President believed there may be cases where the conduct is sufficiently serious that no opportunity to make submissions on sanction is warranted. But this does not tell against our conclusion that the Deputy President adopted a decision rule. The notional rule was not that there must always be an opportunity for submissions on sanction, but that in all bar a sufficiently serious case it is incumbent on the employer to afford an employee such an opportunity.

[32] In our opinion, by concluding that it was incumbent on the company to hear from Mr Brain about the proposed sanction for his conduct, the Deputy President fettered the exercise of his discretion in a manner not authorised by the Act. This was an error of law. 

[33] It is appropriate to consider whether there is utility in upholding the appeal on the basis of the error that we have identified: if the error were found to be inconsequential, the answer might be ‘no’. We take note of the fact that in the ‘summary of outcome’ towards the beginning of the Decision, the Deputy President remarks that ‘a single safety breach over a 37 year career of the type the Applicant is guilty of does not justify dismissal’. 

[34] However, this statement must be read in the context of the relevant paragraph, and the Deputy President’s overall reasoning. In the summary paragraph, the Deputy President states that although there had been a ‘serious safety breach’, he had determined that the dismissal was harsh. He then notes that the company failed to seek submissions from Mr Brain as to sanction. The Deputy President’s reasoning in relation to the harshness of the dismissal does not indicate that he considers that Mr Brain’s length of service rendered the termination harsh. Rather, harshness arose from the company’s failure to afford an opportunity to Mr Brain to make submissions on the actual proposed sanction, which submissions might also have addressed his length of service.

[35] The Deputy President found that there was a valid reason for dismissal, that Mr Brain was informed of the reasons which led to termination, and that he was given an opportunity to respond to the allegations in question. But he considered that the ‘failure to properly deal with the matter of sanction’ was ‘significant.’ The Deputy President’s consideration of ‘other relevant matters’ starts and ends with discussion of this point. He concludes that the ‘conduct of itself is not sufficiently serious to justify dismissal without more’. What more was required was evidently the separate opportunity to make submissions on sanction. The Deputy President’s finding that the dismissal was harsh was to a significant degree the result of his determination that it was incumbent on the company to hear from Mr Brain on sanction.

[36] In our view, this is not a case where the error in question was of no or little consequence, such that the same result would have been reached irrespective of the error. The error that we have identified fundamentally affected the Deputy President’s approach to his consideration of ‘other relevant matters’, and his determination that the dismissal was harsh.

[37] For the above reasons, the Decision was affected by appealable error. The appropriate course is for us to quash the Decision and remit Mr Brain’s unfair dismissal application to another member for rehearing.’ (footnotes omitted)

[332] It will be evident from the earlier discourse, that I reject Mr Singh’s evidence as to his minimal role in the incidents on 1 August 2015. His evidence is not credible or believable. His testimony is riddled with unsubstantiated bravado, inconsistencies and improbabilities, rather than a full, frank and honest account of the events that day. I rely particularly on the evidence of the Level 3 Report and the Report of the Regulator. Moreover, I accept the evidence of Mr Lynn as to the events of that day where it conflicts with the evidence of Mr Singh. I am satisfied that on 1 August 2015, in Mr Singh’s capacity as Team Leader and nominated Lookout for a Team assigned to complete planned track measurements on rail lines at Kogarah and Allawah, Mr Singh failed to follow safety policies, procedures and guidelines that applied to his work, including failing to carry out his duties safely and reasonably and adequately assessing and planning. The specific allegations, as set out in the ‘Show Cause’ letter of 5 August 2016, have been proven, on the balance of probabilities. Accordingly, I am satisfied there was a valid reason for Mr Singh’s dismissal.

Whether the person was notified of the reason (s 387(b))

[333] Mr Singh was made aware of the allegations against him in the ‘Show Cause’ letter of 5 August 2016. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s 387)(c))

[334] Mr Singh responded to the ‘Show Cause’ letter in a reply sent on his behalf by the Union. He was interviewed in the Level 3 Investigation and in the ONRSR Investigation. In both cases, he was not limited or hindered in any way as to what he could say to explain the incidents of 1 August 2015. He had a further opportunity to be interviewed during the disciplinary investigation, but declined on advice from the Union. It is not immediately apparent why he refused to participate, given his willingness to be interviewed in the Level 3 Investigation and the Regulator’s Investigation. This is a factor which tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[335] In the period up to, and after the issuance of the ‘Show Cause’ letter, Mr Singh was represented by his Union. It is unclear why subsequent to this, the Union ceased to represent him. In any event, there was no refusal by the employer to allow Mr Singh to have a support person. This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[336] As this was a matter going to misconduct and not unsatisfactory performance, this is an irrelevant criterion in this case.

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 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 (ss 387(f) and (g))

[337] Sydney Trains is a large rail industry employer. It is required by the Regulator and its own policies and procedures to have a paramount focus on safety. Accordingly, it has a detailed and comprehensive suite of policies and procedures relating to safety incidents, investigations and disciplinary procedures. While I do not find any procedural unfairness issues in this case, it is incumbent on the Commission to express its concern at the length of time between the incidents on 1 August 2015 and the applicant’s dismissal on 30 November 2016. My concern was acknowledged by Mr Seck on behalf of Sydney Trains.

[338] Of course, I accept unreservedly, that there are complex, cross-functional processes in respect to rail incident investigations and disciplinary processes which must be followed according to specific timeframes. Ultimately, this is in order to ensure thorough and fair outcomes for those involved. However, I cannot accept that it is in the interests of justice, or in the public interest, to have a period of over 16 months between related incidents on a single day, to Mr Singh’s dismissal.

[339] I do not apprehend Mr Fagir’s case to include criticism of the lengthy period of time dimming the memory of witnesses as to what happened on the day (indeed the applicant claimed he had a near-perfect memory of what occurred). However, delays of this length will invariably test the memories of witnesses to the incidents, which of themselves were a matter of only a few minutes’ duration. There is also the stress, anxiety and uncertainty for the individuals involved as to whether their employment will be ended, or they will be otherwise disciplined. In addition, directing employees onto paid suspension for many months, could hardly be said to be an efficient or productive use of taxpayers’ money provided by the State to fund a public utility, such as Sydney Trains.

[340] Similar views were expressed by the South Australian Independent Commission Against Corruption, Hon Bruce Lander QC, in his 2015/2016 Report to the South Australian Parliament. At page 54, Mr Lander said:

‘I have become aware of many instances where a public officer has been suspended with pay while allegations of serious misconduct are investigated. It is, of course, entirely proper that a public officer suspected of very serious misconduct is directed away from the workplace while the matter is investigated. Depending upon the industrial regime that applies to that public officer, the officer may continue to receive remuneration while suspended.

However, in a number of cases I am troubled by the time taken to investigate allegations of misconduct where a public officer remains on pay. I accept that, in some cases, delays are inevitable due to the complexity of the investigation and other factors, such as concurrent criminal proceedings. However, in other cases there appears to be no adequate explanation for the sometimes significant delays in bringing the disciplinary process to a conclusion.

Where a public officer is suspended with pay for extended periods of time, there are many losers. The public officer himself or herself remains in a ‘holding pattern’ unaware of his or her future. Public authorities must expend money on remunerating a public officer for extended periods of time without that public officer discharging his or her duties, with the financial impact often compounded by the need to bring in additional human resources to ensure continuity in services. Ultimately the community must bear these financial costs.’

[341] That said, I strongly recommend that Sydney Trains and the Unions who have members employed by Sydney Trains, undertake a review of the current processes for investigating incidents and disciplinary outcomes for employees who are alleged to have breached safety rules or procedures.

Any other matters (s 387(h))

[342] As to Mr Singh’s submission concerning his claim of differential treatment (dismissal) compared to the others in the Team, I am not satisfied, particularly given my conclusions as to Mr Singh’s culpability in the incidents on 1 August 2015, that such a submission can be accepted. In Sexton v Pacific National (ACT) Pty Ltd Print 931440, Lawler VP dealt with the question of differential outcomes for similar misconduct in unfair dismissal cases. At [36], His Honour said:

‘[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round" within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing "apples with apples". There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.’

[343] In essence, Mr Singh’s differential treatment argument really stems from his overriding submission in this case, that he had done nothing wrong in the incidents on 1 August 2015. In these circumstances, it seems logical to assume that Mr Singh would not have accepted any other disciplinary outcome, had Sydney Trains decided to take a decision, other than dismissal. When viewed in this way, it is curious that such a submission would be seriously put. In addition, I do not accept Mr Singh was ‘singled out’ compared to the others in the Team. Mr Chawdhury, of course, was also dismissed, and on one view, it may be said Mr Chawdhury’s culpability was not as egregious as Mr Singh’s. Mr Kolevski and Mr Ivanovski were demoted. It is apparent Mr Singh’s main criticism, concerns Mr Lynn’s penalty of a reprimand.

[344] At [285] Mr Seck identified the factors which differentiated the disciplinary outcomes between Mr Lynn and Mr Singh. In my view, these factors form a sound basis to conclude Mr Lynn’s reprimand was reasonably open to Sydney Trains. To suggest otherwise is not comparing ‘apples with apples’. Overall, I consider Sydney Trains’ approach to penalty for all members of the Team, to have been reasonable and proportionate.

[345] I have taken into account Mr Singh’s very long period of exemplary service, his advanced age and unlikely prospects of alternative employment. I have earnestly grappled with the issue of whether these factors of ‘harshness’ outweigh the seriousness of the incidents on 1 August 2015, and Mr Singh’s culpability in them. Regrettably, I am satisfied that they do not. On one view, an employee’s long period of service will actually tell against a finding of ‘harshness’, where it might ordinarily be expected the employee would be very familiar with an employer’s safety policies and procedures and where the employee has been properly trained and is an experienced safety officer, as was Mr Singh. In short, a long serving employee would be expected to know better.

[346] Even if these ‘harshness’ elements tipped the balance in favour of an unfairness finding, Mr Singh seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be utterly unthinkable in circumstances where he refuses to accept any responsibility at all for the incidents of 1 August 2015 and casts the entire blame on Sydney Trains and his fellow employees. There was not a skerrick of remorse - no regret for his actions - no apology - no contrition.

[347] A recent Full Bench decision of the Commission in Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 granted permission to appeal on two public interest grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.

Later in the decision, the Full Bench said at [28]-[29]:

‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”

[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’

[348] Given Mr Singh’s own evidence, I could not be at all confident that he would not act in a similar way in similar circumstances, or take a similar cavalier approach to his responsibilities as Team Leader. He ignored his responsibilities as a PO4 for which he had been trained. He disregarded the cardinal safety policies and procedures of Sydney Trains, notwithstanding he claimed he had a good knowledge and awareness of them. His belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer’s trust and confidence in him has been permanently destroyed.

[349] Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[350] Relevant to the above object, in BHP Coal Pty Ltd t/a BMA v Schmidt [2016] FWCFB 1540, a Full Bench of the Commission said at [8]:

‘The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.’

[351] For the above reasons, I find that Mr Singh’s dismissal on 30 November 2016, was neither ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. His dismissal was not unfair. Accordingly, his application for an unfair dismissal remedy is dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both Mr Singh and Sydney Trains.

gnature Block 181213

DEPUTY PRESIDENT

Appearances:

Mr O Fagir of Counsel, for the applicant.
Mr M Seck of Counsel, and Ms A Sharp, Solicitor, for the respondent.

Hearing details:

2018.
Sydney,
6 April (site visit), 9 April, 10 April, 11 April, 23 July, 24 July, 25 July, 20 August, 23 August.

Printed by authority of the Commonwealth Government Printer

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