Federal Court of Australia

Singh v Sydney Trains [2020] FCA 1521

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding is Mr Subeg Singh. The First Respondent is Sydney Trains. The Second Respondent is the Fair Work Commission (the “Commission”).

2    Prior to his dismissal in November 2016, Mr Singh had been employed by Sydney Trains as a Team Leader, Track and Structures. He had been employed by Sydney Trains and its predecessors for about 34 years. Sydney Trains took the decision to dismiss Mr Singh by reason of his involvement in two separate safety incidents “while his team was carrying out track measurements”. That work occurred on 1 August 2015 on railway lines in the Sydney area – one incident being referred to as the Allawah Incident; the other being referred to as the Kogarah Incident. The decision to dismiss Mr Singh was taken after he had been informed in May 2016 that these two incidents were to be the subject of misconduct allegations and an investigation. That investigation was undertaken by an external professional safety investigator, Ms Kerry Walker. An Investigation Report was completed in around July 2016. Another member of Mr Singh’s team, Mr Chawdhury was also dismissed. Two others were demoted and the Technical Supervisor in the team, Mr Andrew Lynn, was reprimanded.

3    In October 2016, prior to the decision to dismiss him taking effect, Mr Singh filed an unfair dismissal application with the Commission. That application was dismissed in June 2019: Singh v Sydney Trains [2019] FWC 182. An application was thereafter made by Sydney Trains seeking an order for the payment of its costs. That application was resolved in favour of Sydney Trains in September 2019: Singh v Sydney Trains [2019] FWC 6620. Mr Singh sought permission to appeal to the Full Bench of the Commission against the unfair dismissal decision and also the costs decision. In February 2020, the Full Bench refused permission to appeal the unfair dismissal decision: Singh v Sydney Trains [2020] FWCFB 884. No decision has yet been made by the Full Bench in respect to the costs decision.

4    In June 2020, Mr Singh filed an Originating application in this Court relying upon s 39B of the Judiciary Act 1903 (Cth). Such relief as is now sought includes an order quashing the June 2019 decision of the Commission. In very summary form, Mr Singh contends that the Commission when dismissing his unfair dismissal claim had either failed to exercise the jurisdiction entrusted to it or had constructively failed to exercise that jurisdiction. The failure was said to arise by reason of the Commission not properly addressing a number of “clearly articulated” submissions which had been advanced.

5    It is concluded that:

    the Commission did not fail to properly exercise the jurisdiction entrusted to it – the Commission, it is concluded, properly “satisfied” itself that the dismissal of Mr Singh was not “harsh, unjust or unreasonable” within the meaning of and for the purposes of s 385(b) of the Fair Work Act 2009 (Cth) (the “Fair Work Act”).

In reaching that conclusion, it is further respectfully concluded that the Commission took “into account” for the purposes of s 387 of the Fair Work Act:

    “whether there was a valid reason for the dismissal related to [Mr Singh’s] capacity or conduct” (s 387(a)); and

    “any other matters” it considered relevant (s 387(h)), being an allegation by Mr Singh that he had been treated in a different manner than his colleague, Mr Lynn.

Although these conclusions are sufficient to dictate the fate of Mr Singh’s Originating application to this Court, and assuming it be of relevance to determine whether there were a series of “clearly articulated” submissions advanced on Mr Singh’s behalf before the Commission, it is further concluded that:

    there was no duty upon the Commission to resolve each of the submissions advanced on behalf of Mr Singh, the duty being to resolve the gist of the substantive allegation being made against him – namely the generally expressed allegation that he “failed to follow safety policies, procedure and guidelines …… including failing to carry out [his] duties safely and reasonably…”.

It is nevertheless also further concluded that:

    the Commission resolved not only the general allegation being made against Mr Singh;

but also further resolved:

    each of the Particulars provided in respect to the general allegation;

and, in doing so:

    sufficiently addressed the gist of the submissions in fact made in respect to these Particulars.

Given these conclusions, it is unnecessary to consider whether Mr Singh’s application for permission to appeal the Commission’s decision to the Full Bench and the decision of the Full Bench would also have precluded any relief being granted. The Originating application did not seek to quash the February 2020 decision of the Full Bench.

6    It is thus concluded that the Originating application should be dismissed.

The Show Cause letter & the decision to dismiss

7    If reference is made to the “Show Cause” letter given to Mr Singh in August 2016, the allegations being made by Sydney Trains against Mr Singh and the two incidents the subject of investigation were there expressed 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 finalised. 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 allegation are:

Planning and Carrying Out Work

(a)    During the course of planning and carrying out the work, you utilised 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

(b)    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 of approaching train service 613E, on Up Illawarra Local Line, requiring a member of the Work Group to ‘jump out of the way’ of the approaching train.

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

(d)    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

(e)    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.

…

(formal parts omitted)

An application for unfair dismissal – the function entrusted to the Commission

8    Part 3-2 of the Fair Work Act provides for the making of an application by an employee for unfair dismissal.

9    Of relevance to the function of the Commission in resolving such applications are the Objects of that Part as set forth in s 381 in relevant part as follows:

Object of this Part

(1)    The object of this Part is:

(a)    …; 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.

…

10    Section 385 relevantly identifies as follows, that which constitutes unfair dismissal:

What is an unfair dismissal

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

….

And s 387 relevantly identifies as follows, the “criteria” that the Commission “must take into account” when considering whether the dismissal of an employee was “harsh, unjust or unreasonable”:

Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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

…

 (h)    any other matters that the FWC considers relevant.

11    It is s 575 of the Fair Work Act, found within Div 2 to Ch 5, which “continue[s] in existence” the body which was formerly Fair Work Australia as the Fair Work Commission. Within that Division, s 576 sets forth the “functions” of the Commission including “the functions conferred by this Act in relation to … unfair dismissal”: s 576(1)(i). Section 577 again repeats as follows the mandate to the Commission to “perform its functions” in an informal manner:

Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a)    is fair and just; and

(b)    is quick, informal and avoids unnecessary technicalities; and

(c)    is open and transparent; and

(d)    promotes harmonious and cooperative workplace relations.

…

Section 578 thereafter relevantly identifies the “matters” the Commission “must take into account” when “performing functions” as follows:

Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a)    the objects of this Act, and any objects of the part of this Act; and

(b)    equity, good conscience and the merits of the matter; and

…

When performing its “functions”, the Commission “is not required to hold a hearing…” (s 593(1)) and “may grant permission for a person to be represented by a lawyer…” (s 596(2)). Consistent with the lack of formality with which the Commission may proceed, s 591 provides as follows:

FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).

In respect to the decisions made by the Commission, s 601 of the Fair Work Act provides that not all of its decisions need be in writing but further provides as follows:

Writing and publication requirements for the FWC’s decisions

…

 (2)    The FWC may give written reasons for any decision that it makes.

(3)    A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.

THE ABSENCE OF JURISDICTIONAL ERROR

12    Expressed in very general terms, Mr Singh’s unfair dismissal application before the Commission was that:

    there was no valid reason for his dismissal within s 387(a) of the Fair Work Act 2009 (Cth); and

    it was of relevance for the Commission to consider – and it failed to consider pursuant to s 387(h) – what were referred to in his Outline of Submissions to this Court as “the differential treatment afforded to Mr Singh and other workers, particularly his colleague, Mr Andrew Lynn”.

The Commission, it was contended before this Court, had failed to exercise the jurisdiction entrusted to it (or had constructively failed to do so) when resolving each of these two subject matters of dispute.

13    Counsel on behalf of Sydney Trains rejected any contention as to there being on the part of the Commission either a failure to exercise or a constructive failure to exercise jurisdiction. Approached against the statutory background, Counsel for Sydney Trains contended that:

    the statutory task entrusted to the Commission in the present case was to reach a state of “satisfaction” as to whether Mr Singh’s dismissal was “harsh, unjust or unreasonable” (s 385(b));

    in reaching that state of satisfaction, the Commission was required to – i.e., it “must take into account” (s 387) – whether there was “a valid reason” for the dismissal and whether there was “any other matter” that it considered to be relevant (s 387(a) and (h)) and that the Commission had in fact done so;

and, when reaching the state of “satisfaction” as to whether there was “a valid reason” for the decision:

    the Commission need not be “satisfied” by reference to whether all of the reasons for the decision of Sydney Trains to dismiss Mr Singh had been made out but rather to be satisfied whether there was “a valid reason” for that decision.

When discharging that “function”, Counsel for Sydney Trains emphasised that:

    the procedures whereby the Commission made its decision were necessarily required to be “quick, flexible and informal” (s 381) – albeit procedures which nevertheless had to remain “fair and just” (s 577(a));

    the Commission was not “bound by the rules of evidence” – and hence could place reliance upon (inter alia) the Level 3 Report (s 591); and

    the Commission was not required to “give reasons” (s 601(2)) – but accepted that where reasons were provided, as in the present case, those reasons could be reviewed with a view to determining whether there had been any error (cf. Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105 at [52] to [54], (2009) 179 FCR 323 at 337-338 per Flick J (Spender and Lander JJ agreeing); Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177 at [72], (2017) 246 FCR 146 at 165 per Kenny, Flick and Griffiths JJ).

Each of Mr Singh’s generally expressed submissions as advanced before the Commission should be separately considered.

A valid reason for dismissal – s 387(a)

14    Albeit not bound by the course of reasoning whereby Sydney Trains determined that Mr Singh should be dismissed, the Commission nevertheless followed much the same path. It expressed its conclusion that there was “a valid reason” for Mr Singh’s dismissal as follows:

[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.

15    If the acceptance by the Commission that each of the “specific allegations” in the Show Cause letter “had been proven” be presently left to one side, there can be no suggestion that the Commission failed to direct its attention to the more generally expressed concern as to whether Mr Singh had “failed to follow safety policies”. One instance of the conduct of Mr Singh giving rise to concerns as to safety arose by reason of his leaving his lookout position. On each crew there were two lookouts – one for one direction of travel and another for the other direction. The occasion when Mr Singh left his lookout position was explored by the Commission as follows in its “earlier discourse” preceding its conclusion:

[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 [Counsel for Mr Singh] 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 ...

…

[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.

…

(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 …

The Level 3 Report which is referred to in para [243] of the Commission’s Reasons confirms the “senior” position occupied by Mr Singh as “Team Leader”. The Level 3 Report, consistently with the conclusions of the Commission, also rejected Mr Singh’s attempt to characterise his involvement as a “minimal role”. The Level 3 Report thus relevantly states:

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 to report any safety issues and each team member has an 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 that 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 (see discussion below).

The Level 3 Report goes on to further state:

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 their 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.

…

The Team Leader fulfilling the role of Lookout was the most senior person on the team.

16    The fact that para [320] appears in the context of the Commission providing reasons to question the credibility and reliability of Mr Singh’s evidence as a whole does not detract from the fact that it exposes the Commission engaging with and analysing the submissions being advanced on his behalf. Nor is there difficulty with the Commission informing itself and placing reliance upon the facts set forth in the Level 3 Report and the conclusions of the independent investigator, Ms Walker. The Commission is “not bound by the rules of evidence”: s 591.

17    As submitted on behalf of Sydney Trains, even this limited reference to the reasoning of the Commission and the materials available to it (including the Level 3 Report) is sufficient to conclude that:

    the Commission was “satisfied” that there was “a valid reason” for the dismissal of Mr Singh (s 387(a)), that reason being his failure “to follow safety policies, procedures and guidelines that applied to his work, including failing to carry out his duties safely and reasonably…”.

The Commission expressly recognised the statutory necessity for it to be satisfied that there was “a valid reason for dismissal” (Reasons at para [312]) and what is meant by that phrase (Reasons at para [324] to [332]).

18    Nor can there be any doubt that the Commission directed its attention – as it “must” do (s 387(h)) – as to whether:

    there was “any other matter” that it considered relevant, in this case, whether Mr Singh had been treated in a different manner to the others involved in the two incidents identified in the Show Cause letter.

This “matter” was expressly addressed in the Commission’s Reasons at paras [342] to [344].

19    It was in this context that the Commission turned its attention to whether Mr Singh’s dismissal was “harsh, unjust or unreasonable” as required by s 385. The Commission expressly referred to the terms of s 387 and the matters to which it “must” have regard when resolving this question: Reasons at para [301] to [304]. It went on to inform itself as to what was meant by this phrase by reference to the observations of McHugh and Gummow JJ in Byrne and Frew v Australian Airlines (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ: Reasons at para [305]. The Commission then resolved this question as follows:

[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.

20    It is thus concluded that the Commission reached a state of “satisfaction” for the purposes of s 385 that Mr Singh’s dismissal was not “harsh” and in doing so took “into account” – as it “must” do as required by s 387(a) – whether there was “a valid reason” for the dismissal.

Differential treatment – s 387(h)

21    For the purposes of s 387(h) of the Fair Work Act the only “other matter” relied upon by Mr Singh before the Commission, and now relied upon in this Court, was whether he had been treated differently to the others who had been involved in the two incidents relied upon in the Show Cause letter.

22    The Commission outlined the argument advanced before it as follows:

[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.

23    In addressing the comparison between Mr Lynn and Mr Singh, the Commission recounted the submission made by Counsel on behalf of Sydney Trains as follows:

[285]    In dealing with unequal treatment, Mr Seck [Counsel for Sydney Trains] 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.

The Commission then resolved this issue at paras [345] and [346].

24    The argument advanced on behalf of Mr Singh – namely that Mr Lynn was the employee with whom Mr Singh should have been compared – misses its mark. No error is exposed by the Commission directing its attention to the arguments presented and in rejecting Mr Singh’s argument. The Commission in its Reasons (e.g., at para [343]) was fully aware of the involvement of the other members of the crew on 1 August 2015, including Messrs Lynn and Chawdhury. Although it remained a matter for the Commission to resolve, it is respectfully considered that Mr Chawdhury was (in any event) the “closest match”.

No failure to exercise jurisdiction

25    In such circumstances, no conclusion is open that the Commission failed to exercise the jurisdiction entrusted to it by Pt 3-2 of the Fair Work Act or constructively failed to exercise that jurisdiction. In exercising that jurisdiction, there was no necessity for the Commission to examine the facts in any greater detail; in particular, there was no necessity for the Commission to go on and explore each of the submissions which had been advanced on behalf of Mr Singh, and address (for example) each of the submissions as to how conflicts in evidence should be resolved.

26    It was open to the Commission to resolve the issues presented by s 387 of the Fair Work Act through the prism of the Show Cause letter. It was sufficient for the Commission to discharge the tasks imposed by s 387 as to whether there was “a valid reason” for Mr Singh’s dismissal by reference to the broadly expressed “allegation” as set forth in that letter, and to test that “allegation” by reference to one or other of the identified Particulars. There was no greater obligation imposed upon the Commission to resolve each and every Particular and to do so by reference to each and every one of the submissions advanced on behalf of Mr Singh.

27    The Originating Application should thus be dismissed.

THE SHOW CAUSE LETTER – CLEARLY ARTICULATED SUBMISSIONS

28    Although on the case advanced on behalf of Sydney Trains it need to go no further, Counsel on its behalf submitted that the Commission had not either failed, or constructively failed, to exercise the jurisdiction entrusted to it, even if its decision-making tasks were to be gauged by reference to the manner in which it had resolved either:

    the general Allegation; and/or

    the Particulars as set forth in the Show Cause letter.

On the approach pursued by Sydney Trains, the Reasons of the Commission should be construed as Reasons directed to its separate consideration of the general Allegation and thereafter separate consideration of each of the Particulars. On the approach of Mr Singh, the Commission had in fact followed the course of resolving the claim by reference to the terms of the Show Cause letter, that course of reasoning being the resolution of the general Allegation by reference to the Particulars: Reasons at [7] and [306]. Because the Commission approached its task in that manner, it was not open to conclude that the consideration given by the Commission to the general Allegation could be separated from its consideration of the Particulars. On this approach, any failure to consider a centrally relevant submission in respect to any part of the reasoning of the Commission, including its consideration of the Particulars, would presumably have the consequence that the decision as a whole was exposed to jurisdictional error. Expressed differently, Counsel for Mr Singh contended that the task of the Commission was to resolve the claim as made by Mr Singh, challenging the decision of Sydney Trains made for the reasons expressed in the Show Cause letter. Standing separate from:

    the conclusion that the Commission has properly reached a state of “satisfaction” as to there being a valid reason for the dismissal of Mr Singh and that it had taken into account “any other matter” being his alleged “differential treatment”,

is the further conclusion of present relevance that:

    a failure to resolve a centrally relevant submission directed to one of the Particulars could not be taken to vitiate the Commission’s separately expressed conclusion in respect to the general Allegation.

The reasoning of the Commission, it is thus concluded, is best construed as the expression of reasons separately addressing the general Allegation and the Particulars. So construed, a submission of central relevance to any given Particular which has not been resolved, would not be a submission of central relevance to the resolution of the more generally expressed Allegation. But such distinctions, with respect, are the expression more of matters of sophistry than substance. There has been no failure on the part of the Commission to resolve any submission having central relevance to the manner in which it resolved either the general Allegation or the Particulars.

29    In very summary form, Mr Singh in his written Outline of Submissions contends in this Court that the unfair dismissal decision of the Commission should be quashed by reason of the Commission failing to take account of a series of “substantial and clearly articulated arguments, relying upon established facts”, which were advanced in support of Mr Singh’s case. In the alternative, it is contended in the Outline of Submissions that the Commission “constructively failed to exercise its jurisdiction by failing to consider the substance of Mr Singh’s case”. Articulated in such generally expressed terms, and given the detailed attention given by the Commission to the terms of the Show Cause letter, it is a submission which is not self-evidently correct. Even by reference to the more specific submissions outlined in Mr Singh’s written Outline, the argument (with respect) lacks merit.

30    Left to one side for present purposes is the generally expressed finding made by the Commission that “[t]he specific allegations, as set out in the ‘Show Cause’ letter of 5 August 2016, have been proven…”: Reasons at [332]. For present purposes and contrary to the conclusion in fact reached by this Court, it has been assumed that the written Reasons provided by the Tribunal need go further than its conclusion at [332] and address and resolve in greater specificity the more detailed submissions advanced on behalf of Mr Singh in respect to the Particulars provided in that letter.

31    It is, accordingly, prudent to both:

    outline the general legal principles to be applied in resolving the argument; and

    apply those principles to the more specific instances now relied upon as matters in respect to which submissions were advanced but not addressed or resolved by the Commission.

For these purposes it has been assumed, contrary to the conclusion in fact reached, that a failure to resolve a submission of central relevance to one or other of the Particulars would of itself strip the Commission of jurisdiction.

The legal principles – an outline

32    The legal principles of relevance to the case were not in dispute.

33    It is sufficient for present purposes to refer to the following summary of principles as outlined in Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 at 191-192 (“Linfox Australia”). Dowsett, Flick and Griffiths JJ there said:

[46]    Given Linfox’s reliance on the asserted failure to address particular submissions, it is prudent to recall at least two propositions.

[47]    First, it is not necessary for those making a decision to refer to “every piece of evidence and every contention” made by a party: … Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists …, more may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners: … But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made. A failure to address a submission which is “significant” and which touches upon the “core duty” being discharged … or which is “centrally relevant” to the decision being made … may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error.

[48]    Secondly, a decision-maker called upon to make a decision is generally required to resolve the claims made; there is no general requirement to resolve a claim “never made, which might have been put on another basis”: … There can be neither an “error of law” nor a “question of law” where a decision-maker does not deal with a submission which is not advanced for resolution: … As a general rule, no error is committed by a decision-maker in not addressing issues of fact and law not the subject of argument: …

[49]    Considerable care should thus be exercised before too readily agreeing with a proposition that error was exposed by either the Full Bench (when entertaining the appeal from the decision of the Commissioner) or the Commissioner in not resolving a submission not previously advanced. Considerable care should also be exercised before too readily agreeing with a proposition that either the Commissioner or the Full Bench erred in not more extensively resolving a submission which may have been only indirectly advanced.

[50]    But such difficulties may presently be left to one side.

[51]    None of the arguments now sought to be advanced in this Court should prevail. The Further Amended Originating Application should be dismissed.

(citations omitted)

34    The competing submissions of the parties to the present dispute are not to be resolved, with respect, by reference to differences of expression from one authority to another as to the identification of those submissions which have to be resolved in order for a decision-maker to properly discharge the statutory functions entrusted to it, but rather by an identification of those submissions which were in fact made and not resolved.

35    Each of the Particulars provided in the Show Cause letter was considered by the Commission. Even if it were necessary to consider whether the Commission had satisfactorily engaged with the gist of each of those Particulars and the submissions being advanced, no error is exposed by the approach in fact taken by the Commission.

The findings as to credibility

36    At the heart of the case advanced on behalf of Sydney Trains were at least two matters, namely the Commission’s:

    adverse findings as to credibility of Mr Singh: Reasons at [316] to [321], [332]; and

    reliance upon the Level 3 Report.

Each should be addressed separately at the outset.

37    First, in an apparent attempt to circumvent the credibility findings, Counsel on behalf of Mr Singh sought to emphasise that such findings assumed little (if any) relevance to the manner in which at least some of the Particulars were resolved by the Commission.

38    Tested by reference to what may be perceived as the most important of the Particulars, namely the use of the “Lookout Working” method of protection, the submission was that the gist of this Particular was addressed to the utilisation of the “Lookout Working” method of protection, and had little to do with adverse credibility findings. The adverse credit findings, it was thus submitted, were not an adequate basis upon which this Particular could be found to have been resolved. It was incumbent upon the Commission, so the submission advanced to this Court maintained, to go on and resolve the submissions in fact advanced, including the submission advanced as to Mr Lynn’s acceptance of responsibility. If the resolution of Mr Lynn’s involvement is left to one side, of present importance is the fact that the adverse findings as to Mr Singh’s credibility formed a significant part of the reasoning of the Commission: Reasons at [316] to [321], [332].

39    Care must thus be exercised before accepting that because – as Mr Singh unjustifiably asserts – credibility findings are irrelevant there is greater imperative to resolve other separate submissions advanced on his behalf. That imperative may well follow; but the importance of the adverse credibility findings to the resolution of each of the Particulars cannot be side-lined in the manner advocated by Mr Singh in this Court.

40    Second, the Level 3 Report and the Regulator’s Report were unquestionably of importance to the reasoning of the Commission. So much is readily apparent from the Reasons of the Commission where it is expressly stated that the Commission “rel[ied] particularly on the evidence of the Level 3 Report and the Report of the Regulator”: Reasons at [332]. The Level 3 Report was the Report issued on 31 October 2015; the Regulator’s Report was that provided to Sydney Trains by the national rail safety regulator in 2015 and titled Operational Investigation Report. Criticisms directed to, for example, the Level 3 Report, or at least reservation as to the Commission’s reliance upon this Report, included that:

    a different task was entrusted to the author of that Report as opposed to the task of the Commission;

    it was the Commission which had the opportunity to hear from witnesses and their evidence under cross-examination; and

    the Report is by its nature “second-hand hearsay”.

Again, for present purposes, such reservations as to the extent of the reliance which the Commission could properly place upon this Report may presently be left to one side. Of present relevance is that the Commission left unresolved the submission advanced on behalf of Mr Singh that preference should be given to the evidence of the witnesses before the Commission. Some of these witnesses, so the submission continued, supported Mr Singh’s account. Yet this competing evidence was, it was said, left unaddressed by the Commission.

41    The reasons for reservation may be accepted. Yet the fact remains that both parties in the proceeding before the Commission sought to place reliance upon the Level 3 Report. Indeed, there is an apparent shifting of ground on the part of Mr Singh from the position he adopted before the Commission and that now adopted. Before the Commission, a submission there made was as follows (without alteration):

122.     More helpful that the witness statements is the L3 Report, eventually produced by Sydney Trains under compulsion of an Order for Production. Although the L3 Report itself suffers from a number of deficiencies––not least of which that the author spoke to Mr Singh only for an hour––it has the advantage that it was not prepared for this litigation and therefore inherently more reliable than the witness commentary.

Before this Court, a submission left unresolved by the Commission – so it is said on behalf of Mr Singh – is that the Commission did not explain why it placed the reliance upon the Level 3 Report without addressing the competing evidence. And those differences, it may be further accepted, were of some moment. Later in the written submissions placed before the Commission, there was a comparison between the evidence witnesses had given to the Commission and statements made in the Level 3 Report. This Table provided the following comparisons (without alteration):

Annexure A––Comparison of Bugeja statement to L3 Report

(footnotes omitted)

42    The difficulty with the submission is that the Table seeks to highlight what was not resolved, rather than what was in fact resolved. Although the manner in which each of the Particulars was resolved by the Commission necessarily has to be considered by reference to each individual Particular, the general response to Mr Singh’s case is that there is no duty on the part of the Commission to resolve each individual submission and each conflict (for example) that may exist between the evidence of a witness before it and a report upon which the Commission may place reliance. The duty of the Commission, generally expressed, is to resolve the gist of the case presented before it for resolution. The Commission, it is concluded, complied with that duty.

43    But the reasons given by the Commission for the manner in which it resolved each Particular should be reviewed in order to determine whether it in fact resolved the gist of each of the more specific allegations being made in the Particulars.

Planning and carrying out work

44    The submission made with respect to the first of the Particulars as set forth in the Show Cause letter was variously expressed. One iteration is the following as set forth in Mr Singh’s written submissions as filed with the Commission (without alteration):

Given that Mr Singh was neither Supervisor nor Protection Officer, it is difficult to understand how it is said he utilised looking working. Presumably the effect of the allegation is that Mr Singh’s failure to refuse to work using the lookout method was misconduct. That allegation is put in circumstances where:

(a)    Not only was there no rule prohibiting the use of lookout protection for track measurement, but in fact lookout working was the usual method used for measurement work and had been used for measurement work many times in the relevant locations.

(b)    The WPP method was accepted by the Protection Officer, the Supervisor and the two other members of the work group, each of whom was an experienced and highly trained employee who was (unlike Mr Singh) familiar with the relevant tracks.

(c)    A Sydney Trains safety coach who was later asked to review the WPP gave it a score of 91 out of 100.

(d)    Mr Singh asked, and the Protection Officer confirmed, that the Hazardous Locations Register had been consulted.

(footnotes omitted)

These submissions were further developed by Counsel for Mr Singh in oral submissions.

45    A principal thrust of the submission was that Mr Singh was “neither the Supervisor nor Protection Officer”. It was Mr Singh’s case that he did not have supervisory responsibilities on the day. If accepted, responsibility was sought to be shifted from himself to (in particular) Mr Chawdhury. In oral submissions before the Commission, Counsel for Mr Singh submitted that it was Mr Chawdhury who prepared the workplace protection plan and “during the briefing” Mr Singh had asked questions “about the hazardous locations register”. Expressed differently, it was Mr Singh who was questioning a course for which others assumed responsibility.

46    The Commission resolved this submission and addressed the details of the submissions made at various parts of its Reasons. Without canvassing the Commission’s Reasons in detail, it is sufficient to note that the Commission addressed the involvement of Mr Singh when accepting that he “did not plan or supervise the work” but also recorded the concession made by his Counsel that he “had a general obligation to take care of his own and his colleagues’ safety”: Reasons at [243]. The Commission further addressed the detail of this submission in its finding that Mr Singh had “signed off on” the workplace protection plan and in its rejection of Mr Singh’s suggestion that “someone had forged his signature”: Reasons at [320]. Mr Singh’s suggestion of forgery was presumably a yet further attempt to distance himself from responsibility. The Commission further addressed the issue of Mr Singh’s role (at least in part) in its conclusions that Mr Singh had impermissibly sought to present himself as having a “minimal role” in circumstances where he in fact was the person assuming greater responsibility: Reasons at [332].

47    But an instance of a submission or evidence relied upon by Mr Singh which went to this Particular was the concession obtained by Counsel for Mr Singh from one of the witnesses called on behalf of Sydney Trains (Mr Polias). During the course of Mr Polias’ cross-examination there was this exchange of relevance to the first Particular:

MR FAGIR:    Mr Polias, I’d just like to start by clearing up a few matters that we discussed yesterday if I can before forging ahead. Firstly, I think I put to you and you agreed that as far as you know based on the statements that you have read, Mr Singh neither planned nor supervised work on 1 August 2015. Have I got that right?––Yes, that’s correct, yes.

The cross-examination continued:

It follows, doesn’t it, that Mr Singh had no obligation to check the register himself?––Yes, that’s correct.

I asked you some questions about the register and I think I ultimately put to you and you agreed that there are areas where the register prohibits Lookout Working. It says you have to have at least ASB?––Yes, there is, yes.

The areas at Allawah and Kogarah that we are discussing in this case, are not areas where Lookout Working is prohibited?––The areas where they did work under Lookout Working, that's correct, yes.

They’re not prohibited?––In the areas where they worked under Lookout Working.

The fact that Mr Polias agreed with the proposition put to him in cross-examination that Mr Singh had “neither planned nor supervised” the work, is obviously consistent with the written submission expressly advanced to the Commission on behalf of Mr Singh as follows:

Despite the respondent’s efforts to create ambiguity as to Mr Singh’s role in the work group––for example by describing Mr Singh as having “the most senior substantive position”—it is perfectly clear that Mr Singh had no supervisory responsibility.

(footnotes omitted)

48    Any suggestion that the reasoning of the Commission needed to descend to why it did not proceed upon the basis of the concession obtained from Mr Polias is rejected. It could have addressed that evidence – but there was no imperative to do so. The Commission gave the reasons it did, those reasons addressing the substance of the first Particular. Any invitation extended by Counsel on behalf of Mr Singh to extend either the scope of jurisdictional error or procedural fairness to a duty to address each piece of evidence is rejected. To do so, especially in the circumstances of the present case, where the evidence has been so thoroughly trawled through by the legal representatives of Mr Singh, would be to impose an impossible burden upon the Commission, albeit a body constituted by an experienced lawyer. The fact that a specific submission has been advanced does not, with respect, elevate the necessity for the Commission to address each and every piece of evidence and each and every submission.

49    The Commission, it is concluded, thus sufficiently engaged with the principal thrust of the submission being made in respect to this Particular. There was, accordingly, neither an actual failure nor a constructive failure to discharge its functions in respect to resolving this Particular.

Missed a warning light

50    In furtherance of the generally expressed Allegation that Mr Singh had “failed to follow safety policies, procedures and guidelines … including failing to carry out ... duties safely and reasonably”, the gist of the second Particular is that Mr Singh had “missed” a warning light and failed to provide adequate warning to the work crew to “jump out of the way” of an approaching train.

51    With reference to this Particular, Mr Singh admitted that he had “missed” the warning light but in the written submissions filed with the Commission he submitted (without alteration):

For the reasons explained above, each of the allegations was unfounded. In short:

(a)    Mr Singh’s movement to a different position was necessitated by Mr Lyne’s decision to direct Mr Ivanovski to work unsafely on the Up Main line;

(b)    the incident was not a near miss, and no worker jumped out of the way of a train;

(c)    the incident was reported to the Network Controller, who took no further action; and

(d)    Sydney Trains itself did not label the incident a near miss until it took disciplinary action against Mr Singh.

52    Again, there can be no doubt that the Commission engaged with the gist of this submission being made on behalf of Mr Singh. It thus recounted Mr Lynn’s account of the incident as follows:

[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.

53    Rejected is the submission advanced on behalf of Mr Singh to this Court that this is but a further instance of the Commission merely setting forth the evidence without engaging with it and resolving (for example) a conflict in the evidence – in this case the conflict of the account given by Mr Singh as opposed to Mr Lynn, including the fact that Mr Lynn could not recall anyone “jumping out of the way” of the approaching train. In circumstances where the Commission had resolved questions of credibility and reliability adversely to Mr Singh, the Commission need do no more: Reasons at para [332]. The Commission, in any event, went further and seized upon this incident as but another reason for resolving the question of credibility and reliability adversely to Mr Singh. In addition to the reasons provided at para [332] and, indeed, in actually resolving the conflict in evidence between Mr Singh and Mr Lynn, the Commission had previously addressed these events when providing a number of “examples” of concerning aspects of Mr Singh’s evidence. As part of the “examples” provided, the Commission provided the following:

[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.

…

(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.

54    The Level 3 Report was also critical of Mr Singh’s conduct in this regard. That Report thus relevantly concluded:

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 to report any safety issues and each team member has an 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 that 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 (see discussion below).

The “Sutherland Team Leader” there referred to was Mr Singh. The Report nevertheless went on to be further critical of the conduct of Mr Singh when it wrote:

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 their 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.

The gravity of these failings was only underlined by the observation of the author of that Report that the failure to report “would have potentially avoided the Kogarah Incident”. It was a matter the author returned in the Conclusion where it was stated:

The work group missed a valuable warning opportunity for the method in which they were working. It is likely that if the Allawah incident had been reported and investigated appropriately, the work would have been modifies in such a way that that the Kogarah incident would not have occurred.

This part of the Report, it may be noted, was a matter which assumed importance in the proceeding before the Commission. The comments made in the Report formed the focus of at least some of the cross-examination of Mr Singh (Reasons at [190]) and was a matter again returned to in submissions advanced to the Commission by Counsel on behalf of Sydney Train Reasons at [266]).

55    The reasons of the Commission, it is to be recalled, expressly state that it relied “particularly on the evidence of the Level 3 Report”: Reasons at [332]. Although it may well be correct to submit on behalf of Mr Singh that the Level 3 Report could be subjected to a number of criticisms or reservations, including:

    the fact that it was the Commission proceeding which afforded a more complete opportunity for the parties to explore the facts in greater detail, including the opportunity afforded by accounts of the events being exposed to cross-examination; and

    an opportunity for Mr Singh to provide an explanation, or at least a greater opportunity, to explain why he had left his position and went to say something to Mr Lynn,

there is no difficulty or unfairness in the Commission relying upon the Level 3 Report in circumstances where:

    the Report itself was part of the material before the Commission, with both parties having the opportunity to address it findings and conclusions; and

    the reliance being placed upon the Report by the Commission was (inter alia) as a further source of reference from which other and possibly different accounts of the events could be drawn, those differences being known to the parties and the subject of submissions before the Commission.

The reliance placed by Mr Singh, for example, upon the Level 3 Report was noted by the Commission – it found “most concerning of all, in a classic worst case of ‘cherry-picking’, … 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”: Reasons at [320(1)].

56    One submission advanced on behalf of Sydney Trains in respect to the second Particular should be raised only to be rejected. The submission was that Mr Singh had admitted missing the warning light: Reasons [247]. But that, with respect, may say little as to:

    whether the mere fact of missing a warning light justified dismissal or whether the dismissal for this reason was “harsh, unjustified or unreasonable” (Fair Work Act, s 385(b)) or was “a valid reason for the dismissal” (s 387(a)); or

    whether the dismissal of Mr Singh for this reason could potentially have gone to whether he had been exposed to dismissal for “any other reason” (s 387(h)), namely “differential treatment”.

A failure to stop work & a failure to make a report

57    The third and fourth Particulars can be dealt with together. These are the Particulars which allege that Mr Singh had “failed to stop work and implement appropriate control measures” and Mr Singh’s failure to “compile or make any formal incident report…”.

58    The written Submissions filed on behalf of Mr Singh with this Court maintained in respect to these two Particulars that:

    there had been no “near miss”; and

    the incident had been reported to the network controller by the train driver.

In support of his submission that there had been no “near miss”, Mr Singh further submitted that:

    nobody had jumped out of the way of the approaching train;

    none of the witnesses described the incident as a “near miss”; and

    the comments of the train driver, being a witness not called by Sydney Trains, were “internally contradictory”.

59    This incident and these Particulars were specifically addressed in submissions made on behalf of Sydney Trains when the matter was before the Commission. The Commission’s Reasons thus record Counsel for Sydney Trains referring to the findings in the Report as follows (without alteration):

[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.’

The submission advanced on behalf of Sydney Trains is further recorded at para [268] and following. The Commission, it is respectfully concluded, did address and resolve in considerable detail these submissions in its Reasons at para [320(7)].

60    As but a further example of evidence and a submission made to the Commission, but purportedly not resolved, Counsel for Mr Singh at the resumed hearing in September 2020 pointed to the following submission made orally to the Commission:

The fact is Mr Bonatesta accepted that the only time he’d suggested to any person that there’d been a near miss at Allawah was in his statement made in these proceedings. Your Honour will recall, and I don’t ask your Honour to turn to it now but I’ll just read the relevant part of the transcript of the exchange. “The network controller asked Mr Bonatesta if there had been a near miss. He said, ‘I don’t know if I’d consider it a near miss. He was well out of the way.’ ‘Yes.’ ‘500 metres.’ ‘Yes.’ ‘It just gave me a bit of a scare, that’s all.’” I asked Mr Bonatesta whether that statement, “I don’t know whether I’d consider it a near miss, he was well out of the way”, was true. And he said that it was. So the objective facts are that Mr Bonatesta didn’t say the incident was a near miss. He didn’t report it as a near miss at the time or at any other time, and he didn’t engage the emergency brake which is what he would have done if he thought he was about to strike a worker. And it’s going back a little bit of time now but your Honour will recall that you had some conversation about the difference between what Mr Bonatesta did and the emergency brake. I suggested to him, “If you thought you were about to hit someone you would have gone to the maximum emergency brake and there was some debate about that but ultimately the fact is that he didn’t go to the emergency brake.

Mr Bonatesta was the train driver involved in what was characterised as the “near miss” in relation to the Allawah Incident. His evidence, not surprisingly, attracted attention during the Commission proceeding. At one stage he described the incident as “a pretty close call” but not as a “near miss” as the track worker was “well out of the way”. A Stopping Pattern Report for the day completed by Mr Bonatesta, however, stated: “Track worker on my line Near Miss!!!”. In addition to Mr Bonatesta’s statement to the Commission there was also a transcript of a call made by Mr Bonatesta to the Signaler in which he stated (inter alia) that he “just had a pretty close call”. The evidence of Mr Bonatesta, including his cross-examination and re-examination, was detailed in the reasons of the Commission: Reasons at paras [36] to [46]. Given this review of Mr Bonatestata’s evidence, it was open to the Commission to reach the conclusions that it did. The review of Mr Bonatestata’s evidence went beyond simply recounting the evidence given and descended into an identification of those parts of his evidence which were to assume relevance.

61    Although it may have been preferable for the Commission when reaching its conclusions to have gone further than simply recording that it had (inter alia) had regard to all of the “oral evidence of all of the relevant witnesses” (Reasons at [315]) and to have recorded at that part of its reasoning process a more explicit reference to the “oral evidence” to which it was referring, its failure to make a further reference to (for example) the evidence of Mr Bonatesta, exposes no error. The reasons of the Commission, it is respectfully concluded, have to be read both fairly and in context. The context included the fact that there was a considerable body of evidence and evidence of considerable detail. Having summarised or extracted those parts of Mr Bonatesta’s evidence which were to assume relevance to the conclusions reached, including the cross-examination as to the fact that he had not until making a statement to the Commission ever told anyone that the incident was a “near miss” (Reasons at para [43]), it cannot be concluded that the Commission failed to address and resolve (in this case) the evidence of Mr Bonatesta and the submission made orally to it.

62    No error is exposed in the reasoning of the Commission as to the manner in which it resolved the third and fourth of the Particulars as set forth in the Show Cause letter.

Allowing work to continue

63    The final Particular set forth in the Show Cause letter related to what was described as the “Incident at Kogarah” and was, in summary form, that Mr Singh had “failed to take care of the health and safety of [himself] and others in [his] Work Group by allowing work to continue, despite the lack of MVT and MSD, leading to Work Group Leader Mr Cane Kolevski being forced to run across the Down Illawarra Line reaching a safe place … approximately two seconds before train service 900 passed by …”. As Counsel for Mr Singh summarised the issue before the Commission, it was an allegation that “Mr Singh allowed work to continue despite lack of minimum warning time and safe distance”.

64    The Level 3 Report commented upon this incident (in part) as follows:

However, this at-risk behaviour was the last in a large number of at-risk behaviours that had gone before on this day. A better defined MSD may not have been complied with equally as many other safe practices were not. All five work group members demonstrated these at-risk behaviours, and/or did not correct their own or others behaviours. The apparent casual nature of the walking behaviours suggests that they are routine and normal. Routine behaviours are habits, and habits performed by a number of people constitute culture.

This work group had already had a near miss earlier that morning due to at-risk behaviours by another member. It was a warning call that was unreported and unheeded. Continuation of similar behaviours meant that another incident was highly likely to occur to one or other of the work group members.

The work group and other members of their team also had a four year history of similar incidents that have resulted in retraining and coaching. Similar behaviours are occurring widely by many and have been occurring uncorrected by layers of management for an extended period beyond a reasonable timeframe relative to the risks involved. Performance management at both local management and work group level is required.

The Commission, in finding that this Particular had also been made out, relied in part upon this Report and concluded:

[315]    ... 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.

65    In oral submissions before this Court, Counsel for Mr Singh pointed to the submissions made before the Commission that there was in fact minimum warning time and minimum sighting distance because Mr Singh could see the warning lights, and was using the “Lookout Working” method. Before the Commission it was argued that if there are warning lights in view, then there is the requisite time. Reference was also made (for example) to a portion of the cross-examination of Mr Polias, as follows:

One is, you can't do it, and the other one is you need to make an assessment about whether you can do it because there's issues with minimum sighting distance and minimum warning? ––That's correct, yes.

Now the locations of the two incidents were both in the second category, that is, lookout working was not prohibited at Allawah and at Kogarah?––Yes, it was not prohibited but they would have had to – they were required to meet the minimum sighting distance, and the location of the safe places.

…

And it's clear from the fact that there are warning lights and safe places in the location that it's contemplated that lookout work will be used at Kogarah station?––Yes, only for the up Illawarra local is there warning lights.

Yes, and of course Sydney Trains' procedures contemplate that people will use lookout working in areas where the register says, insufficient warning time and minimum sight distance?––It's based on their assessment on the day, sir.

66    The fact is that the Commission, in its specific reliance on the Level 3 Report and its broader findings regarding safety issues and the “at-risk” and “[r]outine behaviours” surrounding this incident, dealt with the submission advanced. Although the Commission could have explicitly in its Reasons rejected an argument that the correct procedures were followed by Mr Singh in relation to minimum warning times and distance, its consideration of that argument is subsumed in its other findings as to safety.

67    Again, no error is exposed in the manner in which the Commission resolved the submissions being advanced or the conclusion it reached.

Unresolved submissions?

68    It is thus respectfully concluded that the Commission did properly address and engage with submissions being advanced before it.

69    Although Counsel for Mr Singh resisted such a conclusion, on one approach it was contended on his behalf that it is what is missing from the Commission’s analysis which assumes primary significance. On this approach, it matters not what submissions the Commission did resolve. What matters most, according to this approach, is what the Commission did not resolve.

70    But the written Outline of Submissions as initially filed in this Court on his behalf, however, either unhelpfully failed to identify with any degree of precision (or at least selectivity) that which was not resolved by the Commission. Such a scatter-gun approach to written submissions is less than useful. Without a clear isolation of the submissions which were not resolved, it became a murky exercise in reaching any conclusion as to the potential significance of the submissions left unresolved by the Commission. But such criticism can, perhaps, be left to one side. During the course of oral submissions sufficient examples were identified against which the more generally expressed submission could be gauged.

71    If this difficulty, however, be presently left to one side, in very summary form Mr Singh’s written Outline of Submissions contended in respect to the more generally expressed “Allegation” that he had advanced before the Commission submissions which were left unresolved, including submissions, in relation to the Allawah Incident, that:

    he “had no supervisory responsibility” – a submission which was said to be supported by the evidence that it was My Lynn who was the supervisor and further supported by the Level 3 Report which found that there was “potential for confusion as to who was the supervisor on the day”;

    Mr Lynn, in his statement had accepted that he was the supervisor of the employees taking the track measurements;

    the workers on the “Up Illawarra Main Line” – namely the line on which trains travelled towards Sydney – were not protected and particularly vulnerable and that there was no acknowledgement from others (including Mr Lynn) that this was a problem;

    Mr Singh had left his lookout position to intervene in a serious risk posed by workers on the main line which was unprotected and that there was an arrangement within the team that when a lookout moved another person would act as lookout;

    there were no rules about moving worksites;

    he had talked to Mr Lynn about the safety issue and checked back on the Illawarra local line and saw that the warning light was out and raised his arm as the train went by and that the train driver had seen the signal; and

    Mr Singh’s evidence was that no one jumped out of the way of the train and that other evidence was that others gave contemporaneous accounts that they did not regard the incident as a “near miss”.

Mr Singh further contended, in relation to the Kogarah Incident, that he had submitted that:

    Mr Chawdhury was responsible for watching the line and that he was not responsible; and

    it was in respect to a train travelling on the “down line” at Kogarah – namely the train line travelling away from Sydney – on which the “near miss” occurred and that it was Mr Chawdhury who was the lookout on that line and the person responsible.

72    With reference to this litany of submissions, it is respectfully concluded that the Commission had either expressly or implicitly resolved the gist of the factual allegations the subject of these submissions. It is thus the case that the Commission:

    has resolved questions as to conflicts in evidence by making an adverse finding as to the credibility of Mr Singh (Reasons at [316] to [321], [332]) and in providing detailed “examples” in support of its finding that Mr Singh’s evidence was not credible (Reasons at [320]).

The Commission, moreover, has resolved matters of central relevance to its ultimate conclusions, including – and perhaps of most importance:

    its finding as to Mr Singh’s failure “to follow safety policies, procedures and guidelines”: Reasons at [332].

and went on to make further and separate findings as to (for example):

    the “responsibility” of Mr Singh, notwithstanding the “potential for confusion” – even though it had not expressly referred to Mr Lynn’s statement; and

    the reason given by Mr Singh for leaving his lookout position.

There remains no duty upon an administrative decision-maker to expressly refer in its reasons to every submission and every piece of evidence that may be available for consideration. In resolving the gist of a submission, there is no necessity for a decision-maker to address each and every piece of evidence or conflicting evidence of relevance to the gist of the submission. And even though the legal experience and qualifications of members of the Commission may call for a greater level of judicial scrutiny of reasons and findings made (cf. Linfox Australia), the reasons and findings made in the present case more than adequately address the competing arguments being presented. An express reference by a party, even a reference by Counsel, to a particular piece of evidence and an express submission made in respect to that evidence, cannot elevate that evidence and that submission to a status necessarily to be given greater attention or weight than that determined by the decision-maker. What is required of an administrative decision-maker, such as the Commission in the present case, is an engagement with the competing arguments presented for resolution. It is inevitable in any decision-making task that once certain findings of fact have been made, other findings of fact which may previously have been seen to be of greater relevance, may well recede into the background.

CONCLUSIONS

73    It is thus concluded the Commission did in fact engage with the gist of the submissions being advanced to it by Mr Singh on the one hand, and Sydney Rail on the other.

74    An analysis of its Reasons expose the fact that the Commission addressed and resolved:

    the competing submissions advanced to it in respect to the Allegation as generally expressed in the Show Cause letter;

and further addressed and resolved:

    the gist of the competing submissions advanced to it in respect to each of the Particulars set forth in the Show Cause letter.

For the purposes of discharging the jurisdiction entrusted to it, it was most probably sufficient for the Commission to have simply addressed and resolved the Allegation generally expressed.

75    An active intellectual engagement with the submissions advanced on behalf of Mr Singh did not require the Commission to resolve each of the submissions advanced on his behalf in respect to each Particular, or even the Allegation more generally expressed. It was sufficient for the Commission to engage with the substance – or the gist – of the submissions advanced. It in fact did so.

76    Although not dispositive of the arguments now advanced on behalf of Mr Singh before this Court, it may be noted that much the same arguments were presented to the Full Bench of the Fair Work Commission when seeking permission to appeal. Just as the arguments have now been rejected by this Court, the Full Bench reached much the same conclusion as to the merits of the proposed appeal when refusing permission to appeal.

THE ORDER OF THE COURT IS:

  1.    The proceeding is dismissed.

Associate:    

Dated:    22 October 2020